Challenges for cause - cops and prosecutors

by Jill Paperno

Author of "Representing the Accused: A Practical Guide to Criminal Defense"

There are times that a police officer or prosecutor may wind up in the jury panel, or even seated in the box. As you know, when selecting a jury, if you question a witness who seems to have a bias, the witness may make an expurgatory statement that, “Of course, I can be fair,” and you may wind up having to use a peremptory. But there are some kinds of challenges for cause for which that “expurgatory oath” does not work. Often, judges will let these potential jurors go on challenges for cause, but sometimes they don’t. There are several subdivisions to CPL 270.20(1), the statute that addresses challenges for cause. The one we know best is 270.20(1)(b), which states, 1. A challenge for cause is an objection to a prospective juror and may be made only on the ground that: (b) He has a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at the trial; CPL 270.20(1)(c) is the subdivision that lists categories of individuals who are presumptively biased. The statute states: 1. A challenge for cause is an objection to a prospective juror and may be made only on the ground that: (c) He 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;  or that he is or was a party adverse to any such person in a civil action;  or that he has complained against or been accused by any such person in a criminal action;  or 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;  or Here is the interesting part. With respect to 270.20(1)(a), the state of mind subdivision, a potential juror can overcome the challenge for cause by assuring the trial court that they do not have the state of mind likely to preclude them from rendering an impartial verdict. (But there are ways of getting around this claim by continuing to question the juror.) When a person falls within the category of 270.20(1)(c), which has to do with relationships, they cannot simply assure the court the relationship will not cause them to be biased. This category of challenges for cause is described as “implied bias.” With respect to a prosecutor, the Second Department just addressed this issue in People v. Cortes. The Court stated, A prospective juror may be challenged for cause on several grounds, including that he or she has a “relationship” with counsel for the People “of such a nature that it is likely to preclude him [or her] from rendering an impartial verdict” (CPL 270.20[1][c]; see People v. Furey, 18 N.Y.3d 284, 287, 938 N.Y.S.2d 277, 961 N.E.2d 668). Such “implied bias” 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” (People v. Furey, 18 N.Y.3d at 287, 938 N.Y.S.2d 277, 961 N.E.2d 668 [internal quotation marks omitted]; see People v. Branch, 46 N.Y.2d 645, 651, 415 N.Y.S.2d 985, 389 N.E.2d 467). Here, during jury selection, the subject prospective juror informed the Supreme Court that she was presently working as an assistant district attorney, within the Queens County District Attorney's Office, the same agency that was prosecuting the defendant, and that she was familiar with the prosecutor, the defense attorney, and the Justice. As the People correctly concede, the juror's contemporaneous working relationship with the agency prosecuting the defendant required that juror's dismissal for cause (see People v. Furey, 18 N.Y.3d at 288, 938 N.Y.S.2d 277, 961 N.E.2d 668; People v. Branch, 46 N.Y.2d at 650–651, 415 N.Y.S.2d 985, 389 N.E.2d 467; People v. Greenfield, 112 A.D.3d 1226, 1229–1230, 977 N.Y.S.2d 486). Because the defendant challenged this juror for cause and thereafter exhausted all of his peremptory challenges prior to the completion of jury selection, the court's error in denying the for-cause challenge requires reversal of the judgment of conviction and remittitur for a new trial (see CPL 270.20[2]; People v. Wilson, 200 A.D.3d 1005, 158 N.Y.S.3d 255; People v. Rojas, 184 A.D.3d 761, 762, 124 N.Y.S.3d 246). People v. Cortes, No. 2014/16, 2022 WL 1160957, at *1 (N.Y. App. Div. Apr. 20, 2022) One of the cases cited in Cortes is People v. Branch, a 1979 Court of Appeals decision, which dealt with a police officer who was a potential juror. Like the prosecutor in Cortes, the police officer was subject to a different analysis, and the expurgatory oath is not available. As stated, under the old law an expurgatory oath was not available where “implied bias” was shown. The reason for this rule was that the risk of prejudice arising out of the close relationship between the prospective juror and one of the key participants in the trial was so great that recital of an oath of impartiality could not convincingly dispel the taint. In enacting CPL 270.20 (subd. 1, par. (c)) the Legislature broadened the list of suspect relationships to exclude from jury service those persons who bear “some other relationship * * * likely to preclude (them) from rendering an impartial verdict”. To be sure such individuals are equally unfit to sit as jurors as are those who fall within the other prohibited categories. The expurgatory oath was never applied where any of the other suspect relationships were involved, and there is no indication whatsoever that the Legislature intended to diverge from this principle here (see People v. Culhane, 33 N.Y.2d 90, 104, n. 2, 350 N.Y.S.2d 381, 394, 305 N.E.2d 469, 478). People v. Branch, 46 N.Y.2d 645, 651, 389 N.E.2d 467, 469 (1979) The “implied bias” analysis is still good. In addition to being cited this week in Cortes, the First Department noted its applicability in a 2019 case, People v. McGregor. “Implied bias” exists where a juror “bears some ... relationship to any such person [defendant, witness, prosecution] of such nature that it is likely to preclude [the juror] from rendering an impartial verdict” (CPL 270.20[1][c]; People v. Branch, 46 N.Y.2d at 649–650, 415 N.Y.S.2d 985, 389 N.E.2d 467). “[T]he frequency of contact and nature of the parties' relationship are to be considered in determining whether disqualification is necessary” (People v. Furey, 18 N.Y.3d 284, 287, 938 N.Y.S.2d 277, 961 N.E.2d 668 [2011]). Implied bias “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” (People v. Furey, 18 N.Y.3d at 287, 938 N.Y.S.2d 277, 961 N.E.2d 668; People v. Rentz, 67 N.Y.2d 829, 501 N.Y.S.2d 643, 492 N.E.2d 771 [1986] [juror's statement at posttrial hearing that relationship did not affect his impartiality is ineffective] ). People v. McGregor, 179 A.D.3d 26, 30, 113 N.Y.S.3d 675, 678 (2019) So make sure you develop the relationships in your voir dire, including frequency of contact, connection with the department and individuals within it, and more.