CHALLENGES TO JURORS (CRIMINAL TRIALS)

 

JUROR BIAS

 

Jurors who say they want to hear "both sides of the story" must immediately be instructed that the People exclusively bear the burden of proof, the defendant has the right to remain silent, and the defendant has the the right not to testify or present evidence. After so instructed, the jurors must unequivocally assure the court they will follow those instructions. Denying the challenge in the absence of those remedial efforts required reversal. 

 

Denial of "For Cause" Challenges to Jurors Who Said They Needed to Hear "Both Sides of the Story" Required Reversal

 

The First Department reversed defendant's conviction because the trial judge did not make inquiries to ensure jurors could be fair before denying defense counsel's "for cause" challenges.  The jurors said they needed to hear "both sides of the story" indicating they would expect the defendant to testify.  The judge failed to immediately instruct the jury that the defendant was under no obligation to testify:

 

The court erred in denying, without further inquiry, defendant's challenges for cause to three prospective jurors, against whom defendant ultimately exercised peremptory challenges. In response to defense counsel's questioning during jury selection, the panelists at issue expressed, in one form or other, that it would be difficult for them to decide the case if they did not "hear from" defendant or hear his "side of the story." The court did not instruct the panel on the People's exclusive burden of proof and a defendant's right not to testify, and it did not elicit from the panelists at issue "some unequivocal assurance" that they would be "able to reach a verdict based entirely upon the court's instructions on the law" ... .

 

A prospective juror's statement to the effect that it is "important to hear both sides" raises the "appear[ance of] assertion of a defendant's obligation to present a defense" ... . Here, although the court had not yet instructed the jurors on the relevant legal principles, defense counsel framed several of her questions in terms of the "right to remain silent." Further, counsel's several other attempts to place her questioning in the context of the legal instructions the jurors would receive were cut short by the court, which indicated that it would instruct the jurors "at the appropriate time." However, the circumstances called for a prompt instruction on the relevant principles regarding the burden of proof and a defendant's right not to testify or present evidence, along with the elicitation of unequivocal assurances that the panelists would follow that charge. People v Jackson, 2015 NY Slip Op 01385, 1st Dept 2-17-15

 

 

It is not enough that a juror says he or she will "try" to be fair. A juror must unequivocally assure the court his or her prior state of mind will not influence the verdict, and the verdict will be impartial and based solely on the evidence. Denying the challenge in the absence of those assurances required reversal.

 

"For Cause" Challenges to Jurors Who Could Only Say They Would "Try" to Be Fair Should Have Been Granted

 

The Second Department reversed defendant's conviction because "for cause" challenges to jurors were denied.  The jurors, who had been victims of crime, could only say they would "try" to be fair:

 

CPL 270.20(1)(b) provides that a prospective juror may be challenged for cause if the juror "has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial." Where an issue is raised concerning the ability of a prospective juror to be fair and impartial, the prospective juror must state unequivocally that his or her prior state of mind will not influence his or her verdict, and that he or she will render an impartial verdict based solely on the evidence ... . "A prospective juror's responses construed as a whole, must demonstrate an absolute belief that his [or her] opinion will not influence his [or her] verdict'" ... .

 

Here, during voir dire, two prospective jurors indicated that due to incidents in which they had been the victims of crimes, they were unsure whether they could be objective or impartial. The first prospective juror indicated that he had been "attacked more than once" by gangs in the past, and that the experience colored his opinion of gang members. When pressed, he repeatedly stated that he could only "try" to be fair and impartial. The second prospective juror at issue indicated that he had been the victim of a robbery 11 years earlier, and as a result, moved from Brooklyn to Queens. When asked if that was going to affect his ability to be fair, the juror responded, "I'm not sure, probably not." He subsequently stated, "I will try my best." The trial court denied for-cause challenges to the prospective jurors and, since the defense had exhausted all of its peremptory challenges, the second prospective juror at issue was seated.

 

At no point did the prospective jurors unequivocally state that their prior states of mind would not influence their verdict, and that they would render an impartial verdict based solely on the evidence. Under the circumstances, the trial court should have granted the defendant's challenges for cause ... . People v Garcia, 2015 NY Slip Op 01468, 2nd Dept 2-18-15

 

 

Same issue and result in People v Reyes, 2015 NY Slip Op 01473, 2nd Dept 2-18-15

 

 

 

Juror's expression of "sympathy" for police-officer witnesses and denying the challenge in the absence of an unequivocal assurance the juror would not be biased in favor of the police required reversal.

 

Reversible Error to Deny For Cause Challenge to Biased Juror

 

The Fourth Department reversed defendant's conviction because one of the jurors indicated a bias in favor of police officers [the for cause challenge to the juror was denied and the peremptory challenges were exhausted]:

 

Upon questioning by defense counsel, a prospective juror stated that there was a possibility that he would have "sympathy" for police officer witnesses. Despite further questioning on the issue, the prospective juror did not provide an unequivocal assurance that he would not be biased in favor of the police. It is well settled that, once a potential juror has indicated a possible bias, he or she "must be excused unless [he or she] provide[s] unequivocal assurance that [he or she] can set aside any bias and render an impartial verdict based on the evidence' " ... . Inasmuch as the court erred in denying defendant's challenge for cause, we reverse the judgment and grant a new trial. People v Tapia-DeJesus, 2015 NY Slip Op 00167, 4th Dept 1-2-15

 

 

 

A juror stated she "could not believe" a police officer would get on the witness stand and lie about a person selling drugs. The judge's failure to elicit an assurance of the juror's ability to remain impartial before denying defendant's challenge required reversal.

 

Conviction Reversed---Court Denied For Cause Challenge to Biased Juror Without Eliciting an Unequivocal Assurance the Juror Will Be Impartial

 

The Second Department reversed defendant's conviction because an admittedly biased juror was not eliminated after defendant's "for cause" challenge.  (Defendant exhausted his peremptory challenges.):

 

When a question is raised regarding a prospective juror's ability to render an impartial verdict, the prospective juror must expressly state in unequivocal terms that "his prior state of mind concerning either the case or either of the parties will not influence his verdict, and he must also state that he will render an impartial verdict based solely on the evidence" ... . In considering whether such statements are unequivocal, the juror's testimony must be taken as a whole, and where there remains any doubt, the prospective juror should be discharged for cause ... . Thus, when a potential juror states that he or she questions or doubts that he or she can be fair in the case, the trial judge should either elicit some unequivocal assurance of the juror's ability to be impartial or excuse the juror ... .

 

Here, as the prospective juror stated that she could not believe that police officers would get on the witness stand and lie about a person selling drugs, the court erred in denying the defendant's challenge for cause without first eliciting some unequivocal assurance of the juror's ability to be impartial ... . People v Harris, 2015 NY Slip Op 00554, 2nd Dept 1-21-15

 

 

 

BATSON CHALLENGES

 

"With respect to the first prospective juror, the prosecutor employed a peremptory challenge to strike him as a juror because of a concern that his position as a church deacon would make it difficult for him to sit in judgment of another individual. Although the prospective juror indicated during voir dire that his position as a church deacon would not affect his decision making, the prosecutor maintained that it was just [his] feeling that it may be difficult having [someone in] that position to then sit in judgment of someone.

 

Contrary to the Supreme Court's determination, the facially race-neutral reason advanced by the prosecutor for employing a peremptory challenge was pretextual. The prosecutor did not offer any explanation for how employment as a church deacon related to the factual circumstances of the case or qualifications to serve as a juror ... . Furthermore, the prosecutor's challenge was admittedly based on his 'feeling' that a church deacon would have difficulty sitting in judgment of another, and the prosecutor failed to pursue questioning of the prospective juror to ascertain whether this intuitive feeling was founded in fact ...". 

 

Under a Batson Analysis, the Prosecutor's Peremptory Challenges to Two Black Jurors Were "Pretextual" Requiring Reversal

 

The Second Department determined the reasons proffered by the prosecutor for the peremptory challenge of two black jurors were "pretextual" under a Batson analysis, requiring reversal.  With regard to one of the two pretextual challenges, the court wrote:

 

A new trial is necessary because the prosecutor exercised her peremptory challenges in a discriminatory manner (see Batson v Kentucky, 476 US 79) as to two black prospective jurors. In Batson, the United States Supreme Court formulated a three-step test to assess whether peremptory challenges have been used to exclude potential jurors on the basis of race, gender, or other protected categories ... . In step one, the moving party must make a prima facie case of purposeful discrimination by "showing that the facts and circumstances of the voir dire raise an inference that the other party excused one or more jurors for an impermissible reason" ... . If the moving party makes a prima facie showing, the inquiry proceeds to step two, and the burden shifts to the adversary to provide a facially neutral explanation for the challenge. If the nonmoving party "offers facially neutral reasons supporting the challenge, the inference of discrimination is overcome" ... . Once facially neutral reasons are provided, the inquiry proceeds to step three, and the burden shifts back to the moving party to prove purposeful discrimination, and " the trial court must determine whether the proffered reasons are pretextual'" ..., including whether the reasons apply to the facts of the case, and whether the reasons were applied to only a particular class of jurors and not to others... . * * *

 

With respect to the first prospective juror, the prosecutor employed a peremptory challenge to strike him as a juror because of a concern that his position as a church deacon would make it difficult for him to sit in judgment of another individual. Although the prospective juror indicated during voir dire that his position as a church deacon would not affect his decision making, the prosecutor maintained that it was "just [his] feeling that it may be difficult having [someone in] that position to then sit in judgment of someone."

 

Contrary to the Supreme Court's determination, the facially race-neutral reason advanced by the prosecutor for employing a peremptory challenge was pretextual. The prosecutor did not offer any explanation for how employment as a church deacon related to the factual circumstances of the case or qualifications to serve as a juror ... . Furthermore, the prosecutor's challenge was admittedly based on his "feeling" that a church deacon would have difficulty sitting in judgment of another, and the prosecutor failed to pursue questioning of the prospective juror to ascertain whether this intuitive feeling was founded in fact ... . When the reason advanced for a peremptory challenge relates to a juror's appearance, deference must be afforded to the trial court's findings with regard to pretext, as the trial court has the distinct advantage of being able to observe the juror ... . However, the same cannot be said when the reason advanced for the challenge is based on the juror's profession or background ... . Indeed, it would not "be acceptable for this Court to invoke the rule providing for deference to the trial court in matters of credibility in order to rubber stamp every determination relating to the legitimacy of a peremptory challenge" ... . People v Bell, 2015 NY Slip Op 01812, 2nd Dept 3-4-15

 

 

 

 

RELATIONSHIP WITH WITNESSES

 

"A juror whose relationship with a potential witness is so close that it is likely to preclude him [or her] from rendering an impartial verdict" (CPL 270.20 [1] [c]) must be excused even if the juror states that he or she can be impartial, because "the risk of prejudice arising out of the close relationship . . . [is] so great that recital of an oath of impartiality could not convincingly dispel the taint ... . In determining whether a relationship is so close as to require disqualification, a court should consider factors such as the frequency, recency or currency of the contact, whether it was direct contact, . . . the nature of the relationship as personal and/or professional . . . [and] any facet of the relationship likely to preclude the prospective juror from being impartial ...".

 

 

Juror Had Personal/Professional Relationships with Two Prosecution Witnesses---For Cause Challenge Should Have Been Granted

 

 

The Third Department determined the defendant's conviction must be reversed because a juror had personal/professional relationships with two of the prosecution witnesses and defendant's for cause challenge to the juror was denied:

 

 

A juror whose relationship with a potential witness is so close "that it is likely to preclude him [or her] from rendering an impartial verdict" (CPL 270.20 [1] [c]) must be excused even if the juror states that he or she can be impartial, because "the risk of prejudice arising out of the close relationship . . . [is] so great that recital of an oath of impartiality could not convincingly dispel the taint" ... . In determining whether a relationship is so close as to require disqualification, a court should consider factors "such as the frequency, recency or currency of the contact, whether it was direct contact, . . . the nature of the relationship as personal and/or professional . . . [and] any facet of the relationship likely to preclude the prospective juror from being impartial" ... . As to the first witness, a former working relationship, without more, will not necessarily give rise to implied bias requiring disqualification ... . Here, however, the juror described the relationship as more than merely professional; he stated that he knew the witness well, had discussed many subjects with him, had strong feelings about him and tended to believe him, and he volunteered that he was concerned as to whether the relationship would affect his judgment. The juror's longstanding social relationship with the second witness was sufficiently close that the witness was aware that the juror had been called to jury duty on the case he had investigated, and sufficiently current that the juror and witness had spoken only a few days before the trial. Thus, this relationship, like that with the first witness, "was far more than a 'nodding acquaintance'" ... . Failure to excuse the juror could have "create[d] the perception that the accused might not receive a fair trial before an impartial finder of fact" ... . Accordingly, based upon these two relationships, defendant's challenge for cause should have been granted. People v Hamilton, 2015 NY Slip Op 02804, 3rd Dept 4-2-15