Jury Selection - Voir Dire – Excusals for Cause

United States v. Martinez-Salazar, 120 S.Ct. 774 (2000)

If the trial court fails to remove a juror for cause and the defendant then exercises a peremptory strike against the juror, there is no appellate review of the trial court’s error because any challenge to the impartiality of the jury must focus on the actual jurors who considered the case. The fact that the defendant was required to use a peremptory strike against a juror who should have been excused for cause does not diminish his rights under Rule 24.

United States v. Shepard, 739 F.3d 286 (6th Cir. 2014)

After being selected to serve on the jury in this child pornography case, one juror sent a note to the clerk saying that he couldn’t do it because she could not look at the pictures or videos. Further voir dire of the juror did not alter his views; he said that he could not look at the videos. The trial court erred in not excusing the juror and replacing him with an alternate.

United States v. Littlejohn, 489 F.3d 1335 (D.C. Cir. 2007)

The trial court posed compound questions to jurors such as this: are you, or any member of your family member employed (or ever been employed) by law enforcement, and, if so, would that make it hard for you to be impartial? If the answer to the second question was “no”, the juror was not expected to respond whether he or she was ever employed by law enforcement. This method of questioning jurors violated the defendant’s right to an impartial jury.

Virgil v. Dretke, 446 F.3d 598 (5th Cir. 2006)

Trial counsel’s failure to conduct further voir dire, or to move to remove certain prospective jurors for cause or peremptorily was ineffective assistance of counsel. The jurors expressed an inability to be fair. One juror said that because his mother had been mugged, he could not be fair. Another juror said that his relationship to law enforcement officers would preclude him from being an impartial juror. Failing to move to strike the jurors for cause – and failing to exercise a peremptory strike against these jurors – was not a matter of strategy. In addition to the decision’s analysis of the ineffective claim, the court extensively reviews the case law relating to the requirement of ensuring that jurors are impartial.

Franklin v. Anderson, 434 F.3d 412 (6th Cir. 2006)

Appellate counsel was ineffective in failing to raise the trial court’s error in failing to excuse a prospective juror for cause. The juror demonstrated during voir dire that the juror could not comprehend the legal standard she was supposed to apply.

White v. Mitchell, 431 F.3d 517 (6th Cir. 2005)

Reviewing the voir dire at length, the Sixth Circuit concluded that the state courts were incorrect in upholding a conviction where a juror clearly indicated that she had a fixed opinion about the defendant’s guilt and could not be fair.

Miller v. Webb, 385 F.3d 666 (6th Cir. 2004)

Trial counsel was ineffective in failing to request that a juror be excused for cause – and then failing to utilize a peremptory strike on the juror. During voir dire, the juror expressed her bias in favor of the government’s key witness in this murder case. She knew the witness from Bible study courses. The juror should have been removed for cause. See also Wolfev. Brigano, 232 F.3d 499 (6th Cir. 2000) (failure to excuse juror for cause was reversible error).

Oswald v. Bertrand, 374 F.3d 475 (7th Cir. 2004)

The state trial involved one of the most highly-publicized cases in the history of the County, the killing of a police officer and a hostage-taking. Towards the end of several days of voir dire a prospective juror stated that he had learned more about the case sitting in the jury room over the past three days than he had learned from the newspapers previously. Nevertheless, the trial court refused to re-question any jurors about their discussions in the jury room and the remaining jurors who had not yet been questioned confirmed that there were discussions occurring in the jury room. The Seventh Circuit granted a writ of habeas corpus. Inadequate measures were taken by the state judge to ensure that the jury was not biased, or that the jury pool was not poisoned. “Even a clearly guilty criminal is entitled to be tried before an impartial tribunal, something the jurors in this case may well have failed to understand.”

United States v. Nelson, 277 F.3d 164 (2d Cir. 2002) This case involved the notorious prosecution of two African Americans for the killing of an orthodox Jew in Brooklyn during a riot. The District Court judge stressed the need to have a jury that was diverse. To achieve this result, the judge denied a Batson challenge, made decisions regarding excusals for cause, and shifted the order of jurors. The Second Circuit holds that a jury that is selected intentionally to achieve racial and religious objectives is not a valid jury, particularly where an unqualified juror (i.e., a biased juror) is allowed to sit in order to achieve this goal.

United States v. Tucker, 137 F.3d 1016 (8th Cir. 1998)

The defendant was the Governor of Arkansas. One of the jurors failed to reveal during voir dire that the father of one of her children had sought clemency from the Governor. An evidentiary hearing was necessary to develop the facts of this claim. See generally McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984). An evidentiary hearing was also necessary to inquire into the allegations that the juror's husband talked to her during the course of trial.

Mach v. Stewart, 137 F.3d 630 (9th Cir. 1997)

The defendant was charged with child molestation. During voir dire, one member of the panel stated that she worked for the welfare department and she was aware of no false reports of abuse. Later, she revealed that she had considerable psychological training and she reiterated that in her experience, she was not aware that children ever fabricated allegations of abuse. The entire venire was tainted by these answers – surely at least one juror remembered these comments and believed them when deliberations began – and the Ninth Circuit granted a writ of habeas corpus.

United States v. Polichemi, 219 F.3d 698 (7th Cir. 1998)

The trial court erred in failing to strike for cause a fifteen-year employee of the U.S. Attorney’s office. However, because the defendants exercised a peremptory strike against this juror, there was no cause to set aside the conviction.

United States v. Mendoza, 157 F.3d 730 (9th Cir. 1998)

Two jurors raised their hands in response to the question, “Is there any of you that feel that our approach to the problem of marijuana is all wrong, that we should permit it like smoking nicotine, something like that?” The court summarily excused those jurors without any further inquiry. This was improper. The court should have made some effort to determine whether the jurors could, despite their beliefs, perform their duties as jurors. Harmless error.

United States v. Torres, 128 F.3d 38 (2d Cir. 1997)

A juror who admitted during voir dire that she structured financial transactions. This provided sufficient basis for the judge to excuse the juror for cause. The court distinguished cases in which bias is presumed – for example, cases in which a juror is related to a party, or admits to being partial for some other reason – from cases, such as this one, where a juror may be inferred to be biased. In the inferred bias cases, a judge has discretion whether to excuse a juror for cause.

United States v. Colombo, 869 F.2d 149 (2d Cir. 1989)

The defendant offered evidence that a juror intentionally concealed the fact that her brother-in-law was a government attorney. The juror apparently did so in the hope that this would help her get a seat on the jury. If this could be proved at an evidentiary hearing, it would be grounds for a new trial. The misrepresentation not only deprived the defendant of his right to exercise his peremptory strikes intelligently, it also revealed that the juror withheld information which indicated a partiality on her part.

United States v. Severino, 800 F.2d 42 (2d Cir. 1986)

The defendant was denied a fair trial by the Court’s denial of his request to exercise preemptory challenges outside of the presence of prospective jurors.

United States v. Calabrese, 942 F.2d 218 (3rd Cir. 1991)

Any jurors who indicated on a juror questionnaire that they “knew” the defendant were automatically excused. This was reversible error. 28 U.S.C. §1866(c)(2) and (4) directs that jurors may be excused for cause if they are unable to render impartial jury service or for other good cause. Simply knowing the defendant is not enough to excuse the juror. Some further inquiry is necessary to determine if the juror is capable of rendering impartial service.

United States v. Salamone, 800 F.2d 1216 (3rd Cir. 1986)

The District Court decided that no one who was affiliated with the National Rifle Association would be permitted to serve on the jury in this firearms case. The Court of Appeals reverses holding that this violates the defendant’s Sixth Amendment right to an impartial jury. The decision to exclude seven prospective jurors solely on the basis of their affiliation is not subject to harmless error analysis.

United States v. Ricks, 802 F.2d 731 (4th Cir. 1986)

It is improper in the jury selection procedure if a “struck jury” system is employed to use an overly large list of venire persons. If the list of venire persons contains more names than are needed, it is the duty of the District Court to state in unequivocal language the portion of the list which contains not in excess of the number of venire persons necessary to achieve the jury from which the actual jury selection will be made.

United States v. Rowe, 106 F.3d 1226 (5th Cir. 1997)

When a juror responded during voir dire that she was not sure she could be impartial, because her brother was an undercover officer, the trial judge chastised her and eventually directed the clerk to require the juror to return to court repeatedly in subsequent terms. This conduct on the part of the judge tainted the entire panel. The judge’s abuse of the juror would have led other jurors not to be honest in answering voir dire questions. Conviction reversed.

United States v. Beckner, 69 F.3d 1290 (5th Cir. 1995)

The defendant, a former U.S. Attorney and a prominent lawyer in Baton Rouge, was indicted for fraud, obstruction of justice and perjury. A first trial ended in a mistrial. The judge denied the motion of the government and the defendant for individual voir dire at the second trial. Instead, he questioned the jurors as a group about their knowledge of the case and the pretrial publicity. A defendant’s right to an impartial jury includes the right to an adequate voir dire to identify unqualified jurors. Morgan v. Illinois, 504 U.S. 719 (1992). But see Mu’Min v. Virginia, 500 U.S. 415 (1991). The standard for gauging the effectiveness of the voir dire procedure is as follows: first, the defendant must establish that pretrial publicity raised a significant possibility of prejudice; second, the issue is whether the court’s voir dire procedure failed to provide a reasonable assurance that prejudice would be discovered if present. The publicity in this case consisted of several dozen newspaper articles, as well as television reports of the first trial (including the prosecutor’s statement that the vote was 11 - 1 for conviction). The voir dire procedure was inadequate. In sum, the judge simply asked the jurors whether they felt that they could be impartial and relied on their opinion, rather than making an independent assessment of the jurors’ impartiality.

United States v. Scott, 854 F.2d 697 (5th Cir. 1988)

The foreman of the jury had a brother who was a deputy sheriff in the police office which performed some of the investigation in this case. The foreman failed to reveal that fact in voir dire despite being specifically asked by the judge whether any of the jurors had close relatives who were in law enforcement. The failure of the juror to respond affirmatively to this question required that the defendant be granted a new trial.

United States v. Amerson, 938 F.2d 116 (8th Cir. 1991)

The prosecution turned on the credibility of law enforcement officers. The judge committed reversible error by failing to excuse jurors who stated that they would believe the testimony of officers over other witnesses.

Dyer v. Calderon, 151 F.3d 970 (9th Cir. 1998)

Bias must be presumed when a juror, during voir dire lies about significant and material matters. Here, the juror, in a death penalty case, failed to reveal that her brother had been the victim of a homicide and that other family members (including herself) had been victimized by crimes and had perpetrated crimes.

Mach v. Stewart, 137 F.3d 630 (9th Cir. 1997)

During a voir dire in this sexual assault of a minor case, one of the prospective jurors, in the presence of the other jurors explained that she was a social worker and every case of alleged sexual abuse of a minor in which she was involved turned out to be true. Moreover, she was aware of no instance in which a child lied about being abused. This tainted the entire panel and the conviction was set aside.

United States v. Sinigaglio, 942 F.2d 581 (9th Cir. 1991)

26 U.S.C. §6103(h)(5) provided that the Treasury Department must (upon request) provide information to the defendant about any prospective juror who has been investigated or audited by the IRS if the defendant is charged with a tax offense. The audit history may not be arbitrarily limited by the government (as in this case to the past six years). Though the court does not hold that this is reversible error per se, it was reversible in this case where the voir dire did not eliminate the significant risk of prejudice.

United States v. Contreras-Castro, 825 F.2d 185 (9th Cir. 1987)

It was reversible error for the trial court to fail to ask venire persons if the testimony of law enforcement officers would unduly influence them in this narcotics prosecution. The government’s entire case was based on the uncorroborated testimony of two DEA agents.

United States v. Washington, 819 F.2d 221 (9th Cir. 1987)

It is an abuse of discretion for a trial court to fail to ask the jurors if they know any of the government witnesses. The proper remedy is reversal, not a remand to then question the witnesses. To remand the case after two years would not have satisfied the guaranty of an impartial jury.

United States v. Iribe-Perez, 129 F.3d 1167 (10th Cir. 1997)

When the jury first entered the courtroom, they were told by the trial judge that the defendant had decided to enter a guilty plea. Plea negotiations broke down, however, and the same jury pool was then used to strike a jury. The district court erred in selecting the jury from a panel comprised of individuals who were informed by the trial judge that the defendant was going to plead guilty to the very crime of which they ultimately convicted him.