Sunday, October 21, 2012

Bias is Like Pregnancy; Admission for Context is Not Admission for Truth

In reversing a murder conviction  upon finding two different reversible  errors, the New York Court of Appeals in People v Harris (_NY3d_, 2012 NY Slip Op 06990, 3/18/201) clarifed the law in two respects.

First, the Court made clear that just as one cannot be a little pregnant, a prospective juror cannot have a little bias and still be qualified to serve. In Harris a prospective juror instated that that she had "an opinion slightly more in one direction than the other" concerning defendant's guilt or innocence. When asked by defense counsel if her opinion would impact her ability to judge the case based solely on the evidence presented at trial, the prospective juror responded, "[H]ow I feel, opinion-wise, won't be all of what I consider if I'm on the jury," but admitted that it would be "[a] slight part" of what she would consider (emphasis supplied). Trial counsel's challenge for cause was denied. Mr. Harris then utilized a peremptory challenge on the prospective juror and exhausted his peremptory challenges, and, therefore, preserving the for review (see CPL 270.20 [2]) the issue of whether the denial for cause was error.

In reversing Mr. Harris's conviction, the Court of Appeals first noted that it had
consistently held that "a prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the juror states unequivocally on the record that he or she can be fair and impartial" (People v Chambers, 97 NY2d 417, 419 [2002]; see People v Arnold, 96 NY2d 358, 363 [2001]; People v Johnson, 94 NY2d 600, 614 [2000]). "When potential jurors themselves say they question or doubt they can be fair in the case, trial judges should either elicit some unequivocal assurance of their ability to be impartial when that is appropriate, or excuse the juror when that is appropriate," since, in most cases, "[t]he worst the court will have done . . . is to have replaced one impartial juror with another impartial juror" (People v Johnson, 17 NY3d 752, 753 [2011] citing People v Johnson, 94 NY2d 600, 616 [2000]). 

Then  the Court applied these holdings, and ruled that upon hearing from the prospective juror about her sligh opinion that would play a slight part in her deliberations,

it was incumbent upon the trial court to conduct its own follow-up inquiry of the prospective juror once she stated that her preexisting opinion would play only "[a] slight part" in her consideration of the evidence. Given the absence of that inquiring, the trial court committed reversible error in denying defendant's for-cause challenge (see Johnson, 17 NY3d at 753).
Thus, the the Court made clear that even a juror who indicates that she has a slight bias is unqualified to serve unless she subsequently gives the requisite unequivocal assurance of impartiality.

The second basis for reversal was the failure of the trial court to instruct the jury that when hearsay evidence admitted for context it was error to fail to clearly instruct the jury that the hearsay statements were not to be considered for their truth.

Disclosure: Bill Easton and represented Mr. Harris on this appeal. Bill was also the trial attorney who preserved both of these errors.

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