Tuesday, January 3, 2012

Do you think it might be wrong to have on the jury someone who has heard of the defendant and 'knows' he's a bad guy? Turns out, you're probably right.

The rule on whether a person can be fair and impartial is different if the prejudice we are worried about is about the defendant rather than the crime. There are different forms of pre-judgement which are attractive to potential jurors. If someone thinks a defendant must testify on his own behalf, for example, they might be able to be fair and impartial if we tell them they are wrong. In any event, we're going to have to take their word for it if they say they can set that view aside. Likewise, if the juror has heard specific claims regarding the proof of the crime in question, well, the whole trial is about the proof being brought before the jury, and if a juror says they can ignore other rumored evidence, we're probably going to have to take their word for it, at least in terms of challenges for cause, if they say that can forget about what they heard. However, what if a potential juror has heard about the defendant's general character or reputation? This is not something which will be countered at trial. For the most part it probably won't come up.

In other words, a prospective juror who has heard negative things about the defendant which are outside of the normal proof which we can expect to see at trial presents a special problem. It's not a matter of informing the juror that they are wrong about the law, and asking whether they can accept the law as explained by the court. It's not a matter of the juror expecting certain proof at trial, which we can ask them to set aside. It's a question of negative facts about the defendant which in all likelihood will not be answered or even talked about at trial. These concerns require a more exacting expurgatory oath than is typically required. In a case won by Mary Davison at the Third Department, that court said:

"Moreover, when the prospective juror's bias is based not upon a preexisting opinion as to the defendant's guilt of the crimes charged, but upon the defendant's over-all reputation or prior bad acts, "the evidence at trial might not address the basis of the juror's impression and thus may not alter this impression" (People v Torpey, 63 NY2d 361, 368 [1984]; accord People v Johnson, 94 NY2d 600, 614 [2000]). Under such circumstances, "'the test for whether [the juror's] bias has been overcome by declarations is even stricter than where the juror has expressed an opinion as to the defendant's guilt . . . [T]he prospective juror should be dismissed if there appears to be any possibility that his [or her] impressions . . . might influence [the] verdict'" (People vJohnson, 94 NY2d at 614, quoting People v Torpey, 63 NY2d at 368)."

(People v Wlasiuk,#102275 decided December 29, 2011)

Now, such issues might seem fairly uncommon, but when a potential juror indicates that he has heard of the crime through media coverage, it is worth the time to inquire whether that potential juror has also heard of related background information on the defendant. It is not uncommon for news coverage to review previous crimes the defendant got away with while building up the presumption of guilt as to the current one. If the relevant press coverage of a crime includes, say A) the defendant confessed; B) the defendant's DNA was found at the scene; C) the defendant is known for beating up his ex-girlfriends, it might well be C which presents the most promising avenue for voir dire.

You don't have to be a famous mobster to qualify.

NOTE - The court also noted that a for-cause challenge is possible even after a juror has been sworn: "Once a juror has been sworn, peremptory challenges are no longer available; a challenge for cause is permissible, but only before the first witness is sworn at trial and only "upon a ground not known to the challenging party" before the juror was sworn (CPL 270.15 [4]; see People v Harris, 57 NY2d 335, 349-350 [1982], cert denied 460 US 1047 [1983])."

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