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THE JUDGE ASKED THE ADMITTEDLY BIASED JUROR WHETHER HE COULD DISREGARD A POLICE OFFICER’S TESTIMONY IF HE FELT THE OFFICER WAS LYING AND THE JUROR SAID HE COULD; THE QUESTION AND ANSWER DID NOT PROVIDE AN UNEQUIVOCAL ASSURANCE THE JUROR COULD RENDER A VERDICT SOLELY ON THE EVIDENCE; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined the judge’s questions for the juror, who expressed a bias in favor of police officer, did not elicit an unequivocal assurance the juror could put aside the bias and render a verdict solely on the evidence:

The challenged panelist, who had many connections to law enforcement, stated “I’m definitely bias[ed] toward law enforcement, toward police officers. I know a lot of cops. If you ask me a plain question, I’ll say yes.” …

… [T]he court asked if the panelist could “evaluate the testimony,” and if a witness was “not telling the truth” and “happen[ed] to be a police officer,” would he “disregard that just because [his] best friend is a cop?” The court’s question was not properly framed to elicit an assurance of impartiality. When the panelist, somewhat confused by the court’s inquiry, replied, “No, if I’m understanding your question, I wouldn’t,” he did no more than confirm that in the event he actually found an officer’s testimony to be perjurious, the panelist would not overlook that fact because of his pro-police bias. The court’s next question — “You would be able to evaluate?” — and the panelist’s response that he “would be able to,” likewise fell short of the required express and unequivocal declaration … . “If there is any doubt about a prospective juror’s impartiality, trial courts should err on the side of excusing the juror, since at worst the court will have replaced one impartial juror with another” … . People v Tate, 2022 NY Slip Op 05286, First Dept 9-27-22

Practice Point: Here the potential juror acknowledged his bias in favor of police officers. The judge asked the juror if he could ignore a police officer’s testimony if he felt the officer was lying and the juror said he could. The First Department did not view the question and answer as providing an unequivocal assurance the juror could put aside his bias and render a verdict solely on the evidence. Conviction reversed.

 

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