Monday, October 1, 2018

Implied Bias of a Prospective Juror Cannot Be Cured With An Expurgatory Oath

by Brian Shiffrin

    It is important understand the differences between actual bias and implied bias of prospective jurors. CPL§ 270(1)(b), deals with a prospective juror  who has evinced an actual bias, defined as  “a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at trial.” If a juror’s statements during voir dire raise a doubt about his impartiality, such as statements that he has a pre-formed opinion about the case, that juror cannot be permitted to sit unless he states unequivocally that he can be fair and decide the case solely on the evidence adduced at trial (People v Johnson, 17 NY3d 752, 753 [2011]; People v Chambers, 97 NY2d 417, 419 [2002]; People v Arnold, 96 NY2d 358, 362-363 [2001]; People v Johnson, 94 NY2d 600, 614 [2000]). Thus, actual bias can be cured by an expurgatory oath.
Another subdivision, CPL § 270(1)(c), permits challenges for cause stemming from the implied bias of a prospective juror’s relationship with either party, witness, or counsel.
Specifically, this subdivision, very broadly permits challenges for cause where a prospective juror
is related within the sixth degree by consanguinity or affinity to the defendant, or to the person allegedly injured by the crime charged, or to a prospective witness at the trial, or to counsel for the people or for the defendant;. . . .  that he bears some other relationship to any such person of such nature that it is likely to preclude him from rendering an impartial verdict
(CPL§ 270.20[1][c].)

As quoted above, CPL§ 270.20(1)(c) is not limited to familial relationships. The Court of Appeals has explained that this subdivision was written to provide for wider listing of relationships subject to challenge for cause than the Code of Criminal Procedure had previously allowed which is why it included the catchall last sentence,  not in the Code,  authorizing for cause challenges to a prospective juror who bears some other relationship to any such person of such nature that it is likely to preclude him from rendering an impartial verdict (People v Culhane, 33 NY2d 90, 104-05, n2 [1973]).  These relationships have been held to include a wide variety of professional and personal relationships (see, e.g., People v Rentz, 67 NY2d 829, 830–831 [1986] [juror with professional relationship with two witnesses and personal one with one witness should have been disqualified]; People v. Branch, 46 N.Y.2d at 650–651 [looked at “direct contact” with the District Attorney and that juror had “worked directly” with trial prosecutor, in addition to having a personal relationship with trial prosecutor]; People v. Littebrant, 55 AD3d 1151, 1154, [2008] [juror with professional and long-term personal relationship with key defense witness properly excused for cause]; People v Bedard, 132 AD3d 1070 [3d Dept 2015] [friendship with District Attorney required granting of a for cause challenge]; People v. Clark, 125 A.D.2d 868 [friendship with District Attorney required granting of for cause challenge]; People v Meyer, 78 AD2d 662, 664 [2d Dept 1980] [limited social acquaintance and a business relationship with the prosecution witness created implied bias requiring exclusion]; People v Wlasiuk, 90 AD3d 1405, 1412 [3d Dept 2011] [juror failed to disclosprofessional relationship as coworker to victim]). 
Critically, in contrast to challenges for cause based on actual bias pursuant to CPL § 270(1)(b), the implied bias of a prospective juror’s relationship with either a party, witness, or counsel, cannot be cured with an expurgatory oath (People v Furey, 18 NY3d 284, 287-88 [2011]; People v Branch, 46 NY2d 645, 649-52 [1979] [“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”]).
Thus, the Court of Appeals has explained that a challenge for cause for a person who has a relationship covered by  CPL § 270(1)(c)
requires automatic exclusion from jury service regardless of whether the prospective juror declares that the relationship will not affect her ability to be fair and impartial (see e.g. People v Branch, 46 NY2d 645, 650 [1979]; People v Rentz, 67 NY2d 829, 831 [1986]). And such bias . . .creates the perception that the accused might not receive a fair trial before an impartial finder of fact.  For this reason, we have advised trial courts to exercise caution in these situations by leaning toward “disqualifying a prospective juror of dubious impartiality” (People v Branch, 46 NY2d 645, 651.)
(People v Furey, 18 NY3d 284, 287-88 [2011].)
This past week, citing and applying Furey, the Fourth Department, in People v Farley (2018 NY Slip Op 06380 [4th Dept]), reversed a conviction where the the juror acknowledged that the medical witness was the surgeon who save her life, despite the juror's insistence that she could be fair. Remember, reversal only occurs if  the defendant exercised a peremptory challenged and and exhausted his peremptory challenges (see CPL 270.20 [2]).




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