THE DEFENSE CHALLENGE TO A JUROR WHO EXPRESSED SERIOUS DOUBTS ABOUT BEING ABLE SERVE SHOULD HAVE BEEN GRANTED, DESPITE HER ULTIMATE STATEMENT SHE COULD DO WHAT IS NECESSARY TO SERVE; THE NEW CPL ARTICLE 245 DISCOVERY STATUTES IMPOSE NEW BURDENS ON THE PEOPLE ENCOMPASSING ROSARIO AND BRADY MATERIAL AND EXTENDING TO DOCUMENTS WHICH ARE NOT IN THE PEOPLE’S POSSESSION, EVEN WHERE THE DEFENSE CAN ACCESS THOSE DOCUMENTS (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s conviction and ordering a new trial, offered important, substantial discussions of (1) how to handle a juror who expresses doubt about the ability to serve on the jury, and (2) the new, much broader and far-reaching disclosure requirements imposed upon the People by the CPL Article 245. The juror expressed doubt about her ability to serve because of her family obligations, her indecisiveness and her inability to follow the orders and instructions of the court. Ultimately when asked if she thought she could do what is necessary to be a juror, she said “yes.” The Fourth Department held the defense challenge to the juror should not have been denied. On the CPL Article 245 issue, the Fourth Department explained that the statute goes far beyond the old, pre-statute, criteria for turning over Rosario and Brady material, to include collecting and turning over discovery from agencies outside the prosecutor’s office, even if the defendant could gain access to those that discovery him or herself: The Fourth Department held the prosecutor committed numerous violations of CPL Article 245 and left it to the judge in the next trial to impose sanctions:

… [T]he prospective juror never stated, unequivocally or otherwise, that she would follow the court’s instructions and apply the law to the facts. Nor did she state that her child care concerns had been alleviated such that she could devote her undivided attention to the trial.

Just as a “general statement of impartiality that does not explicitly address the specific cause of the preexisting bias is not sufficient” … , a general statement from a prospective juror that they can do what it takes to be a juror is not sufficient to rehabilitate the prospective juror where, as here, the prospective juror had previously offered specific reasons for being unable to serve impartially. * * *

Although transcripts that are not in the People’s possession and control are not subject to Brady and Rosario disclosure requirements … , that fact is of no moment for purposes of CPL 245.20. Even where documents are “beyond the prosecutor’s control under Rosario and constructive possession under CPL 245.20 (2), the presumption of openness, … the duty to maintain the flow of information … , the continuing duty to disclose … , and, perhaps most importantly, the goals of article 245 require that when the prosecutor becomes aware [after making the requisite reasonable inquiries] that an agency outside their control holds information that relates to the subject matter of the case, best practice dictates that the People take steps . . . to obtain those records notwithstanding the fact [that] the information may be available to the defendant by equivalent process” … . People v Heverly, 2024 NY Slip Op 00524, Fourth Dept 2-2-24

Practice Point; A juror who expresses serious doubts about being able to serve, doubts which are not addressed by further questioning, should be excluded, even if the juror ultimately states he or she can do what is necessary to serve.

Practice Point: CPL Article 245 has drastically expanded the burden on the People to timely turn over discovery, including Rosario and Brady material and documents which are not in the People’s possession, even where the defense also has access to those documents. The is an important discussion of the new criminal discovery rules which should be required reading for defense counsel, prosecutors and judges.