Sunday, June 12, 2011

In Deciding For Cause Challenges Courts Must Consider Prospective Juror's Last Statement

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.

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