The “Stealth” Juror: A multifaceted problem at trial

By Devon Reiff, Esq.

Introduction:

While every trial lawyer wants to pick a jury that will ultimately return a verdict in favor of his or her client, the first goal is to pick a jury that can be fair and impartial. Unfortunately, this is much more difficult to achieve than most people realize for a number of reasons, which every trial lawyer must be aware of and guard against as they occur or by making a clear and concise record for appellate review later on.

Here, we will examine, in depth, the three most problematic reasons for “tainted” or biased juries. One is created by prospective jurors alone. Another is a combination of juror bias and inadequate oversight by the trial judge. The final one is due to a calculated strategy by one side to exclude jurors by using one or more peremptory challenges to exclude potential jurors based on race, ethnicity, or sex.

  • The deliberately secretive “stealth” juror:

Contrary to the popular belief that no one wants to serve on jury duty and will use any possible excuse, contrived medical condition or outright falsehood to avoid even one day in the jury pool*, there have always been a significant number of people who not only want to be selected but will even lie (or worse) to avoid being excused either “for cause” or by way of a peremptory challenge.

These “stealth” or “rogue” jurors conceal their hidden agendas to connive their way onto juries in civil and criminal cases and are always a threat to improperly influence the outcome of a trial. What makes them difficult to identify is that they generally give every appearance of being truthful and, yet, they may secretly: (1) admire or hate a particular plaintiff or defendant in a civil case; (2) favor (or oppose) a cause or position with which the plaintiff or defendant is identified in a civil case; (3) have strong leanings toward the prosecution or against the defendant in a criminal case; (4) be attracted to the defendant for some reason in a criminal case; (5) be seeking their “fifteen minutes of fame” by serving in a high-profile civil or criminal case; (6) have an economic goal they see as achievable once they have served as a juror (or even an alternate) in a significant case; (7) be seeking to vindicate a wrong done to them or to a member of their family in an unrelated case; (8) have a personality disorder or psychological problem that compels them to seek out a situation where they are the center of attention; or (9) suffer from a combination of these abnormal motivations.

Of course, truthful (potential) jurors readily disclose such possible bias through honest responses during voir dire and may wind up serving quite fairly in a different case.

Accordingly, a trial lawyer must always be attentive during voir dire and use all of his or her skill to identify unfit jurors, even if the possibility exists that they are actually in favor of their client or cause. Since stealth jurors weaken the judicial system and imperil the very verdicts they seek to influence, no one profits from their self-interest and selfish motives.

To comprehend the wide range of conceivable motives which drive the stealth juror, consider only a few of the following possibilities using 1 through 9 above as a guide.

  1. The plaintiff or defendant (in a civil case) may be a well-known celebrity or member of a prominent family. This attracts stealth jurors who either idolize that person or family, or hate who they are or what they stand for.
  2. The plaintiff or defendant (in a civil case) may support (or oppose) a particular cause, such as abortion rights, medical malpractice, gay rights, etc.
  3. The juror may side with the prosecution because of a family connection with law enforcement or due to some event where they, a loved one or family member was the victim of a crime, especially one that went unreported or where the perpetrator was not convicted. This is a more generalized preoccupation with an “anti-crime” attitude (see 7 below).
  4. Conversely, stealth jurors have been known to become enamored with even the most despicable criminals, such as serial killers, rapists and murderers. They might even have their own repressed urges to engage in the very behavior the defendant is charged with.
  5. Some stealth jurors simply want to bask (vicariously) in the media coverage surrounding a high-profile case. It does not matter who the parties are or what the case is about. The attraction is simply the chance to be seen on TV, interviewed after the trial or recognized around their neighborhood.
  6. A particularly offensive type of stealth juror is one motivated by financial gain alone. They see book deals, TV appearances and interviews as their only goal. They have even been referred to as “Celebrity Jurors” (see below).
  7. Vindicating a wrong done to the juror, a loved one or relative may motivate a stealth juror. This is different than simply being upset because of some prior situation where things did not turn out well in some previous situation. This involves a calculated vendetta against those accused of very specific crimes, such as rape, robbery, assault or murder. The juror is specifically seeking to punish a defendant for the particular crime he or she is charged with regardless of whether they are guilty.
  8. A psychological or personality disorder may be at work in some situations involving a stealth juror. This could be the result of any number of warped perceptions of reality or a misplaced sense of the juror’s importance in the world. People with inferiority complexes or those with the need to control others can be prime candidates for stealth jurors as are those who suffer from delusional beliefs of one type or another.
  9. As unlikely as it sounds, there is also a significant number of people who have a number of traits that come together as a “perfect storm” once they see an opportunity to serve as a juror on a specific case.
  10. The interesting thing is that a juror who would be particularly unsuitable in one case, might actually be quite competent to sit in another case. There is no rhyme or reason to the issue of stealth jurors. For this reason, trial attorneys must be vigilant at all times during voir dire and pay attention to such things as body language, eye movement, evasive or inconsistent responses, stock answers or lapses of memory as to things that people usually don’t forget, odd behavior, a fascination with any aspect of the case or the parties involved, or an unusually strong desire to serve on the jury.

    Even after a jury is selected and the trial is in progress (or after a verdict), any indication of the presence of a stealth juror should not be ignored. An attorney should always alert the judge to any potential problem with respect to a juror and not ignore it. This is truly a situation where, “If you see something, say something.” It’s always better to explore the situation fully with the trial judge than to risk irreparable harm.

    To be sure, stealth jurors are a problem in civil and criminal cases in every jurisdiction whether on the state or federal level, and so the following analysis and investigative measures are instructive.

    The irreparable harm done by a stealth juror to the sanctity of the jury process is best expressed by the words of the learned Justice Benjamin Cardozo in Clark v. United States, 289 US 1, 11, 53 S.Ct. 465 (1933):

    The petitioner is not condemned for concealment, though concealment has been proved. She is not condemned for false swearing, though false swearing has been proved. She is condemned for that she made use of false swearing and concealment as the means whereby to accomplish her acceptance as a juror, and under cover of that relation to obstruct the course of justice. There is a distinction not to be ignored between deceit by a witness and deceit by a talesman. A talesman when accepted as a juror becomes a part or member of the court. Ex parte Savin, 131 U.S. 267, 9 S.Ct. 699, 33 L.Ed. 150; United States v. Dachis (D.C.) 36 F.(2d) 601. The judge who examines on the voir dire is engaged in the process of organizing the court. If the answers to the questions are willfully evasive or knowingly untrue, the talesman, when accepted, is a juror in name only. His relation to the court and to the parties is tainted in its origin; it is a mere pretense and sham. What was sought to be attained was the choice of an impartial arbiter. What happened was the intrusion of a partisan defender. If a kinsman of one of the litigants had gone into the jury room disguised as the complaisant juror, the effect would have been no different. The doom of mere sterility was on the trial from the beginning. (Emphasis added.)

    The presence and effect of a stealth juror on the outcome of a high-profile trial was the plot of the John Grisham novel (1996) (and film [2003]), The Runaway Jury, which involved a fictional landmark case involving a cancer death allegedly caused by smoking. Thus, the concept of a stealth juror has been accepted in popular culture for more than a generation.
    In the Scott Peterson murder trial in 2002, his attorneys claimed that three stealth jurors lied to get onto the jury because they may have had aspirations of parlaying that experience into a book deal, interviews or some other form of celebrity that would bring them financial benefit.

    Likewise, in 2004, following trial, a juror in the Martha Stewart tax evasion case, who gave several media interviews, was accused by Stewart’s attorneys of misconduct by lying to get on the jury. In post-verdict statements to the media, the juror claimed Stewart’s conviction was, “a victory for the little guy who loses money in the markets because of these types of transactions.”

    In 2008, a judge dismissed a juror during deliberations in a California “gang” murder trial because she was found to have falsely denied her gang affiliation on a jury questionnaire. The District Attorney’s office issued a statement saying: “It is our subjective opinion that she was a stealth juror…[and] specifically wanted to be on this jury.”

    A six-month-long federal corruption trial in 2006, in which former Illinois Governor George Ryan was convicted of racketeering and fraud was threatened to force a retrial. Although the Seventh Circuit Court of Appeals affirmed the conviction in a 2 to 1 vote, the majority and dissenting opinions demonstrate the dilemma presented by the presence of dishonest jurors. “The fact that the trial may not have been picture-perfect is, in itself, nothing unusual,” Judge Diane Wood wrote. “We conclude that the district court handled most problems that arose in an acceptable manner, and that whatever error remained was harmless.” The majority opinion clearly strained to avoid a retrial and uphold the conviction. However, dissenting Judge Michael Kanne called the jury deliberations “dysfunctional.” He noted a majority of jurors had given untruthful answers under oath, yet only two were dismissed. He concluded, some jurors could have feared criminal prosecution for perjury when they rendered their verdicts, affecting their ability to be fair and impartial. (U.S. v. Warner, 498 F.3d 666 [7 Cir. 2007]).

    Earlier this year (April 2016), the trial judge in a high-profile police-shooting-death case refused to set aside a conviction when he found that a juror had not lied to get himself on the jury that convicted P.O. Peter Liang of manslaughter. The motion was based on the claim by Officer Liang’s attorneys that the juror had concealed anti-police sentiments by hiding his father’s criminal past in order to be placed on the jury. Although the judge agreed that the juror’s statements were confusing, he found that the juror had not acted improperly and that nothing he actually said had affected the guilty verdict. However, some seasoned trial lawyers disagreed with Justice Chun’s determination and believe when it comes to deceptive answers by a prospective juror, especially one who had responded differently (truthfully) in voir dire in another matter (where he was not selected), the judge should have erred on the side of caution and ordered a new trial. The determination will ultimately be reviewed on appeal.

    An interesting article on this topic can be found in the Judicial Notebook of the American Psychological Association (2014, Vol. 45, No. 8) : Lies during jury selection: What are the costs?

    In that article, the authors focus on the rules of evidence, which often do not permit the impeachment of a jury verdict based on statements made by a juror during deliberations. The following excerpt is thought-provoking (and involves a civil case) (page 24):

    On Aug. 4, 2006…Randy Shauers, a young man driving at high speed in a pickup truck, clipped a motorcycle driven by Gregory Warger, who suffered numerous injuries, including the amputation of the lower part of his left leg. Although Warger sued Shauers for negligence, the jury returned a verdict in favor of the defendant.

    After the trial, juror Stacey Titus approached Warger’s attorney, alleging that the jury forewoman, Regina Whipple, may have unduly biased the panel during deliberations. According to Titus, Whipple told other jurors that her daughter had been at fault in a similar collision that left a man dead, and that had her daughter been found negligent, it would have “ruined her life.” Titus claimed Whipple’s disclosure improperly influenced the rest of the jurors. Warger’s counsel filed an appeal with the district court of South Dakota, alleging that Whipple deliberately lied during jury selection (voir dire) about her ability to be impartial. The district court denied Warger’s petition, ruling that juror statements made during deliberations cannot be used as the basis for an appeal.

    At the time the article was written, the appeal was waiting to be heard by the United States Supreme Court, which had granted a writ of certiorari. However, after considering the appeal, the Supreme Court affirmed the Eighth Circuit, which had affirmed the trial court and found that: “Federal Rule of Evidence 606(b) provides that certain juror testimony regarding what occurred in a jury room is inadmissible ‘[d]uring an inquiry into the validity of a verdict.’ The question presented in this case is whether Rule 606(b) precludes a party seeking a new trial from using one juror’s affidavit of what another juror said in deliberations to demonstrate the other juror’s dishonesty during voir dire. We hold that it does.” (Warger v. Shauers, 135 S.Ct. 521, 190 L.Ed.2d 422, 83 USLW 4017 [2014])

    However, the article continued, assuming there might not be a reversal stating:

    The U.S. Supreme Court will try to resolve this inconsistency, but regardless of its decision, the mere possibility of juror bias should spur research into the weight that such bias (as well as juror dishonesty about it) may have on jury verdicts. Voir dire, after all, may be ill-equipped to fully identify instances of juror bias for several reasons.

    First, attorneys may fail to ask jurors questions that adequately uncover bias. Asking broad questions may gloss over specific juror biases. However, asking precise questions may highlight some instances of bias while sidestepping others. Second, research by Richard Nisbett and Timothy Wilson suggests that people aren’t always aware of their biases. Third, even if jurors are aware of their biases, they may still reason that they can remain fair and impartial. Finally, jurors may feel uncomfortable discussing their inability to be fair or impartial in the presence of other prospective jurors.

    Even when jurors are aware of their biases, it may be difficult to detect their prejudices if they lie about them during voir dire. Psychologists have long been interested in detecting lies (William Moulton Marston introduced his first polygraph in 1915), yet research continues to show that trained professionals in law enforcement are rarely better than novices at detecting deception. Given trained detectives’ difficulties in deception detection, attorneys would be hard pressed to discover juror dishonesty during voir dire. Thus, statements that jurors make to their colleagues in the deliberation room may be the best tool to discern dishonesty, and allowing such statements under Federal Rule of Evidence 606(b) may be the best way to address juror lies.

    While research suggests that biases can affect jurors’ legal decisions, of more concern is the impact that such biases may have on other jurors. While many studies suggest that jurors’ backgrounds may affect their own case perceptions and verdict decisions, discovering the extent to which a single juror’s bias may sway the rest of the panel should be a goal of psychological research.

     

    A realistic analysis of juror honesty seems to be that most jurors lie to some extent and that every jury panel has at least one juror who has lied. You simply can’t catch every lie and, even if you could, most of them would not matter anyway. Many lies are simply designed to shield the juror from embarrassment or undue inquiry into his or her personal life. Others are of the little white lie type similar to telling your aunt that her meatloaf is great when it’s completely inedible. However, it is the lie that hides critical information from the parties or the court that imperils verdicts and renders others wholly improper.

    Lies about biases, involvement in litigation, being a crime victim or other significant issues may be impossible to ferret out even with detailed questionnaires, extensive voir dire or questioning by the court itself. However, even such substantial lies may not affect the juror’s ability to be fair since there are certainly people who are able to judge a case on its own merits and not on the basis of irrelevant considerations.

    The outcomes of the inquiries into the conduct of alleged stealth jurors are not nearly as instructive as the conduct itself. The incredible range of deceptions and motivations is literally infinite and understanding what potential jurors are capable of is more important than the outcome in a particular case since the very same behavior plays out differently in different cases.

    An interesting case occurred in 2011, when Southern District Judge William H. Pauley III ordered the arrest of a former juror as part of an effort to find out whether all or some of those convicted in the high-profile Jenkens & Gilchrist tax shelter fraud case deserved a new trial. Catherine Conrad admitted she lied to “seem more juror-marketable,” the New York Daily News reported. At the time, Conrad, a suspended lawyer, insisted she fulfilled her duty as a juror by deliberating without bias. Conrad admitted lying during voir dire by omitting her law degree, her criminal record, which included assault and shoplifting charges, and the fact that her law license was suspended due to problems with alcoholism. Her alleged motive for lying was she missed the dynamics of the courtroom, The New York Law Journal reported.

    When asked by defense counsel, Chris Gair, “You didn’t do your civic duty, did you?” Conrad responded, “Rendering a jury verdict in an unbiased fashion, I certainly did.” Conrad was allowed to go home after she completed her testimony. However, Mr. Gair told the court that he believed Conrad perjured herself again on the stand during the hearing.

    In a civil case in 2011, Deonarine Persaud was arrested after he tried to bribe the plaintiff’s mother in the very medical malpractice case he was sitting as a juror in. The plaintiff, Bridget Wigand, had sued her physician and her mother received a phone call from an unknown man when the jury was about to deliberate, reported CBS-2. The caller said that he had some vital, damaging information regarding her daughter’s case. Wigand’s father met the man, who turned out to be Persaud, who told him that he would be willing to influence the other jurors to find for his daughter if he received “a fee.” The Wigands immediately informed their lawyer, who called the District Attorney and the trial judge. The judge declared a mistrial due to the juror’s misconduct.

    The Jodi Arias murder trial offers yet another intriguing stealth juror scenario. In that case, Arias was convicted in Arizona of the exceptionally brutal premeditated murder of her lover, Travis Alexander. Although the original jury seemed to have little problem convicting Arias of murder in 2013, they could not agree on the punishment issue leading to a retrial on the death penalty phase of the case.

    In selecting the jury in a capital murder case, where the death penalty is one of the possible sentences, jurors are always asked if they would be able to return such a verdict if the evidence warranted it. In the Arias case, the evidence was overwhelmingly in favor of a verdict imposing a sentence of death. However, after five days of deliberations, the jury was hopelessly deadlocked 11 to 1 in favor of the death penalty. The trial judge declared a mistrial and, pursuant of Arizona law, the death penalty was removed as a possibility and sentencing was required to be left up to the trial judge, who could choose between life in prison or a life term with the possibility of release after 25 years.

    However, once the trial was over, the following facts came to light through the 11 jurors who favored the death penalty. The holdout (a woman), who would not speak to the media, had refused to deliberate with the other jurors. She never considered imposing the death penalty and was so difficult to deal with that the other 11 jurors had asked the trial judge (during deliberations) if the holdout could be replaced with an alternate. That request was denied.

    The holdout angered some of the other jurors when she stated that the death penalty was a form of revenge. They also stated that the holdout had acknowledged seeing a cable TV movie about the case. Finally, and most importantly, the majority of the jurors strongly believed the holdout was openly biased and clearly opposed to imposing the death penalty, which she had agreed she could impose if the evidence warranted it. That single hidden philosophical or religious belief was, apparently, all that saved Jodi Arias from being put to death. (In New York, had such a belief become known to the prosecution or the trial court, a challenge “for cause” would have been valid under Criminal Procedure Law [“CPL”] §270.20[1][f]).

    An interesting footnote to the case is that the stealth juror may have vindicated her own anti-death-penalty belief but as for Jodi Arias, quite the opposite was true. She is probably looking at the life sentence as far worse than death since, in a jailhouse interview, on the day she was originally convicted of murder, she told the reporter from FOX News that she would rather be sentenced to death since, “I believe death is the ultimate freedom.”

    Other civil cases where new trials were ordered are also indicative of the wide range of problems created when potential jurors take it upon themselves to make unilateral determinations as to just how honest (or dishonest) they want to be.

    In Trafton v. New York State Electric and Gas Corp., 277 AD 1013, 100 NYS2d 375 (2d Dept. 1950), the Appellate Division, Second Department, ordered a new trial where one juror had failed to disclose he had been represented by plaintiff’s counsel at a sentencing hearing some seven years before the trial in question. Two other jurors had been excused based on similar prior representation. All of the prospective jurors had been asked if they had ever been so represented. In reversing the trial court’s denial of defendant’s motion to set aside the verdict and for a new trial, the Appellate Division stated: “There is no claim that juror number four was corrupt or that his earlier relationship with plaintiff’s trial counsel created a bias in favor of the plaintiff herein. In this court, plaintiff’s counsel argued that the relationship of attorney and client never existed between him and the juror, and that on the legal merits the order on appeal should be affirmed, but forthrightly stated that if in the opinion of the court there is the slightest suspicion as to the propriety of the jury service of juror number four, the verdict should be set aside. We are of opinion that defendant’s trial counsel was entitled to know the facts of the prior relationship before determining, without challenge, upon the acceptance of the talesman as a juror.” (Emphasis added.)

    However, the opposite result was reached by the Third Department in Holland v. Blake, 38 AD2d 344, 329 NYS2d 169 (3d Dept. 1972), and the verdict for plaintiff reinstated, where the juror apparently was unaware that his insurance carrier had retained defendant’s counsel to represent him in a law suit where he was a defendant. The Appellate Division was satisfied that there was no intentional deception by the juror and, “that there is nothing to indicate that this juror was anything but fair and impartial.”

    In Luster v. Schwartz, 35 AD2d 872, 315 NYS2d 338 (3d Dept. 1970), the trial judge’s decision to set aside a verdict in favor of plaintiff based on the sole argument that one juror failed to truthfully disclose his involvement in prior similar litigation during voir dire was affirmed in a 3 to 2 decision by the Third Department. The majority sided with the trial court in that the decision was a matter of discretion and was based on an inquiry by the judge as well as a review of the existing record. The dissenters would have reinstated the verdict because no intent to conceal or deceive was demonstrated, and because even the trial court found sufficient evidence existed to support the verdict.

    Thus, based on the extensive appellate authorities, legal articles and media coverage, it is clear that stealth jurors are likely to be found in any jury pool.  Whether they are: (1) embarrassed or wish to protect their privacy; (2) harboring a deep-rooted bias; (3) suffering from a personality or psychological disorder; (4) motivated by potential fame or financial gain; or (5) seeking to right some perceived personal or societal wrong, they will lie to conceal critical information that, in all likelihood, would make them unfit to serve on a particular case, or any case.

    • The openly biased juror and trial court error:

    While trial courts play a critical role in ensuring the selection of a fair and impartial jury and should be keenly aware that even the appearance of juror “taint” is often enough to mandate a new trial (especially in a criminal case), experience and the reality of countless appellate decisions tells us otherwise. Trial judges are human and, just like doctors, pilots and even umpires, mistakes are inevitable and may even be presumed in some situations when a trial court imposes arbitrary restrictions on the jury selection process. The problem here is that these errors make it highly probable that a prospective juror, who has openly provided enough information so as to make themselves unacceptable, will find their way onto a jury and influence the outcome at trial in the very same way as a stealth juror who has intentionally concealed his or her personal agenda.

    In Zgrodek v. McInerney, 61 AD3d 1106, 876 NYS2d 227 (3d Dept. 2009), the Appellate Division, Third Department, ordered a new trial on all issues because it determined, “notwithstanding that liability was not an issue, the case was not simple and straightforward.” Thus, it could not conclude that, “plaintiffs were not prejudiced by the extremely short time permitted for voir dire.” In Zgrodek, the trial court limited each round of voir dire to only 15 minutes over the objections of plaintiffs’ counsel. The Appellate Division determined that such a restriction did not allow for a proper and thorough voir dire.

    In Carlisle v. County of Nassau, 64 AD2d 15, 408 NYS2d 114 (2d Dept. 1978), the Appellate Division, Second Department, ordered a new trial based on the trial court’s refusal to permit the plaintiff to be present during jury selection simply because he was a paraplegic confined to a wheelchair.

    In Goerlich v. Ippolito, 62 AD2d 1030, 403 NYS2d 922 (2d Dept. 1978), the Appellate Division, Second Department, ordered a new trial on the issue of damages. One of the grounds for that determination was the trial court’s refusal, “to permit interrogation of the jury on that issue prior to the commencement of that phase of the trial.”

    However, a very serious problem occurs when the impartiality, honesty, motivation or hidden agenda of a juror is clearly in doubt but an attorney is forced to use a valuable (often final) peremptory challenge, especially in criminal cases, when either: (1) a challenge for cause would have excluded the problematic juror had he or she been truthful; or (2) the trial court improperly refuses to grant a valid challenge for cause thereby forcing the defense to use its final peremptory challenge.

    In these cases, the problematic juror (or jurors) often openly express their bias and even their doubts as to their ability to be fair. In those situations, one would expect the trial court to be especially willing to exclude the juror for cause for as many appellate courts have stated; the worst that can happen by granting a challenge for cause (even in a close situation) is that you exclude one satisfactory juror for another instead of possibly keeping a biased juror instead of replacing him or her with a fair one.

    Research indicates that this situation crops up far more often than one would imagine and results in numerous retrials in state and federal courts. In New York, a significant body of appellate law has sprung up as a consequence of this specific type of case. In addition, New York has enacted CPL §270.20(2) which states in relevant part: “All issues of fact or law arising on the challenge must be tried and determined by the court … An erroneous ruling by the court denying a challenge for cause by the defendant does not constitute reversible error unless the defendant has exhausted his peremptory challenges at the time or, if he has not, he peremptorily challenges such prospective juror and his peremptory challenges are exhausted before the selection of the jury is complete.”

    However, the problem does occur in civil cases as well as indicated by the decision in Haas v. Newberry, 181 AD 772, 169 NYS 175 (1st Dept. 1918).

    In that case, which involved an infant being run over by defendant’s automobile, one prospective juror expressed some reservation about being impartial because: “I drive through the city streets so considerably, and I come in contact with children playing around the streets.”

    Despite the fact that the trial judge questioned the juror and was satisfied by his responses that he could be fair and impartial, the First Department found that the juror, “never withdrew his admission that he entertained a prejudice of some kind against an action to recover damages for injuries caused by an automobile, because of his own experience as a driver of a car.” The court went on to state: “This left the matter of the juror’s attitude towards the litigant so uncertain and problematical that, even apart from the objection that his impartiality was dependent on his being accepted and sworn as a juror, he should not have been accepted and the challenge should have been sustained.”

    The court paid particular attention to the fact that when the challenge for cause was improperly denied, plaintiff’s counsel, “had exhausted all of his peremptory challenges.”

    In criminal cases, the appellate courts are particularly mindful of this problem and even the slightest appearance of bias, deception, concealment or questionable motivations will usually result in a new trial being ordered. However, judging by the number of reported cases, it seems likely that many cases involving stealth jurors are probably never discovered.

    What is most disturbing about these reversals is that the crimes were extremely serious and the evidence was often sufficient to sustain the convictions had the challenge for cause been granted. In fact, many of the opinions are clear as to the fact that had the juror (or jurors) been excluded by way of the challenge for cause, the convictions would have been affirmed. The waste of judicial time and resources is also something that cannot be minimized. Consider the following:

    A conviction of sexual abuse of a child (male dance teacher and male victim) set aside and new trial ordered where defendant had exhausted his peremptory challenges and trial court improperly denied challenge for cause of a prospective juror with a possible bias against homosexuality. (People v. McGuire, 101 AD3d 1386, 956 NYS2d 635 [3d Dept. 2012]).

    In a New York case, which has similarities to the Arias murder trial in Arizona, discussed above, the New York Court of Appeals was called upon to consider the potential presence of a stealth juror who opposed capital punishment in a death penalty case. In People v. Cahill, 2 NY3d 13, 777 NYS2d 332 (2003), although the Court affirmed the guilt phase of the trial the judges differed on the impact of the juror in question. Judge Smith stated in his concurring opinion:

    Then, prospective juror No. 855 indicated that she would not be able to “set aside [her] own views and conscientiously apply the law to the facts of this case in accordance with the Judge’s instructions” ”[i]f the law, as presented to [her] by the Judge in this case, is contrary to [her] present personal beliefs concerning the death penalty.” Explaining this answer, prospective juror No. 855 wrote that “I am morally responsible for my own actions and decisions.”

    As if these answers were not sufficient reason to disqualify prospective juror No. 855, another of her responses could only have caused the People and the trial court grave apprehension. Specifically, prospective juror No. 855 did not consider it “wrong for a juror to go through the whole trial and then during the penalty phase deliberations express for the first time that they would never or always vote for the death penalty regardless of the facts of the case.”

    Thus, the trial court was confronted with a potential “stealth” juror; i.e., a juror who believed that her personal opposition to capital punishment trumped any obligation to comply with her oath, and also allowed her to seek to be selected so that she could ensure a non-death sentence; in short, a juror willing to sabotage the trial. This had to make the Trial Judge seriously question the credibility of those questionnaire answers in which prospective juror No. 855 indicated that she would deliberate fairly. Similarly, even if this juror later said all the “right things” during voir dire, her questionnaire responses could only cause the trial court to view her with some skepticism if not outright suspicion.

     

    In People v. Weber, 103 AD3d 822, 959 NYS2d 736 (2d Dept. 2013), a new trial was ordered following a conviction of first degree assault. The Second Department found that the trial court committed reversible error in denying a challenge for cause based on the following finding:

    Here, during voir dire, in response to questions from defense counsel, the prospective juror at issue stated that she could be ‘fair,’ but also stated that if she were on trial she would not want herself on a jury because ‘I don’t think that I would be fair.’ Although the prospective juror stated that she would ‘follow the law,’ as instructed by the court, she did not unequivocally state that she would be impartial. Once the prospective juror expressed doubt regarding her ability to be impartial, it was incumbent upon the court to ascertain that she would render an impartial verdict based on the evidence (cits. omitted). This was not done. As a result, the Supreme Court erred in denying the defendant’s challenge for cause to the prospective juror. The failure to grant the defendant’s challenge for cause constituted reversible error because the defendant exhausted all of his peremptory challenges prior to the completion of jury selection (cits. omitted).”

    In a case where the defendant was convicted of sexual abuse in the first degree as a second felony offender, a new trial was ordered by the First Department in People v. Greene, 290 AD2d 349, 737 NYS2d 32 (1st Dept. 2002). The court found as follows:

    During voir dire in this domestic violence case, the juror in question informed the court that both she and her sister had been victims of domestic violence in 1986, and asserted that she was “not sure [she] would be able to be impartial.” *** [She also stated] she would “try to keep an open mind about it.” *** Further, after acknowledging the sympathy she would probably feel for the victim, when this juror was asked by defense counsel if she could keep her feelings out of the jury deliberations, her answer reflected some doubt: “I can see myself saying … I just went through the same situation and … there would be some confusion.” *** I think I can keep an open mind and not be judgmental right away but then again there’s always that thing behind that … I might incorporate.” The court insisted that she give “a yes or no answer” to the question whether or not she could “give this man a fair trial,” to which she replied, “I think I can.” *** [T]his juror consistently tempered her assurances with equivocation, even in the face of the court’s demand for “a yes or no answer.” Since the juror herself called into question her ability to render an impartial verdict, “nothing less than a personal, unequivocal assurance of impartiality” was required  (People v Arnold, 96 NY2d 358, 364), and it is insufficient to state that she thought she could be impartial or would try to do so (People v Hausman, 285 AD2d 352). The judgment therefore must be reversed (id.).

    In People v. Webster, 177 AD2d 1026, 578 NYS2d 43 (4th Dept. 1991), a conviction of murder, attempted murder and weapon possession was set aside and a new trial ordered based on a denial of a challenge for cause since, “the prospective juror’s strong attitude about gun control, and her feelings about the senseless, ‘unnecessary’ killing of a child’, raised questions about her ability to render an impartial verdict…[T]the juror never unequivocally stated, ‘with conviction’ (cit. omitted), that her bias would not influence her verdict or that she could render an impartial verdict on the evidence presented. At various points during the colloquy, the prospective juror merely responded that she ‘thought’ or ‘hoped’ that she could put her attitudes aside, and that she ‘would try’ to do so. Those answers fell short of express and unequivocal declarations. In the overall context of this juror’s voir dire, those ‘responses can be considered nothing other than equivocal and uncertain’ (cit. omitted).” Thus, the court found that: “Given the insufficiency of the juror’s declarations, the court erred in denying defendant’s challenge for cause. We therefore reverse the judgment and grant a new trial.”

    When jurors express a clear bias against a defendant who does not testify simply because they believe it is, “important to hear both sides,” the inference that a defendant has an, “obligation to present a defense” requires immediate intervention by the court and, “a prompt instruction on the relevant principles regarding the burden of proof and a defendant’s right not to testify or present evidence, along with the elicitation of unequivocal assurances that the panelists would follow that charge.” (People v. Jackson, 125 AD3d 485, 4 NYS3d 14 [1st Dept.2015]).

    In People v. Young, 119 AD3d 970, 988 NYS2d 720 (3d Dept. 2014), a conviction of burglary, robbery and grand larceny was set aside because a challenge for cause was denied as to a prospective juror who stated, “he was ‘very uncomfortable’ about the alleged use of a firearm during the commission of the charged crimes. When asked by defense counsel if his stated discomfort was something that would affect his ability to keep an open mind, juror No. 153 responded, ‘It might. I can’t say for sure what it is, but it’s a concern to me.’” The Third Department concluded that: “Having heard the statements by juror No. 153, County Court should have either granted the challenge for cause or conducted a further inquiry of that juror and obtained express, unequivocal assurances on the record of his impartiality (cits. omitted). As the record demonstrates, no such assurances were even sought—much less obtained—from this particular juror. *** Absent such assurances, and given the fact that defendant exhausted his peremptory challenges, the denial of defendant’s challenge for cause constitutes reversible error (cits. omitted). Accordingly, this matter is remitted for a new trial.”

    A gang assault conviction was set aside by the Second Department in People v. Garcia, 125 AD3d 882, 5 NYS3d 121 (2d Dept. 2015) based on a finding that: “during voir dire, two prospective jurors indicated that due to incidents in which they had been the victims of crimes, they were unsure whether they could be objective or impartial.” *** The trial court denied for-cause challenges to the prospective jurors and, since the defense had exhausted all of its peremptory challenges, the second prospective juror at issue was seated. *** Since the defense exhausted its allotment of peremptory challenges prior to the completion of jury selection, the judgment of conviction must be reversed and a new trial ordered…”

    Many new trials have resulted from situations where prospective jurors have family, social or professional ties to law enforcement, or they appear to have differing standards when it comes to weighing testimony offered by the police and by an accused defendant.

    A conviction of murder, attempted murder, criminal possession of a weapon and reckless endangerment was set aside and a new trial ordered where the Appellate Division found reversible error by the trial court in denying defendant’s challenge for cause of a prospective juror who had a personal and/or personal relationship with two investigators involved in the case despite assurances from the juror that this would not affect his judgment. The Appellate Division noted that: “Established precedent requires that we reach this conclusion. It bears mention that, in doing so, we remain rather painfully aware of the many difficulties that trial courts encounter in the process of selecting juries, especially where, as here, the trial is lengthy and involves many witnesses. Nevertheless, because of the fundamental importance of the right to trial by an impartial jury, ‘the trial court should lean toward disqualifying a prospective juror of dubious impartiality, rather than testing the bounds of discretion by permitting such a juror to serve’ (People v. Branch, 46 N.Y.2d at 651, 415 N.Y.S.2d 985, 389 N.E.2d 467). By erring on the side of disqualification, ‘[t]he worst the court will have done in most cases is to have replaced one impartial juror with another impartial juror’ (People v. Johnson, 94 N.Y.2d 600, 616, 709 N.Y.S.2d 134, 730 N.E.2d 932 [2000] [internal quotation marks and citation omitted]; see CPL 270.20[1][b]; [2]; People v. Russell, 116 A.D.3d 1090, 1093, 983 N.Y.S.2d 105 [2014] ). Defendant used a peremptory challenge to excuse the potential juror and later exhausted his peremptory challenges; thus, the denial of his challenge for cause was reversible error (see People v. Petke, 125 A.D.3d 1103, 1103–1105, 5 N.Y.S.3d 532 [2015]; People v. Young, 119 A.D.3d 970, 972, 988 N.Y.S.2d 720 [2014] ).” (People v. Hamilton, 116 AD3d 1090, 983 NYS2d 105 [3d Dept. 2015]).

    A conviction of assault in the first degree and gang assault was set aside and a new trial ordered where a challenge for cause was denied as to a prospective juror who, “indicated that because her son was a police officer, she was ‘not sure’ whether she could be fair and impartial. When asked whether she would ‘believe police just because they are police” and whether she was, “going to follow the instructions on the law,’ she replied, ‘I don’t know.’ When asked again if she could be fair and impartial, the juror stated, ‘I’ll try.’” The reversal was, thus, mandated by CPL §270.20(2). (People v. Reyes, 125 AD3d 892, 5 NYS3d 133 [2d Dept. 2015]).

    In People v. Greenfield, 112 AD3d 1226, 977 NYS2d 486 (3d Dept. 2013) an attempted murder conviction was set aside where a juror, who was a federal agent for the Bureau of Alcohol, Tobacco, Firearms and Explosives had, “over the years, worked ‘hand in hand’ on ‘quite a few’ cases with the Rensselaer County District Attorney’s office, although ‘not many’ in the past two or three years, and that he had a good professional relationship with that office. He then disclosed that he was, presently, actively working on a case in an investigative capacity with that District Attorney’s office. Defense counsel challenged this prospective juror for cause based upon his ongoing working law enforcement relationship with the District Attorney’s office, which County Court denied…[W]e find that the prospective juror’s current, ongoing investigative work on a pending matter in cooperation with and under the direction of the prosecuting agency required that juror’s dismissal for cause. *** The erroneous denial of that defense challenge for cause requires reversal because the defense peremptorily challenged the juror in issue and exhausted its peremptory challenges before the completion of jury selection…”

    In People v. Howard, 81 AD3d 404, 915 NYS2d 550 (1st Dept. 2011), a drug conviction was set aside simply because: “The trial court erroneously denied defendant’s for-cause challenge to prospective juror Hill, who stated that she would be inclined to give more weight to testimony from a police officer than to testimony from another witness. Although the court immediately gave appropriate instructions on the subject, Ms. Hill never provided an unequivocal assurance that she would follow those instructions rather than her ‘tendencies’ to give extra credence to the testimony of a police officer (cit. omitted). Given this conclusion, we need not determine whether the court properly denied defendant’s for-cause challenges to prospective jurors Cramer and Bobo.”

    A case where there were numerous unacceptable jurors (seven) and numerous errors by the trial court in denying challenges for cause was People v. Russell, 116 AD3d 1090, 983 NYS2d 105 (3d Dept. 2014). (This was truly a case of a stealth jury and not simply a stealth juror). In that case, the Third Department set aside a conviction of predatory sexual assault, predatory sexual assault against a child and incest in the first degree even where, “we do not find that the verdict was against the weight of the evidence.” Unfortunately, the Appellate Division found the seven improperly denied challenges for cause to be separate reversible errors: “However, we reverse and remit for a new trial due to County Court’s errors in repeatedly denying defendant’s challenges for cause to jurors who made statements that called their impartiality into question.”

    Here, one juror stated that his job experience as a correction officer “might” affect his ability to be impartial; when asked whether his employment would prevent him from applying “basic principles” granting certain rights to defendant, he responded, “It may.” A second juror said that her husband’s employment in law enforcement “could” cause her to give greater weight to a police officer’s testimony, and a third juror said that he could not “guarantee” that he would follow an instruction not to grant greater weight to such testimony. A fourth juror stated that her husband’s work as a sheriff’s deputy would “[p]ossibly” cause her to hesitate in providing defendant his constitutional protections; she further confirmed that she would be reluctant to apply the presumption of innocence. A fifth juror said that she believed that children who accused parents of sexual abuse could not lie, and a sixth juror agreed with other jurors that it was “highly unlikely” that a child would lie about this subject, and that it was probable that such a charge must be true because of its seriousness. Finally, a seventh juror expressed doubt when asked whether she would draw an adverse inference from a defendant’s choice not to testify, explaining that “it brings the question up why wouldn’t you[?]” Although she stated that she would follow the judge’s instructions in this regard, she added that she could not “control myself to take something that’s already in my mind away.” The prosecutor advised County Court that at least one of these jurors required rehabilitation because of such expressions of uncertainty, stating that “there should be inquiry from the court.” Nevertheless, the jurors were not questioned further, and none made “unequivocal assertion[s] of impartiality” (People v Chambers, 97 NY2d at 419). As defendant exhausted his peremptory challenges after using them on these jurors, each of the court’s errors in denying his challenges for cause requires the reversal of his convictions (see CPL 270.20 [2]; People v McGuire, 101 AD3d 1386, 1388-1389 [2012]; People v McLean, 24 AD3d at 1111; People v Heath, 24 AD3d 876, 877 [2005], lv denied 6 NY3d 813 [2006]). (Emphasis added.)

    What is clear from the Russell decision is that a trial court may fail to be the watchful gatekeeper it should be with respect to properly monitoring jury selection even in the most serious cases for some reason known only to itself. In the case of one questionable juror the error is serious enough, albeit an error of judgment. However, in the case of seven unacceptable jurors, the motivation of the trial court must be questioned.

    The very same result occurred when three prospective jurors, who evidenced a, “bias in favor of the police,” simply “nodded” when another juror nodded affirmatively as to being able to be impartial. The Fourth Department did not agree with the trial court’s conclusion that this “group” nodding was sufficient to serve as “an unequivocal declaration” of being able to set aside any bias and render an impartial verdict based on the evidence.” (People v. Strassner, 126 A.D.3d 1395, 5 N.Y.S.3d 662 [4th Dept. 2015]).

    In People v. Jones, 125 AD3d 403, 2 NYS3d 455 (1st Dept. 2015), a narcotics possession (second felony offender) conviction was set aside where: “During defense counsel’s questioning of the venire, defense counsel told the prospective jurors that he was going to argue that, ‘the officers are lying about the allegations.’”

    The prospective juror in question, who had revealed his close friendship with a police officer, was specifically asked: “Being that you’re close friends with an officer [,] would that make it more difficult for you…[to believe the police would lie]?” The prospective juror responded, “I may be more inclined to believe him just because of my relationship.” Defense counsel then said,“That’s solely because he wears a uniform; he’s an officer.” The record does not reflect that the prospective juror responded to that statement or made any further comments.

    Defendant’s counsel challenged the prospective juror for cause but, even though the trial court agreed with the characterization of what he had answered, “but observed that counsel had, ‘never followed up to see if that applied to that person or any other person when he clearly indicates he believes his friend because of his personal relationship, not simply because he’s a police officer.’ The court therefore denied the for-cause challenge. Counsel then made a peremptory challenge to the prospective juror, and later exhausted his peremptory challenges.”

    In holding, “the court improperly exercised its discretion in denying defendant’s challenge for cause to the prospective juror who noted that he did not know whether he would take a police officer’s word over that of a regular citizen,” the Appellate Division noted that: “Neither the court nor counsel ever asked the prospective juror to give an unequivocal assurance that he could set aside his bias and render an impartial verdict based on the evidence. Nor did questioning by defense counsel and the prosecutor elicit the requisite assurance.” Absent that unequivocal assurance as required by CPL §270.20(1)(b), “trial courts should err on the side of excusing the juror, since at worst the court will have replaced one impartial juror with another.”

    In this case, “the prospective juror gave a response that was uncertain at best.” It was therefore, “incumbent upon the trial court to take corrective action to elicit unequivocal assurance from the prospective juror that he would be able to reach a verdict based solely upon the court’s instructions on the law.” This omission alone, “constitutes reversible error.”

    The same result occurred (for the very same reason) in People v. Harris, 124 AD3d 796, 1 NYS3d 362 (2d Dept. 2015), where the prospective juror who was challenged for cause first, “expressed doubt as to whether she could be fair and impartial, and then, after stating that she thought she could be fair and impartial, stated that she could not believe that police officers would get on the witness stand and lie about a person selling drugs.”

    The trial court did not inquire further of the prospective juror and denied defendant’s challenge for cause. Thereafter, “defense counsel used a peremptory challenge to excuse the prospective juror and subsequently exhausted all peremptory challenges.”

    In holding, the trial court, “erred in denying the defendant’s challenge for cause without first eliciting some unequivocal assurance of the juror’s ability to be impartial” the Second Department noted that: “Since the defendant exercised a peremptory challenge to remove the prospective juror and exhausted his allotment of peremptory challenges prior to the completion of jury selection, the judgment of conviction must be reversed and a new trial ordered (see CPL 270.20 [2]; People v MacFarlane, 87 AD3d 700 [2011]).”

    • Improper use of peremptory challenges exclude potential jurors based on   their race, ethnicity, or sex

    There was a time, not that long ago, when a biased jury could actually be created by using the very peremptory challenges the law envisioned as a safeguard to prevent such abuses.

    The simple definition of a peremptory challenge is the right of either party in a jury trial to have a juror dismissed before trial without the need to state a reason. However, the tactical use of a peremptory challenge cannot be so easily defined. Sometimes a trial lawyer has a “gut” feeling about a prospective juror that makes his or her inclusion on the jury troublesome to the attorney. It could be the prospective juror’s demeanor, the way he or she answers questions during voir dire, or even the way the juror speaks to opposing counsel. It could be random comments made by the juror or even the person’s attitude or occupation. (Why would a plaintiff’s attorney who is representing an injured person who was run over by a tow truck want a tow truck driver on the jury?)

    However, up until 1986, an attorney could very easily use peremptory challenges to exclude potential jurors based on their race, ethnicity, or sex, since any thinly veiled “reason” would suffice to sustain a peremptory challenge. Such practices were especially prevalent in the South where black potential jurors were regularly excluded from serving in cases, “solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.” Thus, “all-white-juries” were all too common in cases involving black defendants.

    While the practice was condemned (United States v. Robinson, 421 F.Supp. 467, 473 (Conn.1976), mandamus granted sub nom. United States v. Newman, 549 F.2d 240 (CA2 1977)) as being forbidden by the Equal Protection Clause, no clear standard of review had been articulated.

    That all changed with the decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, 54 USLW 4425 (1986) when the Supreme Court enunciated precisely what that standard would be in the future when it held: “[A] a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group (cit. omitted), and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits, “those to discriminate who are of a mind to discriminate.” (cit. omitted). Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.”

    The Court then went on to hold that: “The prosecutor therefore must articulate a neutral explanation related to the particular case to be tried. The trial court then will have the duty to determine if the defendant has established purposeful discrimination.”

    Since Batson, many criminal convictions have been reversed on appeal where the defense made a prima facie case of purposeful discrimination in the use of one or more peremptory challenges and the prosecution was unable to demonstrate a sufficient “neutral explanation” for the challenge or challenges related to the particular case.

    Once Batson was firmly established as the standard to be applied in cases where a purely discriminatory (race-based) motive was found to have existed, it stood to reason that the very same logic should be applied to civil cases as well as to those where the discriminatory conduct was based solely on the gender of the prospective juror.

    Thus, in Edmonson v. Leesville Concrete Company, Inc., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660, 59 USLW 4574 (1991), the Supreme Court extended Batson to civil cases holding: “Recognizing the impropriety of racial bias in the courtroom, we hold the race-based exclusion violates the equal protection rights of the challenged jurors. This civil case originated in a United States District Court, and we apply the equal protection component of the Fifth Amendment’s Due Process Clause.”

    Finally, in J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), the Supreme Court took the final step stating: “We hold that gender, like race, is an unconstitutional proxy for juror competence and impartiality.” In doing so, the Court eloquently expressed the insidious nature of discriminatory practices in jury selection stating: “Discrimination in jury selection, whether based on race or on gender, causes harm to the litigants, the community, and the individual jurors who are wrongfully excluded from participation in the judicial process. The litigants are harmed by the risk that the prejudice that motivated the discriminatory selection of the jury will infect the entire proceedings. See Edmonson, 500 U.S., at 628, 111 S.Ct., at 2087(discrimination in the courtroom, “raises serious questions as to the fairness of the proceedings conducted there”). The community is harmed by the State’s participation in the perpetuation of invidious group stereotypes and the inevitable loss of confidence in our judicial system that state-sanctioned discrimination in the courtroom engenders.”

    Accordingly, under the watchful eyes of individual trial attorneys, and with the scrutiny of trial judges (and, if need be, appellate courts), the discriminatory use of peremptory challenges to literally fashion a biased jury in a civil or criminal case should no longer deprive any litigant of a fair and impartial trial.

    • Observations and Conclusions:

    There can be no denial that a substantial number of prospective jurors lie to one extent or another. The reasons may vary but the end result is the same; if a person lies to get onto a jury, they cannot possibly be trusted to be fair and just and follow the law as given to them by the trial court.

    It does not matter what information the “stealth” juror has intentionally concealed nor does it matter what their motivation is for doing so. What is clear is that the prospective juror’s personal agenda has been placed ahead of the rights of the parties to have their case tried before a fair and impartial jury, and that their own self-interest will be a factor in trying to influence the outcome of the trial. Neither of these aberrant motivations have any place in our system of jurisprudence.

    Unfortunately, the stealth juror does not come to court wearing a sign or other emblem identifying them as such. In fact, they are often remarkably adept at hiding their true agenda from the attorneys as well as the court by withholding information, lying on questionnaires, lying under oath and even lying to the court when it makes an effort to examine the juror to determine if they might be unsuitable to serve on the jury.

    Thus, it is the trial lawyer’s duty and obligation in any civil or criminal case to: (1) ask all appropriate questions (and follow-up questions) during voir dire; (2) use questionnaires whenever possible or appropriate; (3) never assume anything or hope for the best by allowing a questionable juror to be selected; (4) always challenge a questionable prospective juror for cause and, if that is denied, always use a peremptory challenge, if available; (5) always take exception to the denial of a challenge for cause and clearly state why the challenge was made and should have been granted; (6) always have important arguments regarding challenges stenographically recorded; (7) explore areas of possible bias or self-interest that are not commonly investigated; (8) pay attention to prospective jurors’ body language, eye movement and other physical signs associated with possible deceptive behavior; (9) continue monitoring the jury throughout the trial for any indication that something may have been missed during voir dire; and (10) always protect the record for a possible appeal, even if that requires a motion for a mistrial.**

    Also remember that a stealth juror (or jurors) may be hidden and difficult to ferret out or they may be willingly giving you everything you need to know to have them excused for cause but still make it onto the jury because the trial court has improperly denied your challenge or because the court has failed to fully examine the juror as to possible bias. If one of these openly problematic jurors makes it onto your jury, the result will, in all likelihood, be no better than if the juror lied his or her way onto the jury. In such cases, you must make a record for appeal and be certain to use up all peremptory challenges after the denial of the challenge for cause and before the end of jury selection, which is critical to permit that additional argument to be made on appeal. While the improper denial of a challenge for cause is usually sufficient to require a new trial, the accompanying exhaustion of peremptory challenges guarantees a new trial in a criminal case.

    Finally, never forget a trial is not a friendly game of golf and your adversary, even if cordial and approachable, has the potential to use one or more peremptory challenges in a purely discriminatory manner designed to exclude a potential juror in violation of the equal protection component of the Fifth Amendment’s Due Process Clause.


    • *Of course, whenever large numbers of people, often of similar socioeconomic backgrounds, are removed from the jury pool, what is left is not truly diverse and representative of the general population. In addition, the “unhappy” jurors, who were unable to escape serving, may become disruptive and difficult to keep engaged.
    • **It is noteworthy to mention at this point that trial attorneys are sometimes faced with a dilemma caused by the presence of a clear error that can have an adverse effect on their client’s case. In fact, the error is often one that could result in an adverse verdict. However, the case is going on very nicely and the jury seems to be sympathetic with your client’s position. There is also the fact that the trial has been going on for weeks and has cost thousands of dollars (or more) for experts and other trial expenses (not to mention hundreds of hours of preparation and time on trial). Thus, making a mistrial motion carries with it the possibility of it being granted and having to do everything all over again, including spending even more money (now a transcript of the first trial will have to be obtained), picking a new jury and risking losing a witness or encountering discrepancies in testimony at the new trial. However, there are numerous appellate decisions where otherwise reversible errors have been deemed waived by the appellant as a result of failing to move for a mistrial. The reason for this has been stated as follows: “Counsel may not be permitted to speculate upon whether a verdict will be favorable, before asserting a claim for a mistrial. Such a motion must be made in advance of the verdict.” Bonilla v. NYCHHC, 229 AD2d 371, 644 NYS2d 655 (2d Dept. 1996). Also see; Virgo v. Bonavilla, 49 NY2d 982, 429 NYS2d 165 (1980) and Kraemer v. Zimmerman, 249 AD2d 159, 249 672 NYS2d 58 (1st Dept. 1998).

     

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