by
James Eckert
In People v Johnson (2011 NY Slip Op 04764 [6/9/11])the Court of Appeals ruled that a juror who said she could set aside her personal views on the insanity defense and could apply the law as set forth by the court should have been removed for cause based on subsequent statements by the juror on the same subject matter. Specifically, in Johnson the Court held that a juror who had written a college research paper on insanity defenses (the only defense at trial), and who initially said she would set aside her personal views and apply the law as instructed, should have been excused for cause when she later said she had a "strong bias" and that she might be biased in how she interpreted the evidence and was not certain she could be fair. Significantly, no further inquiry was made after these later comments, and the for cause challenge was denied. Defendant bumped the potential juror, and, as required to raise this issue on appeal, exhausted his peremptories.
This case is important both because it establishes that a statement of an ability to set aside one's opinions does not protect a juror from subsequent statements to the contrary. It is also important because it establishes the legitimacy of revisiting a topic which the court and prosecutor might feel that they have successfully covered already. This case implies that it is not only potentially fruitful to elicit similar statements from a juror, but also that it is improper to foreclose questioning even where a juror already said she could be fair and/or follow the law. This is especially true where there is a strong indication of bias and a weak or pro forma recitation of an ability to set it aside.
Sunday, June 12, 2011
In Deciding For Cause Challenges Courts Must Consider Prospective Juror's Last Statement
by
James Eckert
In People v Johnson (2011 NY Slip Op 04764 [6/9/11])the Court of Appeals ruled that a juror who said she could set aside her personal views on the insanity defense and could apply the law as set forth by the court should have been removed for cause based on subsequent statements by the juror on the same subject matter. Specifically, in Johnson the Court held that a juror who had written a college research paper on insanity defenses (the only defense at trial), and who initially said she would set aside her personal views and apply the law as instructed, should have been excused for cause when she later said she had a "strong bias" and that she might be biased in how she interpreted the evidence and was not certain she could be fair. Significantly, no further inquiry was made after these later comments, and the for cause challenge was denied. Defendant bumped the potential juror, and, as required to raise this issue on appeal, exhausted his peremptories.
This case is important both because it establishes that a statement of an ability to set aside one's opinions does not protect a juror from subsequent statements to the contrary. It is also important because it establishes the legitimacy of revisiting a topic which the court and prosecutor might feel that they have successfully covered already. This case implies that it is not only potentially fruitful to elicit similar statements from a juror, but also that it is improper to foreclose questioning even where a juror already said she could be fair and/or follow the law. This is especially true where there is a strong indication of bias and a weak or pro forma recitation of an ability to set it aside.
James Eckert
In People v Johnson (2011 NY Slip Op 04764 [6/9/11])the Court of Appeals ruled that a juror who said she could set aside her personal views on the insanity defense and could apply the law as set forth by the court should have been removed for cause based on subsequent statements by the juror on the same subject matter. Specifically, in Johnson the Court held that a juror who had written a college research paper on insanity defenses (the only defense at trial), and who initially said she would set aside her personal views and apply the law as instructed, should have been excused for cause when she later said she had a "strong bias" and that she might be biased in how she interpreted the evidence and was not certain she could be fair. Significantly, no further inquiry was made after these later comments, and the for cause challenge was denied. Defendant bumped the potential juror, and, as required to raise this issue on appeal, exhausted his peremptories.
This case is important both because it establishes that a statement of an ability to set aside one's opinions does not protect a juror from subsequent statements to the contrary. It is also important because it establishes the legitimacy of revisiting a topic which the court and prosecutor might feel that they have successfully covered already. This case implies that it is not only potentially fruitful to elicit similar statements from a juror, but also that it is improper to foreclose questioning even where a juror already said she could be fair and/or follow the law. This is especially true where there is a strong indication of bias and a weak or pro forma recitation of an ability to set it aside.
Tuesday, June 7, 2011
Over the years many trial judges in New York have been imposed increasingly restrictive time limits on the questioning prospective jurors. And appellate courts have repeatedly rejected challenges to these arbitrarily time limits (see People v Jean, 75 NY2d 744 [trial court did not abuse its discretion in limiting counsel questioning to 15 minutes in first two rounds and 10 minutes in third round of voir dire]; People v Davis, 166 AD2d 453 [2d Dept], lv denied 76 NY2d 985 [1990] [15 minute restriction in first round followed by 10 minutes in second and third rounds not an abuse of discretion]; People v Erickson, 156 AD2d 760 [3d Dept 1989], lv denied 75 NY2d 966 [1990] [10 minute restriction in each round was not an abuse of discretion]).http://www.blogger.com/img/blank.gif
So it was not surprising that a judge presiding over a high profile robbery and weapons trial instructed the attorneys that they would be given only five minutes to question each panel of prospective jurors. Nor is it shocking that even when numerous venireman gave answers raising concerns as to their ability to be fair and impartial and counsel was questioning one of these prospective jurors, the court interrupted counsel to warn him that only one minute remained for questioning. Thus no questioning of the others was possible.
Perhaps what is surprising is that on appeal the Court of Appeals (People v Steward, 2011 NY Slip Op 04716 [6/7/11]) held that on these facts the trial court abused its discretion in continuing to enforce the five-minute limitation on counsel questioning after counsel's timely objection explaining why the time period was insufficient.
The Court explained, however, that not only is a five minute per pass rule not automatically invalid (how about two minutes per pass?) but even the error in this case
"standing alone, does not warrant reversal. A trial court's abuse of discretion in limiting the scope of counsel questioning will not warrant reversal unless defendant establishes that he suffered prejudice (see Jean, 75 NY2d at 745)."
In deciding that the requisite prejudice was established the Court wrote
So it was not surprising that a judge presiding over a high profile robbery and weapons trial instructed the attorneys that they would be given only five minutes to question each panel of prospective jurors. Nor is it shocking that even when numerous venireman gave answers raising concerns as to their ability to be fair and impartial and counsel was questioning one of these prospective jurors, the court interrupted counsel to warn him that only one minute remained for questioning. Thus no questioning of the others was possible.
Perhaps what is surprising is that on appeal the Court of Appeals (People v Steward, 2011 NY Slip Op 04716 [6/7/11]) held that on these facts the trial court abused its discretion in continuing to enforce the five-minute limitation on counsel questioning after counsel's timely objection explaining why the time period was insufficient.
The Court explained, however, that not only is a five minute per pass rule not automatically invalid (how about two minutes per pass?) but even the error in this case
"standing alone, does not warrant reversal. A trial court's abuse of discretion in limiting the scope of counsel questioning will not warrant reversal unless defendant establishes that he suffered prejudice (see Jean, 75 NY2d at 745)."
In deciding that the requisite prejudice was established the Court wrote
Defendant contends that he suffered prejudice because critical issues were revealed during jury selection involving a large number of prospective jurors and, as a result of the five-minute time restriction, his attorney was unable to query the various venire members that had responded to the court's inquiries in a problematic or provocative manner. And he suggests that some of these individuals did, in fact, serve on the jury that convicted him.
Given the lack of clarity in the record concerning whether certain prospective jurors were discharged or retained, we cannot say that defendant's claim of prejudice is refuted by the record. This is not a case where defendant has done nothing other than identify one or two venire persons who made questionable remarks but were not examined by counsel due to a time constraint. In the third round of voir dire alone, more than a dozen prospective jurors seem to have said something that invited additional inquiry in connection with their knowledge of the victim or status as a crime victim or witness — topics especially pertinent to this case. While none of these jurors made statements that, without further elaboration, would have justified their dismissal for cause, the purpose of follow-up questioning by the court or counsel is to explore hidden biases. During jury selection, attorneys pay close attention to juror responses in order to identify who should be challenged "for cause" and decide whether to exercise peremptory challenges. This process may be thwarted if an insufficient amount of time is permitted for questioning. And, here, due to peculiarities in the record, it is impossible to contradict the contention that the problematic prospective jurors that counsel was unable to examine ultimately sat on the jury that convicted him of multiple class B violent felonies.
Over the years many trial judges in New York have been imposed increasingly restrictive time limits on the questioning prospective jurors. And appellate courts have repeatedly rejected challenges to these arbitrarily time limits (see People v Jean, 75 NY2d 744 [trial court did not abuse its discretion in limiting counsel questioning to 15 minutes in first two rounds and 10 minutes in third round of voir dire]; People v Davis, 166 AD2d 453 [2d Dept], lv denied 76 NY2d 985 [1990] [15 minute restriction in first round followed by 10 minutes in second and third rounds not an abuse of discretion]; People v Erickson, 156 AD2d 760 [3d Dept 1989], lv denied 75 NY2d 966 [1990] [10 minute restriction in each round was not an abuse of discretion]).http://www.blogger.com/img/blank.gif
So it was not surprising that a judge presiding over a high profile robbery and weapons trial instructed the attorneys that they would be given only five minutes to question each panel of prospective jurors. Nor is it shocking that even when numerous venireman gave answers raising concerns as to their ability to be fair and impartial and counsel was questioning one of these prospective jurors, the court interrupted counsel to warn him that only one minute remained for questioning. Thus no questioning of the others was possible.
Perhaps what is surprising is that on appeal the Court of Appeals (People v Steward, 2011 NY Slip Op 04716 [6/7/11]) held that on these facts the trial court abused its discretion in continuing to enforce the five-minute limitation on counsel questioning after counsel's timely objection explaining why the time period was insufficient.
The Court explained, however, that not only is a five minute per pass rule not automatically invalid (how about two minutes per pass?) but even the error in this case
"standing alone, does not warrant reversal. A trial court's abuse of discretion in limiting the scope of counsel questioning will not warrant reversal unless defendant establishes that he suffered prejudice (see Jean, 75 NY2d at 745)."
In deciding that the requisite prejudice was established the Court wrote
So it was not surprising that a judge presiding over a high profile robbery and weapons trial instructed the attorneys that they would be given only five minutes to question each panel of prospective jurors. Nor is it shocking that even when numerous venireman gave answers raising concerns as to their ability to be fair and impartial and counsel was questioning one of these prospective jurors, the court interrupted counsel to warn him that only one minute remained for questioning. Thus no questioning of the others was possible.
Perhaps what is surprising is that on appeal the Court of Appeals (People v Steward, 2011 NY Slip Op 04716 [6/7/11]) held that on these facts the trial court abused its discretion in continuing to enforce the five-minute limitation on counsel questioning after counsel's timely objection explaining why the time period was insufficient.
The Court explained, however, that not only is a five minute per pass rule not automatically invalid (how about two minutes per pass?) but even the error in this case
"standing alone, does not warrant reversal. A trial court's abuse of discretion in limiting the scope of counsel questioning will not warrant reversal unless defendant establishes that he suffered prejudice (see Jean, 75 NY2d at 745)."
In deciding that the requisite prejudice was established the Court wrote
Defendant contends that he suffered prejudice because critical issues were revealed during jury selection involving a large number of prospective jurors and, as a result of the five-minute time restriction, his attorney was unable to query the various venire members that had responded to the court's inquiries in a problematic or provocative manner. And he suggests that some of these individuals did, in fact, serve on the jury that convicted him.
Given the lack of clarity in the record concerning whether certain prospective jurors were discharged or retained, we cannot say that defendant's claim of prejudice is refuted by the record. This is not a case where defendant has done nothing other than identify one or two venire persons who made questionable remarks but were not examined by counsel due to a time constraint. In the third round of voir dire alone, more than a dozen prospective jurors seem to have said something that invited additional inquiry in connection with their knowledge of the victim or status as a crime victim or witness — topics especially pertinent to this case. While none of these jurors made statements that, without further elaboration, would have justified their dismissal for cause, the purpose of follow-up questioning by the court or counsel is to explore hidden biases. During jury selection, attorneys pay close attention to juror responses in order to identify who should be challenged "for cause" and decide whether to exercise peremptory challenges. This process may be thwarted if an insufficient amount of time is permitted for questioning. And, here, due to peculiarities in the record, it is impossible to contradict the contention that the problematic prospective jurors that counsel was unable to examine ultimately sat on the jury that convicted him of multiple class B violent felonies.
Saturday, June 4, 2011
Broad Ruling on Right to Present Evidence of Bad Reputation in Community for Truth and Veracity
by
Jill Paperno
Second Assistant Monroe County Public Defender
In People v Fernandez (2011 NY Slip Op 04540 [6/2/11]) the Court of Appeals ruled that the trial court improperly deprived the defendant of his right to present testimony that the complainant had a bad reputation in the community for truth and veracity. Defendant was charged with courts of sexual conduct against a child, rape first and other charges. Defendant was charged in a 2008 indictment with engaging in these acts with the complainant in 2005. The complainant, defendant's niece, was 8 at the time; the defendant was 17. At trial she was 11. She did not report any complaint until 2007. Defense counsel sought to introduce testimony from his parents that at family get-togethers the complainant was discussed, and that she had a bad reputation for truth and veracity among family members and friends. The Court of Appeals reaffirmed that one's community can include a place of employment, and that family and friends can constitute a relevant community.
As for the fact that the witnesses were the defendant's parents, the Court stated, "(U)nder our precedents, the presentation of reputation evidence by a criminal defendant is a matter of right, not discretion, once a proper foundation has been laid."
And
"Since complainant's credibility was the central issue for the jury to resolve, County Court's failure to admit evidence related to complainant's bad reputation for truth and veracity cannot be considered harmless."
This looks like a great case to support introduction of testimony in the sex offense cases we have when clients' family members are often twlling defense counsel that the complainant is know to be a liar.
Jill Paperno
Second Assistant Monroe County Public Defender
In People v Fernandez (2011 NY Slip Op 04540 [6/2/11]) the Court of Appeals ruled that the trial court improperly deprived the defendant of his right to present testimony that the complainant had a bad reputation in the community for truth and veracity. Defendant was charged with courts of sexual conduct against a child, rape first and other charges. Defendant was charged in a 2008 indictment with engaging in these acts with the complainant in 2005. The complainant, defendant's niece, was 8 at the time; the defendant was 17. At trial she was 11. She did not report any complaint until 2007. Defense counsel sought to introduce testimony from his parents that at family get-togethers the complainant was discussed, and that she had a bad reputation for truth and veracity among family members and friends. The Court of Appeals reaffirmed that one's community can include a place of employment, and that family and friends can constitute a relevant community.
As for the fact that the witnesses were the defendant's parents, the Court stated, "(U)nder our precedents, the presentation of reputation evidence by a criminal defendant is a matter of right, not discretion, once a proper foundation has been laid."
And
"Since complainant's credibility was the central issue for the jury to resolve, County Court's failure to admit evidence related to complainant's bad reputation for truth and veracity cannot be considered harmless."
This looks like a great case to support introduction of testimony in the sex offense cases we have when clients' family members are often twlling defense counsel that the complainant is know to be a liar.
Broad Ruling on Right to Present Evidence of Bad Reputation in Community for Truth and Veracity
by
Jill Paperno
Second Assistant Monroe County Public Defender
In People v Fernandez (2011 NY Slip Op 04540 [6/2/11]) the Court of Appeals ruled that the trial court improperly deprived the defendant of his right to present testimony that the complainant had a bad reputation in the community for truth and veracity. Defendant was charged with courts of sexual conduct against a child, rape first and other charges. Defendant was charged in a 2008 indictment with engaging in these acts with the complainant in 2005. The complainant, defendant's niece, was 8 at the time; the defendant was 17. At trial she was 11. She did not report any complaint until 2007. Defense counsel sought to introduce testimony from his parents that at family get-togethers the complainant was discussed, and that she had a bad reputation for truth and veracity among family members and friends. The Court of Appeals reaffirmed that one's community can include a place of employment, and that family and friends can constitute a relevant community.
As for the fact that the witnesses were the defendant's parents, the Court stated, "(U)nder our precedents, the presentation of reputation evidence by a criminal defendant is a matter of right, not discretion, once a proper foundation has been laid."
And
"Since complainant's credibility was the central issue for the jury to resolve, County Court's failure to admit evidence related to complainant's bad reputation for truth and veracity cannot be considered harmless."
This looks like a great case to support introduction of testimony in the sex offense cases we have when clients' family members are often twlling defense counsel that the complainant is know to be a liar.
Jill Paperno
Second Assistant Monroe County Public Defender
In People v Fernandez (2011 NY Slip Op 04540 [6/2/11]) the Court of Appeals ruled that the trial court improperly deprived the defendant of his right to present testimony that the complainant had a bad reputation in the community for truth and veracity. Defendant was charged with courts of sexual conduct against a child, rape first and other charges. Defendant was charged in a 2008 indictment with engaging in these acts with the complainant in 2005. The complainant, defendant's niece, was 8 at the time; the defendant was 17. At trial she was 11. She did not report any complaint until 2007. Defense counsel sought to introduce testimony from his parents that at family get-togethers the complainant was discussed, and that she had a bad reputation for truth and veracity among family members and friends. The Court of Appeals reaffirmed that one's community can include a place of employment, and that family and friends can constitute a relevant community.
As for the fact that the witnesses were the defendant's parents, the Court stated, "(U)nder our precedents, the presentation of reputation evidence by a criminal defendant is a matter of right, not discretion, once a proper foundation has been laid."
And
"Since complainant's credibility was the central issue for the jury to resolve, County Court's failure to admit evidence related to complainant's bad reputation for truth and veracity cannot be considered harmless."
This looks like a great case to support introduction of testimony in the sex offense cases we have when clients' family members are often twlling defense counsel that the complainant is know to be a liar.
In People v Stith (69 NY2d 313 [1987]) the Court of Appeals held that the People must timely object to a defendant's failure to prove standing in order to preserve that issue for appellate review. Since the Court of Appeals is the highest court in the state and its holdings as to state law are binding on lower courts, one would have thought that the Appellate Divisions would refrain from upholding the denial of suppression motions on the ground that standing had not been established when no such claim had been raised by the People in response to the motion. One would be wrong.
In the years after the Court of Appeals decision in Stith three of the four Appellate Departments have issued rulings counter to the Stith holding, concluding that because it is the defendant's initial burden to establish standing, the People may raise defendant's lack of standing for the first time on appeal (see People v McCall, 51 AD3d 822, 822 [2d Dept 2008] lv denied 11 NY3d 856 [2008]; People v Hooper, 245 AD2d 1020, 1021 [4th Dept 1997]; People v Banks, 202 AD2d 902, 904 [3d Dept 1994] revd on other grounds 85 NY2d 558 [1995]. Only the Appellate Division, First Department (People v Graham, 211 AD2d 55, 57-58 [1st Dept 1995] lv denied 86 NY2d 795 [1995]) correctly applied the Court's holding that was adverse to the prosecution.
After years of its decision in Stith being ignored, the Court in People v Hunter (2011 NY Slip Op 04542 [6/2/11]) finally reminded courts that they are bound to follow its decision in Stith. And the Court explained why preservation requirements apply to the prosecutor:
In the years after the Court of Appeals decision in Stith three of the four Appellate Departments have issued rulings counter to the Stith holding, concluding that because it is the defendant's initial burden to establish standing, the People may raise defendant's lack of standing for the first time on appeal (see People v McCall, 51 AD3d 822, 822 [2d Dept 2008] lv denied 11 NY3d 856 [2008]; People v Hooper, 245 AD2d 1020, 1021 [4th Dept 1997]; People v Banks, 202 AD2d 902, 904 [3d Dept 1994] revd on other grounds 85 NY2d 558 [1995]. Only the Appellate Division, First Department (People v Graham, 211 AD2d 55, 57-58 [1st Dept 1995] lv denied 86 NY2d 795 [1995]) correctly applied the Court's holding that was adverse to the prosecution.
After years of its decision in Stith being ignored, the Court in People v Hunter (2011 NY Slip Op 04542 [6/2/11]) finally reminded courts that they are bound to follow its decision in Stith. And the Court explained why preservation requirements apply to the prosecutor:
Given that the primary reason for "demanding notice through objection or motion in a trial court, as with any specific objection, is to bring the claim to the trial court's attention" (People v Gray, 86 NY2d 10, 20-21 [1995]), the People are required to alert the suppression court if they believe that the defendant has failed to meet his burden to establish standing (see People v Carter, 86 NY2d 721, 722-723 [1995] [setting forth the premise that a defendant "must allege standing to challenge the search and, if the allegation is disputed, must establish standing" (emphasis supplied)]). The preservation requirement serves the added purpose of alerting the adverse party of the need to develop a record for appeal. Here, because the People failed to preserve the issue, the Appellate Division erred in entertaining it.
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