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“For Cause” Challenge to Juror Who Socialized with District Attorney Should Have Been Granted—Concept of “Implied Bias” Explained

The Third Department determined a new trial was necessary because of the denial of a “for cause” challenge to a juror who socialized with the district attorney (the case was tried by an assistant district attorney). The court explained the concept of “implied bias” which is not easily “cured:”

A statement by a potential juror suggesting a possible bias can be cured, and the juror not excused, if the juror “provide[s] ‘unequivocal assurance that [he or she] can set aside any bias and render an impartial verdict based on the evidence'” … . However, where, as here, the challenge for cause involves a juror’s relationship with a trial participant, a so-called “implied bias” may be implicated which “requires automatic exclusion from jury service regardless of whether the prospective juror declares that the relationship will not affect [his or] her ability to be fair and impartial” … . Of course, “[n]ot all relationships . . . require disqualification . . . [and] [t]he frequency of contact and nature of the parties’ relationship are to be considered in determining whether disqualification is necessary” … . As a practical matter, “the trial court should lean toward disqualifying a prospective juror of dubious impartiality” … .

Here, during voir dire, juror no. 3372 stated that her family was “good friends” with the family of the District Attorney. She added that she socialized with the District Attorney, including having him and his wife as dinner guests at her home, and she and her husband had dined as guests at the District Attorney’s home. County Court nonetheless denied defendant’s challenge for cause as to such juror. People v Bedard, 2015 NY Slip Op 07703, 3rd Dept 10-22-15

 

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Failure to Directly Address a Juror’s Stated Bias Required Reversal—“Bright Line” Rule Explained

The Third Department, over a dissent, determined that, once the prospective juror (No. 383) expressed a bias based upon the age difference between the adult defendant and child complainant, the failure to gain the assurance from the juror that her prior state of mind will not influence her verdict and she will render an impartial verdict based solely on the evidence constituted reversible error. The fact that the juror assured the judge she would not vote to convict if she had a reasonable doubt and that she would follow the law as instructed was not enough to address the expressed age-related bias.  A juror who has expressed a bias must unambiguously assure the court she will put her bias aside:

Once a prospective juror has identified his or her own biased perspective, he or she “must expressly state that his [or her] prior state of mind concerning either the case or either of the parties will not influence his [or her] verdict, and he [or she] must also state that he [or she] will render an impartial verdict based solely on the evidence” … . “[N]othing less than a personal, unequivocal assurance of impartiality can cure a juror’s prior indication that [he or] she is predisposed against a particular defendant or particular type of case” …, and, accordingly, the “bright-line standard . . . followed throughout the state” is “that a prospective juror who expresses partiality towards [one party] and cannot unequivocally promise to set aside this bias should be removed for cause” … . * * *

Considering the entirety of the questions posed to juror No. 383 and her responses, juror No. 383 unambiguously acknowledged a form of bias — based on the respective ages of the victim and defendant — that she identified as preventing her from being a fair and impartial juror. After juror No. 383 identified her own bias, she was never asked a question that referenced whether she could set aside any biases she held, generally, or whether she could set aside her specific bias regarding the respective ages of defendant and the victim. Further, in her responses to questions posed to her, juror No. 383 never specifically made reference to the age issue after she identified it as preventing her from being fair and impartial, and she never agreed, more generally, that she could set aside any bias that she held and decide the case in a fair and impartial manner based on the evidence presented. Therefore, juror No. 383 did not “unambiguously state that, despite preexisting opinions that might indicate bias, [she would] decide the case impartially and based on the evidence,” because she never made any statement regarding her preexisting opinion, let alone an unambiguous statement that she could set such opinion aside (People v Arnold, 96 NY2d at 363)[FN3]. Accordingly, County Court committed reversible error in denying defendant’s for-cause challenge to a juror who never contradicted or retracted her statement that her bias related to the respective ages of defendant and the victim prevented her from being a fair and impartial juror … . People v Warrington, 2015 NY Slip Op 06380, 3rd Dept 7-30-15

 

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“For Cause” Challenges to Three Jurors Who Said Only They Would “Try” to Be Fair Should Have Been Granted—New Trial Required

The Second Department reversed defendant’s conviction because Supreme Court should have granted three “for cause” challenges to jurors. All three jurors expressed doubts about their abilities to be fair based upon personal experiences. All three said only that 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 prior opinion will not influence his or her verdict … . * * *

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 Supreme Court should have granted the defense’s challenges for cause to all three prospective jurors … . People v Alvarez, 2015 NY Slip Op 06354, 2nd Dept 7-29-15

 

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Sworn Juror Who Was From the Same Neighborhood as Defendant Stated His Fear of Drug Dealers Would Prevent Him from Reaching an Impartial Verdict—the Juror Was Properly Discharged as “Grossly Unqualified” and “For Cause” Based Upon a Newly Discovered Ground

The First Department determined a sworn juror was properly discharged as “grossly unqualified,” as well as “for cause.” The juror lived in the neighborhood where the crime occurred and where defendant and his accomplices lived. The juror told the court that his fear of drug dealers in his neighborhood would prevent him from reaching an impartial verdict. The juror had not mentioned his fear before he was sworn:

The juror’s fear provided grounds for the court to dismiss him as “grossly unqualified to serve” pursuant to CPL 270.35(1), even if the court did not cite the statutory phrasing, because it was clear that the juror could not remain impartial. Additionally, since the juror had not mentioned that he feared for his safety when questioned by the court and the parties before being sworn, he was properly discharged for cause, on a newly discovered ground, pursuant to CPL 270.15(4). People v Ward, 2015 NY Slip Op 04928, 1st Dept 6-11-15

 

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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

 

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Court’s Failure to Elicit Unequivocal Declarations Jurors Could Set Aside their Biases Required Reversal

The Fourth Department determined the court’s failure to elicit an unequivocal declaration jurors could set aside their bias and render an impartial verdict required reversal:

It is well established that “[p]rospective jurors who make statements that cast serious doubt on their ability to render an impartial verdict, and who have given less-than-unequivocal assurances of impartiality, must be excused” … . While no “particular expurgatory oath or talismanic’ words [are required,] . . . [prospective] jurors must clearly express that any prior experiences or opinions that reveal the potential for bias will not prevent them from reaching an impartial verdict” … . During voir dire, the statements of three prospective jurors with respect to the credibility of the testimony of police officers or bias in favor of the police cast serious doubt on their ability to render an impartial verdict …, and those prospective jurors failed to provide “unequivocal assurance that they [could] set aside any bias and render an impartial verdict based on the evidence” … . Contrary to the court’s conclusion, we conclude that the nodding by these three prospective jurors as part of a group of prospective jurors who were “all nodding affirmatively in regard to the statement [of another prospective juror]” was “insufficient to constitute such an unequivocal declaration”… . People v Strassner, 2015 NY Slip Op 02342, 4th Dept 3-20-15

 

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“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

 

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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

 

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Judge’s Failure to Question Prospective Juror Re: the Juror’s Possible Bias In Favor of Police Officers Was Reversible Error/Prosecutor’s Suggestion in Summation that Simply Being a Defendant Is Evidence of Guilt Was Grounds for Reversal As Well

The First Department reversed defendant's conviction because the trial judge did not further question a juror who indicated bias in favor of police officers.  [The judge, in denying defense counsel's “for cause” challenge, erroneously indicated it was defense counsel's role to question the juror about the juror's ability to be fair.]  In addition, the prosecutor's suggestion in summation that simply being a defendant is evidence of guilt was grounds for reversal:

Criminal Procedure Law § 270.20(1)(b) provides that a party may challenge a prospective juror for cause if the juror “has a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at trial.” Upon making this type of challenge, “a juror who has revealed doubt, because of prior knowledge or opinion, about [his] ability to serve impartially must be excused unless the juror states unequivocally on the record that [he] can be fair” … . The CPL “does not require any particular expurgatory oath or talismanic words” …, but challenged jurors “must in some form give unequivocal assurance that they can set aside any bias and render an impartial verdict based on the evidence” … . Those who have given “less-than-unequivocal assurances of impartiality . . . must be excused” and “[i]f 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” … .

In this case, the prospective juror gave a response that was uncertain at best, stating that he did not know and “couldn't say” whether he would be able to judge an officer's credibility as opposed to a civilian witness. * * * Given this ambiguity … it was incumbent upon the trial court to take corrective action to elicit unequivocal assurance from the prospective juror that he would be able to reach a verdict based solely upon the court's instructions on the law … . …

…[T]he prosecutor's summation remarks regarding reasonable doubt also constituted reversible error, as these remarks suggested that the jury should convict based on facts extraneous to the trial. Specifically, the comments “linked [the defendant] to every defendant who turned out to be guilty and was sentenced to imprisonment,” thus inviting the jury to consider his status as a defendant as “evidence tending to prove his guilt” … . Moreover, the prosecutor's comments tended to minimize the jury's sense of responsibility for the verdict. These remarks exceed the bounds of permissible advocacy. People v Jones, 2015 NY Slip Op 00797, 1st Dept 2-3-15


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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

 

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