Challenges for cause in New York criminal cases.
The right to an impartial jury has long been recognized by both the United States Supreme Court and the New York Court of Appeals as one of the most fundamental rights guaranteed to the accused.(1) Without an impartial jury, the other constitutional and statutory rights granted to the accused are all but meaningless.(2) If the jurors have prejudged the case, it matters little that the defendant is represented by art attorney or that he has the right to present witnesses.(3) Consequently, jury selection is one of the most critical stages of a criminal proceeding.(4)
An indispensable component of the defendant's right to an impartial jury is the elimination of biased jurors,(5) and this has formed one of the most frequently litigated issues in New York criminal cases.(6) The New York Criminal Procedure Law provides three methods for challenging biased jurors: challenges to the entire panel, peremptory challenges, and challenges for cause.(7) The grounds for which an entire panel may be challenged are extremely narrow, relating only to the method of selecting the jury pool and requiring the defendant to prove "substantial prejudice."(8) In contrast, peremptory challenges may be used for nearly any reason or none,(9) but they have the disadvantage of being limited in number,(10) Thus, challenges for cause--which are unlimited and which may be brought for a much wider variety of reasons(11)--are an indispensable method of ensuring that prospective jurors who are biased against the a party are not permitted to sit.
Among the most common statutory provisions under which prospective jurors are challenged for cause is section 270.20(1)(b) of the Criminal Procedure Law,(12) which provides that a juror should be disqualified if "[hie has a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at the trial."(13) This provision allows prospective jurors to be challenged for a wide range of preconceived opinions and biases. (14) However, once a prospective juror expresses such a bias, it is frequently difficult, or even impossible, to determine whether he has truly prejudged the case or whether he can set his prejudice aside.(15) The discretion granted to trial judges by the Court of Appeals in adjudicating such challenges has thus led to numerous claims of error by defendants who allege that biased jurors were improperly empanelled.(16)
The New York Court of Appeals has correctly described this as a "bothersome area of law."(17) In five cases during the past thirty years, the high court has wrestled with the interpretation of Criminal Procedure Law section 270.20,(18) and despite its attempts to arrive at a definitive construction of the statute, lower courts continue to differ as to the proper standard for adjudicating challenges for cause.(19) Thus, in April 2000, the Court of Appeals, in People v. Johnson,(20) made its most recent attempt to lay the unresolved issues in criminal jury selection to rest. This article will examine, in light of the history of challenges for cause under New York law, whether it has succeeded.
Accordingly, Part II of this article will analyze the evolution of challenges to biased jurors in New York from the beginning of the nineteenth century to the enactment of the Criminal Procedure Law in 1972.(21) Part III will examine the interpretation of Criminal Procedure Law section 270.20(1)(b) by the Court of Appeals and lower New York courts between 1972 and 2000, and discuss the difficulties faced by those courts in interpreting the statute.(22) Part IV will discuss the Court of Appeals' holding in Johnson and determine whether any or all of these difficulties have been successfully resolved.(23)
II. JUROR DISQUALIFICATION PRIOR TO THE CRIMINAL PROCEDURE LAW
In 1878, the New York Court of Appeals noted that, at common law, any venireman who had formed or expressed an opinion of the defendant's guilt or had otherwise demonstrated that he was not indifferent between the parties was, "as a rule of law, disqualified."(24) Despite the confidence with which the high court made this pronouncement, however, the disqualification of prospective jurors for bias had actually been a settled principle of law for fewer than fifty years.(25)
To be sure, certain categories of persons had been prohibited from sitting on trial juries for centuries due to the implied bias that might arise from their relationship with the accused.(26) As early as the reign of Edward III of England in the fourteenth century, it was forbidden for members of the grand jury that indicted the defendant to sit on the petit jury that tried him.(27) At least one commentator noted that this prohibition was an "affirmance of the common law"(28) that trial jurors cannot be indifferent if they did their duty as grand jurors.(29) In succeeding centuries, other legal disqualifications, such as blood relationships between a prospective juror and a party, were also developed under a theory of implied bias.(30) However, the formation of an opinion as to the guilt or innocence of the accused was, as late as 1827, not firmly established as a disqualifying factor.(31)
The development of appellate precedent on this issue was complicated by the fact that the common law recognized two kinds of challenges to a prospective juror--challenges for principal cause and challenges to the favor.(32) "The former is for what, in judgment of law, will disqualify a juror," while "[t]he latter is any thing [sic] else which operates to render him partial."(33) As explained by the Court of Appeals in the 18130 decision Sanchez v. People,(34) a challenge for principal cause was adjudicated by the court, while a challenge to the favor was commonly made before triers of fact appointed by the trial judge.(35) The testimony given before the triers of a challenge to the favor was off the record, and their ruling was final and not subject to appeal.(36) This rule applied even if a challenge to the favor were tried by the court on consent of the parties, as was periodically done during the nineteenth century.(37)
Accordingly, it was necessary for New York courts during the early nineteenth century to settle two issues: first, whether a prospective juror's preconceived opinion was a ground for challenge at all, and second, whether an erroneous ruling regarding his bias was subject to appeal. As early as 1806, the New York Supreme Court, which was then the highest court of the state,(38) held in Blake v. Millspaugh(39) that a juror who had formed an opinion as to the controversy between the parties could be challenged, and that the denial of such a challenge could constitute error.(40) Seventeen years later, in Pringle v. Huse,(41) the court explicitly stated that a preconceived opinion provided grounds for a challenge for principal cause.(42) These rulings, however, were in civil cases,(43) and their applicability to criminal jury selection remained in doubt until the 1827 decision People v. Vermilyea.(44)
In Vermilyea, a prospective juror, one Norwood, declared during voir dire that he knew the facts of the case and that he had formed an opinion as to the defendants' guilt.(45) Specifically, Norwood had attended a prior trial of the same defendants,(46) and stated that "if the evidence on the second trial should be the same as on the first, he should pronounce them guilty."(47) The trial court denied the defendants' challenge for cause, relying upon the English decision of The King v. Edmonds.(48) This decision was in keeping with other English decisions of its time, holding that a juror who had formed an opinion that the accused was guilty should not be discharged unless he also showed ill will.(49)
The challenge in Vermilyea was appealed to the New York Supreme Court, where there was extensive discussion of English and American precedents during oral argument.(50) Under a New York constitutional provision that had considerably more relevance in 1827 than today, English decisions prior to 1775 had precedential effect in New York courts where they were consistent with the state constitution.(51) Thus, English decisions were cited as authoritative by both sides.(52) The result was a thorough examination, both by counsel and by the court, of the history of challenges for cause based on juror bias.
Citing Blake v. Millspaugh(53) and Pringle v. Huse,(54) as well as the Federal treason trial of Aaron Burr before Chief Justice John Marshall,(55) the defense contended that it was established New York law that jurors who had formed an opinion concerning the defendant's guilt could be challenged for principal cause.(56) As to English precedent, it was argued that the Edmonds decision was inapplicable since it was decided after 1775,(57) and was based on a miscitation of an English treatise that in fact described the issue as unsettled.(58) In addition, defense counsel noted that a prior English decision had held that "if any of the jury had said [that the defendant] was guilty, or they would find him guilty, or he should suffer, or be hanged, or the like, they were not fit or proper men to be of the jury."(59) Finally, defense counsel invoked Sir Edward Coke's famous pronouncement that a juror must be "indifferent as he stands unsworne."(60) In any event, the defendants' attorney argued that "whatever may be the ancient or modern English practice, this court must be bound by the decisions of their own, and of other high American tribunals."(61)
In opposition, the Attorney General, acting as prosecutor, admitted that "the case is one as to which an abundance of authority may be found on both sides."(62) Nevertheless, the prosecution argued that a challenge as fact-specific as one based upon a juror's preconceived bias was necessarily a challenge to the favor and was thus not subject to appeal.(63) In addition, it was argued, based on English precedent dating back to the seventeenth century,(64) that "the expression of an opinion [by a prospective juror] is not, per se, a cause of challenge."(65) Moreover, it was contended that if such challenges were allowed as error, the door would be opened to unlimited appellate litigation based on the qualification of jurors.(66) In support of this argument, the Attorney General delineated a number of possibilities that he regarded as disturbing:
If it be enough, and conclusive, to have formed an opinion simply, it must extend to impressions grounded on rumour; or on an actual view of the facts. One murders in the presence of another. Is the latter incompetent to try the murderer? It is inverting the spirit of the ancient common law, to say he is not. That sought for jurors who understood most of the subject. Yet he cannot but have made up an opinion. Must the opinion be formed on the fact, or law, or both? So many circumstances seem to enter into the question, that it is safer to leave it to triors. Impartiality does not mean a perfect freedom from opinion; but rather from an undue prepossession.(67)
Defense counsel then retorted that challenges for bias were necessary in order to protect the right of the accused to an impartial jury.(68) In his concluding address to the high court, he stated:
It is said by Ld. Coke, the juror must stand indifferent. What is indifferency? Lexicographers define it to be a neutrality of mind.... One wants no law to determine the meaning. When it is once conceded that we are entitled to an impartial jury, common sense determines this question. The authorities, however, are numerous and almost uniform. But if before 1775 their bearing was against us, it is not to be denied that in the progress of human society, and the march of the human mind, there has been an imperceptible, a gradual change in the law. It is the same in that as in the arts and sciences. It adapts itself to human circumstances in every age. We are not stationary; but going on in common with the rest of mankind. The authorities already cited, shew [sic] an increasing inclination in our courts to secure by every reasonable means, an impartial jury.(69)
These arguments were to frame litigation over challenges to prospective jurors during the next two centuries: the possibility of endless technical challenges against the need to secure the defendant's right to an impartial jury.(70) In response, the high court of New York--as it was to do in the majority of subsequent cases(71)--adopted the arguments of the defense.(72)
Chief Judge Woodworth, writing for the court, began his analysis by stating that "it would become a mockery, if persons who had prejudged the case were admitted as impartial triers."(73) To be qualified to serve, a juror must be indifferent--that is:
[his] mind is in a state of neutrality, as respects the person, and the matter to be tried; that there exists no bias, for or against either party, in the mind of the juror, calculated to operate upon him; that he comes to the trial with a mind uncommitted, and prepared to weigh the evidence in impartial scales."(74)
The court dismissed the English precedents to the contrary, holding that "no adjudged case can be found, in any of the courts in this country, where a juror has been admitted who had formed a decided opinion on the merits of the case."(75) Moreover, regardless of English authority, "the right of trial by jury has been cultivated with better skill, taken deeper root, and promises to shed a more benign and salutary influence in this land of constitutional liberty, than in the country of its origin."(76) Thus, since prospective juror Norwood had, "so far from standing indifferent ... already condemned the defendants,"(77) he was unfit to serve as a juror and could be challenged for principal cause.(78)
The case of People v. Mather,(79) decided three years later, further extended the circumstances under which a juror could be challenged for bias. In Mather, the prospective juror in question had formed an opinion of the case by reading newspaper accounts.(80) Before the appellate court, the Attorney General contended that a distinction should be made between those jurors whose opinions were obtained, as in Vermilyea, from hearing eyewitness testimony, and those whose opinions were founded upon mere rumor or third-party accounts.(81) The court rejected this argument, concluding that the law "attaches the disqualification to the fact of forming and expressing an opinion, and does not look beyond, to examine the occasion or weigh the evidence on which that opinion is founded."(82) Moreover, the fact "that the juror has made up his opinion, but has not heard the testimony, such an excuse only makes the case worse, for if the man have decided upon insufficient testimony, it manifests a bias that completely disqualifies him for the functions of a juryman."(83) Finally, the court determined that it was immaterial that the prospective juror had sworn to set his prejudice aside and decide the case on the evidence, noting that even "[i]f he is sincerely determined to discard his prejudices, he is not to be received, because the law does not hold him capable of doing so."(84) Therefore, consistent with Vermilyea, the court held that the lower court's decision to excuse the juror was proper.(85)
In Cancemi v. People,(86) New York's high court--which, under the constitution of 1846, was no longer the supreme court but the Court of Appeals(87)--was again confronted with a prospective juror who, at one point, testified that he had formed and expressed an opinion, but later testified that he had "no fixed opinion, none which could not be removed by the evidence."(88) In this case, the prosecution contended on appeal that it was not apparent from the record that the prospective juror's opinion concerned the defendant's guilt.(89) The court disagreed, noting that, while the opinion did not directly relate to the question of the defendant's guilt, "it is manifest that it did [touch on the guilt of the accused]."(90) The court held that such ambiguity on the part of a prospective juror should "be construed with liberality to the defendant, in the humane spirit which pervades our criminal laws and the rules of their administration."(91) Thus, since there was enough evidence to indicate that the juror was "preoccupied with an opinion upon the issues to be tried which it would require evidence to remove," the court found him unfit to serve.(92)
Accordingly, by the mid-nineteenth century, the law of New York had developed to a point where it constituted "the very reverse" of the common law of England.(93) By that time, it was settled law in New York that a prospective juror was disqualified if he expressed an opinion on the merits of the case, no matter how ambiguously.(94) Moreover, such a juror was disqualified even if he stated that his opinion could be removed by the evidence,(95) and even if he testified under oath that he could put his bias aside.(96)
This was changed by the 1881 enactment of the Code of Criminal Procedure.(97) In some respects, this law represented a liberalization of the rules concerning jury challenges; it combined challenges for principal cause and challenges to the favor in a single statute.(98) A related enactment also provided that both varieties of challenge were to be tried by the court and were subject to appeal.(99) In addition, "actual bias" requiring disqualification could be established, not only by an opinion as to the guilt or innocence of the accused, but by any "state of mind" which prevented the juror from "try[ing] the issue impartially."(100)
On the other hand, the statute specifically provided for an `expurgatory oath'(101) whereby a juror who expressed bias could still be qualified.(102) Specifically, "the previous expression or formation of an opinion or impression in reference to the guilt or innocence of the defendant" no longer constituted a ground for challenge if the juror "declare[d] on oath, that he believe[d] that such opinion or impression [would] not influence his verdict, and that he [could] render an impartial verdict according to the evidence."(103) The statute, however, did not leave the trial judge without discretion, providing that such a juror could be disqualified notwithstanding the expurgatory oath if the trial court were not satisfied that the "opinion or impression ... would [not] influence his verdict."(104)
In Stokes v. People,(105) the New York Court of Appeals held that this statutory scheme was constitutional, reasoning that the expurgatory oath sufficiently satisfied the defendant's right to an impartial jury.(106) Subsequent appellate courts, however, proved willing to look beyond the words of the oath and to hold that reversible error occurred when a prospective juror's testimony obviously lacked credibility. For instance, in Greenfield v. People,(107) two prospective jurors stated that they believed, from reading newspaper accounts, that the defendant was guilty.(108) The trial court administered the statutory oaths and seated them as jurors.(109) Subsequent to taking his oath, however, one of the prospective jurors continued to aver that he had formed an opinion as to the defendant's guilt.(110)
On appeal, the Court of Appeals noted first that the jury selection reform of 1872,(111) as embodied in the Code of Criminal Procedure,(112) gave the trial court the discretion to seat a juror notwithstanding his expressed opinion of guilt once he took the expurgatory oath.(113) However, the court also noted that the consolidation of challenges for principal cause and challenges to the favor gave it the power to review not only questions of law, but questions of fact regarding whether a prospective juror had adequately purged himself of his bias.(114) In light of this, the court found that the opinions that had been formed by the jurors through the reading of incriminatory testimony against the defendant made it impossible for those jurors to be indifferent towards the defendant, despite the administration of an expurgatory oath.(115)
Subsequent decisions also evinced a willingness to look beyond the fact that a prospective juror had uttered an expurgatory oath. On the one hand, the Court of Appeals held in People v. Martell(116) that "[i]t is not necessary that the juror.., should swear in the very words of the statute."(117) Thus, it sufficed that a juror stated that he "thought" he could judge the case on the evidence, rather than using the statutory word "belief," because the two words were "substantially equivalent, in common language."(118) Nevertheless, the court cautioned, in People v. Casey,(119) that it was "an absolute prerequisite" that the oath convey the substance of the statute.(120) Thus, a juror who testified that he "suppose[d]" that he could render an impartial verdict, as well as one who intimated that he would "try" but that he was "not sure," were held unfit to serve.(121) In arriving at this conclusion, the, Court of Appeals noted that, absent unequivocal statements from the jurors themselves, it would not imply or assume that they could decide the case impartially.(122) Later Court of Appeals cases also held that jurors who were administered only part of the statutory oath were not qualified, as the "statute ... should not be frittered away by a recognition on the part of the courts of loose or ill-considered substitutes as equivalents."(123)
Even when both parts of the statutory oath were taken in the language required by law, appellate courts were not foreclosed from reviewing the qualifications of prospective jurors. As early as 1880, the Court of Appeals specifically held that "the declaration of the juror is to be considered, but it is not controlling."(124) Thus, the court held, in People v. McQuade,(125) that an oath must be "unequivocal" in order to be effective, and must be supported by the prospective juror's entire voit dire testimony.(126) Specifically, the McQuade court determined that:
It does not satisfy the requirement of the statute if the declaration is qualified or conditional. It is not enough to be able to point to detached language which, alone considered, would seem to meet the statute requirement; if, on construing the whole declaration together, it is apparent that the juror is not able to express an absolute belief that his opinion will not influence his verdict.(127)
Similarly, a prospective juror who, after taking the oath, makes additional statements "materially impeaching [the] declarations" was not considered to have made the unqualified statement required by law.(128)
With the grant of appellate authority to review challenges to the favor,(129) the New York courts also began to adjudicate challenges for bias other than those biases founded upon a juror's preconceived opinion about the evidence in a particular case.(130) Although the language of the Code of Criminal Procedure allowed the use of the expurgatory oath only to purge biases as to guilt or innocence,(131) the New York Court of Appeals permitted other forms of bias to be purged by the oath. In People v. McGonegal,(132) for instance, where a physician was accused of manslaughter by way of abortion, the court held that a prospective juror could be seated where he had expressed his distaste for accused abortionists, in general, but stated unequivocally under oath that he could put that bias aside.(133)
The Court of Appeals, however, adopted a liberal standard for preservation and review of erroneous rulings on challenges for cause.(134) Specifically, the court determined that the erroneous denial of a challenge for cause constituted reversible error if the defendant exhausted his peremptory challenges; the defendant did not bear the burden of proving that he was actually denied a fair trial.(135) As early as 1884, in People v. Casey,(136) the court had held that a defendant who was forced to `waste' peremptory challenges on jurors who should have been disqualified for cause was sufficiently prejudiced by being deprived of the right to exercise those challenges as to subsequent jurors.(137) Eight years later, in McGonegal, the court further explained that:
where the challenge for bias is improperly overruled, the exclusion of the juror upon a peremptory challenge does not affect the tenability of the exception. The defendant cannot be compelled to use his peremptory challenges for such a purpose, but should be permitted to reserve them for the rejection of unsatisfactory jurors, against whom challenges for cause could not be successfully maintained.(138)
Thus, an erroneous ruling on a challenge for cause could only be considered harmless error if the defendant subsequently failed to exhaust his peremptory challenges. Once the defendant did so, no further harmless error analysis would be conducted.(139)
In the century following the enactment of the 1872 jury selection reforms,(140) an extensive body of law developed applying these authorities. In essence, a juror who expressed any bias that might affect his verdict, whether or not directly touching on guilt or innocence, was required to swear both parts of the expurgatory oath to avoid disqualification.(141) Even if he did so, both trial and appellate courts were entitled to look beyond the words of the oath and determine, from the entire voir dire, whether the prospective juror's testimony was sufficiently unequivocal and sincere.(142) Moreover, an erroneous denial of a challenge for cause resulted in automatic reversal if the defendant subsequently exhausted his peremptory challenges.(143)
III. CRIMINAL PROCEDURE LAW SECTION 270.20: FROM CULHANETO JOHNSON
The enactment of the Criminal Procedure Law(144) in 1970,(145) which repealed the Code of Criminal Procedure,(146) required New York courts to re-examine the precedent that had developed concerning challenges for cause in criminal cases.(147) Section 270.20 of this law, which governs cause challenges to individual jurors in criminal cases,(148) retained many of the provisions of the Code of Criminal Procedure defining actual bias.(149) Specifically, the new statute provided that a trial court was required to disqualify a prospective juror for cause if he "ha[d] a state of mind that [was] likely to preclude him from rendering an impartial verdict based upon the evidence adduced at trial."(150) In addition, the Criminal Procedure Law retained the language of its predecessor by providing that "[a]ll issues of fact or law arising on the challenge" must first be tried and determined by the trial court.(151)
The new legislation substarttially codified prior rulings of the Court of Appeals with respect to preservation of issues relating to challenges for cause.(152) Specifically, it provided that the erroneous denial of such challenges could not be appealed unless the defendant subsequently exhausted his peremptory challenges.(153) However, the new legislation also included an additional requirement that had never been explicitly spelled out by the Court of Appeals--namely, that the defendant also must have exercised or been prevented from exercising a peremptory challenge over the specific juror challenged for cause.(154) Thus, under the Criminal Procedure Law:
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.(155)
The legislature apparently reasoned that failure to exercise an available peremptory challenge after an unsuccessful challenge for cause reflected the opinion of defense counsel that the venireperson's presence on the jury would not be prejudicial.(156) However, the legislature did not require, as did certain other states, that the defendant affirmatively show prejudice in addition to exhausting his peremptory challenges.(157) Rather, it has been consistently presumed in New York that "the failure to exclude a disqualified juror after a timely and adequate objection by a defendant necessarily affects the verdict and cannot be considered harmless error."(158
The most striking variation between the Criminal Procedure Law and the statute it replaced,(159) however, was its elimination of the expurgatory oath.(160) The drafters of the statute specifically excluded the prior provision which allowed jurors who had formed an opinion as to the defendant's guilt or innocence to be seated by taking an oath in the form provided by the statute.(161) Thus, as the Court of Appeals noted in People v. Culhane,(162) the expurgatory oath was no longer a "talismanic ... [and] facile method for purging a prima facie showing of bias."(163)
To be sure, Culhane was not decided under the Criminal Procedure Law, as the defendants' trial was held prior to the effective date of the new statute.(164) The primary holding of the case was decided in line with the Court of Appeals' precedent under the former Code of Criminal Procedure.(165) Specifically, the court held that reversible error occurred[ when two prospective jurors recited only one element of the statutory oath and another repeated his bias in favor of law enforcement testimony even after taking the oath.(166)
However, the Culhane court took the opportunity to comment on the recent change in the law, deeming such comment appropriate on the ground that the issue .of challenges for cause had proved "bothersome" during the preceding century.(167) Specifically, the court noted that the exclusion of the oath from the Criminal Procedure Law clearly gave trial courts "greater flexibility and a greater responsibility in determining which veniremen should be excused for cause."(168)
In addition, the Culhane court was the first to state a principle that has been repeatedly reiterated by the Court of Appeals in subsequent cases. Specifically, the court stated that when any doubt existed as to the impartiality of a prospective juror, trial courts should err on the side. of dismissing him for cause.(169) As guidance to future trial courts adjudicating challenges for cause in criminal cases, the Court of Appeals stated:
Even if a juror is wrongly but not arbitrarily excused, the worst the court will have done in most cases is to have replaced one impartial juror with another impartial juror. On the other hand, to deny discharge for cause of an obviously biased juror as was done in this case, does more than prejudice the party against whom the bias runs. It casts a doubt on the legitimacy of the verdict even before the trial begins.(170)
This pronouncement was repeated nine years later in People v. Blyden,(171) the Court of Appeals' "first major application of CPL 270.20(1)(b)."(172) In Blyden, a case involving a black defendant, a prospective juror stated that he harbored certain prejudices against minorities, but that he "thought" he could put his bias aside and render an impartial verdict.(173) The defendant's challenge for cause to this juror was denied, and he was subsequently convicted after a jury trial.(174)
On appeal, the Court of Appeals reaffirmed its dicta in Culhane that the expurgatory oath was no longer a "pro forma" method by which a prospective juror might purge himself of bias and avoid dismissal for cause.(175) However, the court declined to return to the pre-1872 law under which any expression of bias was automatically disqualifying.(176) Rather, the court stated that the rationale behind the expurgatory oath had some "continuing validity," and that a prospective juror should be given an opportunity to disavow his bias.(177) Specifically, the Blyden court opined that a prospective juror who had expressed a preconception might be seated if, upon further inquiry, he unequivocally stated that "his prior state of mind concerning either the ease or either of the parties [would] not influence his verdict, and ... that he [would] render an impartial verdict based solely on the evidence."(178) The court tempered its holding with caution, stating:
[It] is essential that all elements of the required statements be voiced, and that they be., voiced with conviction. The mere words themselves ... have no talismanic power to convert a biased juror into an impartial one, although they do nonetheless provide a minimum level of protection. They must be taken in context. A hollow incantation, made without assurance or certitude, is not enough. Where there remains any doubt in the wake of such statements, when considered in the context of the juror's over-all responses, the prospective juror should be discharged for cause.(179
Thus, once a prospective juror expressed a bias that cast doubt on his ability to be impartial, he, could not be empanelled unless his entire testimony revealed unequivocally that he could render a fair and impartial verdict. It was "not enough to be able to point to detached language" in which such a juror promised to be impartial; rather, his voir dire statements as a whole must reflect both the intent and the ability to render a verdict based on the evidence alone.(180) In light of this, the Blyden court held that the prospective juror's statement that he "thought" he could be fair was not sufficiently unequivocal to overcome his bias against black defendants.(181)
Two years later, the Court of Appeals issued its next major decisions construing Criminal Procedure Law section 270.20(1)(b), People v. Williams(182) and People v. Torpey.(183) In Williams, the court adopted the dicta of Culhane that a trial court had not only greater responsibility, but greater discretion with respect to challenges for cause.(184) Specifically, the Court of Appeals held that a trial judge could empanel a prospective juror even if he had expressed a preconceived opinion or bias, as long as the court was satisfied through observation that the prospective juror could be impartial.(185) Based on this reasoning, the court held that it was not error to seat two prospective jurors who stated that "they did not associate with blacks," as neither stated that this might affect his ability to render a "fair and impartial verdict."(186)
The Williams court noted further that "most if not all jurors bring some predispositions, of varying intensity, when they enter the jury box," and it would therefore be unwieldy to require disqualification in every instance where a predisposition was expressed.(187) Rather, the court determined that dismissal was warranted "only when it is shown that there is a substantial risk that such predispositions will affect [his] ability ... to discharge his responsibilities."(188) Moreover, the determination of whether such a substantial risk exists is "committed largely to judgment of the Trial Judge with his peculiar opportunities to make a fair evaluation."(189)
Concomitantly, in its companion decision in Torpey, the Court of Appeals set strict limits on the discretion conferred by Williams.(190) In Torpey, during voir dire questioning by defense counsel, a prospective juror testified that she had a negative opinion of the defendant's character due to newspaper reports describing him as a "hit man" and a member of the Mafia.(191) Upon subsequent questioning by the trial judge, the juror stated--as in Blyden--that she "thought" she could judge the case impartially.(192) After the defendant's challenge for cause to this juror was denied, he challenged her peremptorily.(193) The defendant subsequently exhausted his peremptory challenges, thereby satisfying the preservation requirements of Criminal Procedure Law section 270.20, and was later convicted after trial.(194)
On appeal, the Court of Appeals acknowledged that a trial court's obligation to sustain a challenge for cause exists where the prospective juror has expressed "actual bias."(195) The court explained, however, that such bias does not exist only where a prospective juror has formed an opinion as to the defendant's guilt.(196) To the contrary, the court held that biases concerning the defendant's "character" or "over-all reputation" were even more prejudicial than opinions as to guilt or innocence, because such biases may not be overcome by the evidence presented at trial.(197) Specifically, the court noted that "[w]here ... the juror's impression of the defendant concerns his over-all reputation or is based upon alleged prior acts which have nothing to do with the charges against him, the evidence at trial might not address the basis of the juror's impression and thus may not alter this impression."(198) Therefore, where a prospective juror expresses bias for a reason unrelated to the evidence:
the test for whether such bias has been overcome by declarations is even stricter than where the juror has expressed an opinion as to the defendant's guilt. In a case such as the present one, the prospective juror should be dismissed if there appears to be any possibility that his impressions of the defendant might influence his verdict.(199)
Moreover, the Court of Appeals reiterated that once a prospective juror shows actual bias, she may not be empanelled unless her repudiation of that bias is unequivocal.(200) Specifically, "in determining whether a prospective juror has made unequivocal declarations, it is necessary to look at [the juror's] entire testimony; that the prospective juror once made the `proper' declarations does not necessarily mean that [the juror] has `purged' the bias."(201) Accordingly, the Torpey court held that denial of the defendant's challenge for cause was reversible error, and ordered a new trial.(202)
For the next sixteen years, appellate litigation of challenges for cause in criminal cases was defined by the interplay between Williams and Torpey--that is, the tension between the trial court's discretion to adjudicate such challenges and its responsibility to assure the defendant's constitutional right to an impartial jury.(203) Decisions in such cases typically turned on three key issues: whether the error was preserved,(204) whether the prospective juror's statements evinced sufficient bias to call into question her ability to render an impartial verdict,(205) and whether the juror's repudiation of bias was unequivocal.(206) With the exception of the requirements for preservation, which are specifically set forth in the statute,(207) these issues demonstrate the continuing difficulty of adjudicating challenges for cause under Criminal Procedure Law section 270.20(1)(b).
A. Preservation and Harmless Error
New York courts have enforced the statutory requirements for preservation strictly.(208) As the Second Department has stated, "[t]he rationale for [Criminal Procedure Law section 270.20] is that it would be intolerable to permit post-trial investigation of the technical qualifications of jurors which were ascertainable in advance of the trial."(209) In fact, only one reported New York decision has excused a defendant from the strict requirement that he exercise a peremptory challenge over the juror at issue and exhaust his challenges prior to the end of the voir dire. This occurred in People v. Foster,(210) a three-defendant trial in which the trial court, pursuant to statutory authority, allowed a single set of peremptory challenges to the defendants and required them to exercise those challenges jointly.(211) Pursuant to this arrangement, a majority of two defense attorneys would be required to exercise a peremptory challenge.(212) When it became known that a prospective juror had served on a Federal Grand Jury during the prior two years,(213) counsel for defendant Foster unsuccessfully challenged him for cause.(214) He then conferred with his co-counsel in an attempt to exercise a peremptory challenge, but was unable to obtain their agreement to do so.(215) Accordingly, the juror was empanelled.(216)
On appeal from Foster's subsequent conviction,(217) the prosecution contended that the denial of his challenge for cause was not preserved because he had not exercised a peremptory challenge as to the juror at issue.(218) Under the unusual circumstances of the case, the Second Department held that Criminal Procedure Law section 270.20(2) should not be strictly applied where the defendant had been prevented from exercising a peremptory challenge.(219) Thus, the court concluded that it could reach the merits of Foster's appeal because he had "brought the issue to the attention of the Trial Judge in a manner that pinpointed the legal question and satisfied the primary consideration of preservation by providing the court with an opportunity to avoid or cure an error of law."(220)
Although the requirements for preservation under Criminal Procedure Law section 270.20 have been applied strictly, nearly all New York courts have held that reversal is automatic if these requirements are satisfied and the trial court's ruling was erroneous.(221) Moreover, a defendant is not obligated to state on the record that his peremptory challenges have been exhausted.(222) As the Third Department stated in People v. Butts,(223) Criminal Procedure Law section 270.20(2) requires only that the defendant exhaust his peremptory challenges prior to final jury selection; it does not impose the additional burden of noting on the record that he has exhausted them.(224)
One Second Department decision, People v. Apolinar,(225) however, has held, under unusual circumstances, that an erroneous denial of a challenge for cause may be harmless, notwithstanding compliance with Criminal Procedure Law section 270.20.(226) In Apolinar, the defendant challenged a prospective juror for cause, but the trial court denied his challenge.(227) Subsequently, however, the trial court, possibly due to doubts about the qualification of the prospective juror, granted the defendant an additional peremptory challenge, but did not grant an additional challenge to the prosecutor.(228)
On appeal, the Second Department held that any error in the trial court's denial of the challenge for cause was, in fact, cured by the grant of extra peremptory challenges.(229) Since the prejudice resulting from the denial of a challenge for cause results from the fact that the defendant is forced to `waste' a peremptory challenge,(230) the court reasoned that the grant of an additional challenge ensured that the defendant received all the peremptory challenges to which he was entitled.(231) In addition, the court noted that the trial judge had granted the extra challenge specifically due to his concerns about the impartiality of the juror at issue.(232) However, the authors have found no other reported decision in existence, in which a trial court has cured an erroneous denial of a challenge for cause by this method. Thus, it is does not appear that granting additional peremptory challenges has become a common means of avoiding reversible error.
B. Opinions Constituting Actual Bids
"In virtually all of the cases decided by [New York courts] where a prospective juror has been challenged for cause based upon an actual bias, the challenge has been premised on the juror having expressed an opinion as to the guilt of the defendant for the charges being tried."(233) However, the grounds upon which a juror can be challenged for cause under Criminal Procedure Law section 270.20(1)(b) are not limited to preconceptions concerning guilt.(234) Rather, the language of the statute is broad enough to encompass a great variety of biases, prejudices and preconceptions that might affect a juror's ability to render an impartial verdict.(235)
The potential biases that may be expressed by a juror are limited only by the facts of each case and the ability of human beings to develop prejudice. However, New York case law reveals several general categories of bias that have been asserted as grounds for challenges for cause. Among the most common of these are cases where the juror expresses an antipathy to the defendant due to some factor other than her perceptions of the evidence. These factors include the defendant's race,(236) his reputed associations with organized crime,(237) the fact that he has been convicted of prior felonies,(238) and the nature of the offense of which he is accused.(239) Naturally, a bias either for or against the defendant is disqualifying; thus, prospective jurors who expressed strong emotional feelings against drugs(240) or that drugs should be legalized(241) were both deemed unfit to serve.
Another category of bias that can constitute grounds for a challenge for cause is sympathy for the victim. For instance, a prospective juror who was related to a law enforcement officer and stated that she "[didn't] know" whether she could be impartial was unfit to judge the accused killer of a police officer.(242) Likewise, a grandmother who had strong sympathies for young children should have been disqualified for cause in the trial of a defendant accused of raping a nine-year-old girl.(243)
Prospective jurors might also demonstrate actual bias by stating that they cannot impartially judge the credibility of certain categories of witnesses. This most commonly arises with respect to law enforcement, with jurors being disqualified both because they were skeptical of(244) or attached undue credibility to(245) police testimony. Similarly, courts have held that it was error to deny challenges for cause where jurors expressed skepticism as to the veracity of cooperating witnesses(246) or criminal defendants.(247)
Finally, moral scruples that preclude a juror from rendering an impartial verdict have been held to warrant dismissal for cause. The Third and Fourth Departments, for instance, have held that jurors who stated on voir dire that they were uncomfortable judging other people were properly disqualified for cause.(248) Likewise, a prospective juror who expressed strong feelings against the prison system and stated that she would have trouble finding the defendant guilty, on account of those feelings, was not qualified to sit on the jury.(249)
Not every opinion expressed by a prospective juror, however, rises to the level of actual bias. As the Third Department has stated, "the mere existence of any preconceived notion ... is insufficient to rebut the presumption of impartiality."(250) Rather, "[o]nly when it is shown that there is a substantial risk that the predisposition will affect the juror's ability to discharge her responsibilities is disqualification appropriate."(251)
While the boundaries of actual bias are not clearly delineated, post-Torpey decisions in New York set forth a number of guidelines for determining whether such a bias exists. First, the juror's opinion must be expressed as a prejudice. Thus, prospective jurors who stated that they "did not associate" with African-Americans did not demonstrate actual bias when they went on to state that this preference would not affect their ability to judge a black defendant.(252) In addition, a prospective juror who stated that he would rather not view and handle gruesome physical evidence was qualified to serve when he did not state that this aversion would make him more likely to convict the defendant.(253) Similarly, a juror who stated that she had been a robbery victim did not evince actual bias in the absence of a statement that her experience might affect her verdict.(254)
In addition, the bias must be specific. Thus, the Fourth Department has held that a juror's general negative sentiment about the criminal justice system, which was not based on any specific ground, did not constitute actual bias.(255) In addition, the Second Department has noted that jurors who expressed abstract "concerns" but could not identify any specific prejudice or preconception did not evince actual bias.(256) Similarly, a prospective juror who stated that, as a store owner, she had frequently experienced "a lot of problems:" with homeless people, was not found to be disqualified to judge a homeless defendant.(257)
The difficulty in determining the boundary of actual bias, however, is demonstrated by those cases in which prospective jurors expressed concerns about the criminal justice system, as further questioning frequently revealed more specific grounds warranting disqualification. In People v. Walton,(258) for instance, a prospective juror testified during voir dire that he had `"soured"' on the criminal justice system.(259) The reason he held a `"sour"' attitude was that he felt that police and prosecutors were too lenient toward criminals.(260) In light of this, the First Department found that his misgivings were specific rather than generalized, and held that he should have been disqualified for cause.(261) Likewise, in People v. Rice,(262) a juror who stated that if "people have the money, they can get out of anything" was found to have a sufficiently specific bias against criminal defendants and their attorneys to warrant dismissal for cause.(263)
Another area where appellate courts have divided are those cases in which a prospective juror's bias was due in part to ignorance. This issue frequently arises when the prospective juror's prejudice is related to an issue of law, such as the presumption of innocence or the defendant's right not to take the stand. In People v. Brzezicki,(264) for instance, the Fourth Department found that a juror was qualified to serve, even though he had expressed the belief that the defendant was required to prove his innocence, because he had done so before being instructed in the law.(265) In People v. Wales,(266) the Third Department also held that a juror's "abstract and understandable misgivings" concerning the insanity defense did not constitute actual bias where they "vanished" after he was instructed by the trial court.(267)
Likewise, in People v. Hernandez,(268) the Second Department held that a prospective juror did not evince actual bias when he stated, during questioning about the defendant's right to silence, that his verdict might be affected if he did not hear from both sides.(269) Over a vigorous dissent from Justice Cornelius O'Brien,(270) the court held that the voir dire questioning had been misleading because the prospective juror had not been informed that the defendant could present his side of the stow through cross-examination of prosecution witnesses.(271)
In People v. Jackson,(272) however, another panel of the same judicial department held that reversible error occurred when a prospective juror was seated after repeatedly stating that he needed to `"hear both sides of the story,"' without reference to whether he had been informed of the defendant's right to cross-examination.(273) Likewise, in People v. Bracetty,(274) the Second Department held that a juror evinced actual bias by stating that he expected the defendant `"to say something in his defense."'(275) A unanimous appellate court held that "the uncertain nature of the prospective juror's responses suggested that he would likely be unable to render an impartial verdict based upon the evidence," and thus should have been discharged for cause.(276) In addition, the First Department held in People v. Montada(277) that the very fact that a prospective juror misunderstood the law was sufficient to rise to the level of actual bias.(278)
A final complicating factor in determining whether a juror's prejudice constitutes actual bias is the necessity for her to state that her preconception might affect her verdict.(279) While this requirement is frequently satisfied by a direct statement, jurors often state their misgivings in a more ambiguous manner. In People v. Sumpter,(280) for instance, a prospective juror who was questioned about whether her relationship with police officers would affect her verdict responded by stating, `"I don't know that it would, but I could see how you might think it would."'(281) A sharply divided court decided, by a majority of three to two, that this statement was an expression of doubt sufficient to rise to the level of actual bias.(282) In addition, in People v. Budd,(283) the Second Department likewise concluded that actual bias existed even though the record was "unclear" as to whether a juror's wish to hear testimony from the defendant might affect her verdict.(284)
C. Unequivocal Repudiation of Bias
Courts frequently encounter similar difficulty in defining the bounds of a trial court's discretion to determine whether a prospective juror's repudiation of bias was unequivocal. Certain types of statements have overwhelmingly been held insufficient to constitute an unequivocal expurgation of bias. These include statements to the effect that a prospective juror will `"try"' to put her bias aside(285) or that he `"think[s]"' he can judge the case according to the evidence.(286) Likewise, a juror who testifies that she `"hope[s]"' to judge the case impartially(287) or that she `"[doesn't] know"' whether she can do so(288) is unqualified to serve.
Other courts, however, have held that arguably equivocal statements were sufficient to purge prospective jurors of bias where the trial judge, who was in a position to observe their demeanor and sincerity, was satisfied that they could be impartial.(289) Thus, the Second Department has held that a juror adequately purged himself of bias when he stated, after thorough questioning by the trial court, that he would `"try to the extent humanly possible"' to be impartial.(290) In addition, the Fourth Department has held that, when a prospective juror's initial bias was the result of ignorance about the presumption of innocence, he unequivocally purged himself of his prejudice by nodding his head in response to a subsequent question about that topic.(291)
It should be noted, however, that the First Department reached a contrary result in People v. Butler,(292) determining that an arguably unequivocal disavowal of bias was insufficient when it was elicited in response to a long series of leading questions by the trial court.(293) Likewise, in People v. Moorer,(294) the Second Department held that a juror did not purge herself of bias, even though she stated that she would "certainly" follow the instructions of the trial court and where she did not concomitantly state that she would judge the case according to the evidence alone.(295)
Another issue that proved difficult for the courts to resolve occurred where a prospective juror stated unequivocally that he could render an impartial verdict, but made additional statements qualifying that assertion. For example, in People v. Barber,(296) a Fourth Department majority held that reversible error occurred where a prospective juror stated that he would follow the instructions of the trial judge but also stated that his preconceptions were "strong" and would "`probably not be dispelled'" by the evidence in the case.(297) Again, the decision was accompanied by a vociferous dissent, with Justice Scudder stating that the juror had adequately purged himself of bias by declaring unequivocally that he would follow the instructions of the trial judge.(298)
IV. THE EFFECT OF JOHNSON
On April 13, 2000, the Court of Appeals made its fifth and most recent attempt to resolve the unsettled issues in application of Criminal Procedure Law section 270.15(1)(b). In People v. Johnson,(299) New York's highest court considered three cases(300) in which prospective jurors had failed to state unequivocally that their prejudices would not affect their verdict.(301) In the first two of these cases,(302) Prospective Juror 7, a physician with a friend in the Manhattan District Attorney's Office,(303) expressed the view that he would consider police testimony more credible than that of "an ordinary civilian."(304) When asked whether this bias would affect his consideration of the evidence, Prospective Juror 7 stated that he "`would guess so, but [was] not positive.'"(305) On appeal, the Appellate Division reversed these convictions on the ground that the juror had not unequivocally purged himself of his bias.(306)
In the third case,(307) involving the sale of heroin, two prospective jurors (Prospective Jurors 13 and 14) expressed doubt that they could view the evidence impartially due to their strong feelings about drugs.(308) Upon further inquiry, Prospective Juror 13 stated that she would "`try'" to be impartial, while the other stated that it "`might be difficult,'" but indicated she would try to be fair.(309) On appeal, the Appellate Division affirmed the defendant's conviction,(310) determining that the venire persons' "overall responses ... negated any substantial risk of bias."(311)
The Court of Appeals affirmed the First Department's decision in the first two cases and rejected the reasoning in the third case, holding that the denial of the defendants' challenges for cause in all three cases constituted reversible error.(312) Chief Judge Judith Kaye, writing for the majority, reiterated the high court's longstanding admonition that, by dismissing a potentially biased prospective juror for cause, "[t]he `worst the court will have done ... is to have replaced one impartial juror with another impartial juror.'"(313) In addition, the Chief Judge noted:
the guiding principles are perfectly plain: when potential jurors reveal knowledge or opinions reflecting a state of mind likely to preclude impartial service, they must in some form give unequivocal assurance that they can set aside any bias and render an impartial verdict based on the evidence. Obviously, when potential jurors themselves openly state that they doubt their own ability to be impartial in the case at hand, there is far more than a likelihood of bias, and an unequivocal assurance of impartiality must be elicited if they are to serve.(314)
Moreover, the court made clear that, in evaluating whether a prospective juror has purged herself of prejudice, a trial or appellate judge "must look not to characterizations or snippets of the voir dire but to the full record of what the challenged jurors--sworn to speak truthfully--actually said."(315) Thus, the court held that even a juror who stated that she "could `only try' to be fair" did not unequivocally purge herself of bias because her declaration was qualified by the statement that it "`might be difficult' for her to be open-minded."(316)
Furthermore, although the Court of Appeals noted that the trial court has discretion to inquire into the source of a prospective juror's bias and afford her the opportunity to purge herself of her predisposition,(317) this discretion ends when the juror fails to make the unequivocal declaration required by law.(318) The Johnson court further elaborated that a prospective juror's expression of actual bias triggers a duty of inquiry on the part of the trial court,(319) which must obtain an unequivocal repudiation of that bias or else disqualify the juror.(320)
Accordingly, the law in New York is now clear that any juror who states that a predisposition might affect her verdict has demonstrated actual bias, and that she must demonstrate her impartiality in unequivocal and unqualified terms in order to be sworn. If she does not make such a declaration, failure to dismiss her for cause constitutes reversible error. Moreover, when a prospective juror makes a statement that might constitute actual bias, the trial court must inquire further rather than summarily denying the defendant's challenge for cause.
The Court of Appeals' holding in Johnson is likely to resolve several of the issues that have divided New York's intermediate appellate courts.(321) By setting a bright-line standard under which prospective jurors must be taken at their word, the Johnson court held that a juror is biased if she says she is.(322) Thus, the trial court's duty of inquiry is triggered regardless of whether the juror's preconceptions might be due to ignorance or misleading voir dire questioning. In that event, the trial court must, at a minimum, clarify the prospective juror's concerns and obtain an unequivocal assurance that she would follow the law.(323) Moreover, by strongly urging disqualification in doubtful cases, the Court of Appeals indicated that prospective jurors should be excused for cause where the record is unclear as to whether their prejudices might affect their ability to render an impartial verdict.(324)
The holding in Johnson has been characterized as "[t]he 1999-2000 term decision that may have the most significant effect on the administration of criminal justice,"(325) and is indeed likely to change the way challenges for cause are adjudicated by New York trial courts. However, contrary to the characterization of the Johnson dissent,(326) the principles of the Johnson majority are far from being radical or excessively lenient toward defendants. Rather, the Court of Appeals' holding is consonant with more than a century of New York jurisprudence.(327) As New York's highest court stated 170 years ago, "[t]he law ... attaches the disqualification to the fact of forming and expressing an opinion, and does not look beyond, to examine the occasion or weigh the evidence on which that opinion is founded."(328) In this respect, Johnson does not represent a departure from New York precedent but rather a reaffirmation of the strong regard the state courts have traditionally held for the defendant's right to an impartial jury.
Likewise, Johnson resolves the controversy as to whether a single unequivocal statement, standing alone, is sufficient, in all cases, to overcome a prospective juror's bias.(329) The Court of Appeals made clear that it is not.(330) Rather, the juror's entire voir dire testimony must be considered, and a single unequivocal declaration will not qualify him to serve if his other statements render that declaration incredible.(331) This, too, is consistent with more than a century of New York jurisprudence, under which a venireperson who makes additional statements "materially impeaching [his] declarations" was not considered to have adequately purged himself of prejudice.(332) While not returning to the nineteenth-century practice of disqualifying any juror who expressed a preconception,(333) the court made clear that a prospective juror should only be seated if her expurgation of bias is truly unequivocal.
In Johnson, the Court of Appeals arrived at a holding which soundly balanced trial courts' discretion to conduct voir dire against criminal defendants' constitutional right to an impartial jury. With the Johnson decision, New York's highest court has arrived at an interpretation of Criminal Procedure Law section 270.20 which is in line with its prior jurisprudence under the common law and the Code of Criminal Procedure.(334) Simply put, a prospective juror should not be allowed to sit unless she is free of bias or states unequivocally and consistently that she is capable of putting her prejudice aside. Moreover, the court clearly reaffirmed the longstanding New York tradition of construing the grounds for challenge liberally in favor of the defendant.(335)
Reversible error under Johnson, however, need never occur. The most striking aspect of the large volume of litigation concerning the denial of challenges for cause is that none of it is necessary. Rather, as the Court of Appeals has noted on many separate occasions, trial courts should err on the side of dismissal when a prospective juror's qualifications are in doubt.(336) If a trial court heeds this admonition, "the worst [it] will have done ... is to have replaced one impartial juror with another impartial juror."(337) By adhering to this principle, New York trial courts can ensure, not only that the defendant's right to an impartial jury is protected, but that any resulting verdict will withstand appeal.
Abraham Abramovsky(*) Jonathan I. Edelstein(**)
(*) Professor of Law, Fordham University Law School; Director, International Criminal Law Center. J.S.D., Columbia University, 1976; LL.M., Columbia University, 1972; J.D., State University of New York at Buffalo, 1971.
(**) Attorney in private practice. J.D., Fordham University, 1997. This Article is dedicated again to my wife, Naomi Rabinowitz, with appreciation for her patience.
(1) See, e.g., Irvin v. Dowd, 366 U.S. 717, 722 (1961) (indicating that when the accused is denied a fair hearing by an impartial jury "even the minimal standards of due process" are violated); People v. McQuade, 18 N.E. 156, 162 (N.Y. 1888) (stating that "the fundamental rule [is] that an accused person is entitled to be tried by a fair and impartial jury").
(2) See Ham v. South Carolina, 409 U.S. 524, 532 (1973) (Marshall, J., concurring in part and dissenting in part) (declaring that the right to challenge a juror is `"one of the most important of the rights secured to the accused"' (quoting Justice Harlan, Sr. in Pointer v. United States, 151 U.S. 396, 408 (1894))).
England, from whom the Western World has largely taken its concepts of individual liberty and of the dignity and worth of every man, has bequeathed to us safeguards for their preservation, the most priceless of which is that of trial by [impartial] jury. The right has become as much American as it once the most English..
Dowd, 366 U.S. at 721.
(3) See In re Murchison, 349 U.S. 133, 136 (:1955) ("A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness."); Reynolds v. United States, 98 U.S. 145, 155 (1878) ("The theory of the law is that a juror who has formed an opinion cannot be impartial.").
(4) See Ham, 409 U.S. at 532 (Marshall, J., concurring in part and dissenting in part) (explaining that a variety of techniques ace available to ensure an impartial jury, the most important being the jury challenge).
(5) See Dennis v. United States, 339 U.S. 162, 171-72 (1950) ("Preservation of the opportunity to prove actual bias is a guarantee of a defendant's right to an impartial jury."); see also Ham, 409 U.S. at 532 (noting that, in order to gather enough information upon which to predicate a challenge for cause, the accused must be afforded an opportunity to ask relevant questions on voir dire).
(6) See, e.g., People v. Johnson, 730 N.E.2d 932 (N.Y. 2000) (setting out the most recent New York Court of Appeals decision regarding the challenge for cause of biased prospective jurors). Johnson is discussed in greater detail infra Part IV. See also infra Parts II & III (discussing the history of challenges for cause in New York State).
(7) See N.Y. CRIM. PROC. LAW [sections] 270.10 (McKinney 1993 & Supp. 2000) (governing challenges to the panel in felony jury trials); [sections] 270.20 (governing challenges for cause in felony jury trials); [sections] 270.25 (governing peremptory challenges in felony jury trials). Parallel provisions governing misdemeanor jury trials are contained in article 360 of the Criminal Procedure Law. See N.Y. CRIM. PROC. LAW [subsections] 360.15, 360.25, 360.30 (McKinney 1994).
(8) See N.Y. CRIM. PROC. LAW [sections] 270.10(1) (governing challenges to the panel in felony jury trials); [sections] 360.15 (governing challenges to the panel in misdemeanor jury trials).
(9) See N.Y. CRIM. PROC. LAW [sections] 270.25(1) (stating that "no reason need be assigned" to "an objection to a prospective juror" when a peremptory challenge is exercised). However, under Batson v. Kentucky, 476 U.S. 79 (1986), neither the prosecution nor the defense may exercise peremptory challenges based on a prospective juror's race, gender, or national origin. Aside from this stricture, there are no restrictions on either side's use of peremptory challenges. See id. at 82 (examining the alleged denial of a criminal defendant's equal protection rights via the State of Kentucky's use of peremptory challenges to exclude members of defendant's race). For a general discussion of Batson as applied in New York, see Abraham Abramovsky, Race, Religion and a Jury of One's Peers, N.Y.L.J., June 18, 1997, at 3.
(10) See N.Y. CRIM. PROC. LAW [sections] 270.25(2) (limiting the number of peremptory challenges available to each party in various felony prosecutions); [sections] 360.30(2) (limiting each party to three peremptory challenges in misdemeanor cases). The maximum number of peremptory challenges allowed to each side, in class A felony cases, is twenty. [sections] 270.25(2)(a).
(11) See N.Y. CRIM. PROC. LAW [sections] 270.20(1)(a)-(f) (providing six bases for the exercise of challenge for cause in felony trials); [sections] 360.25(a)-(e) (providing five grounds for challenges for cause in misdemeanor trials); see also People v. McQuade, 18 N.E. 156, 163 (N.Y. 1888) (noting that a challenge for cause is not "an idle ceremony which the judge may, in any case, overlook or disregard").
(12) N.Y. CRIM. PROC. LAW [sections] 270.20(1)(b) (McKinney 1993).
(13) Id. Other provisions of Criminal Procedure Law section 270.20(1), which are beyond the scope of this article, specify that prospective jurors must be dismissed for cause if they do not meet the qualifications set by the New York State Judiciary Law, [sections] 270.20(1)(a), if they served on the grand jury that indicted the defendant, [sections] 270.20(1)(e), if they are witnesses in the case, [sections] 270.20(1)(d), or if they bear such a relationship to certain parties as would compromise their objectivity, [sections] 270.20(1)(c). An additional provision, applying only to capital cases, mandates the dismissal for cause of prospective jurors who hold opinions for or against capital punishment that are likely to preclude them from rendering an impartial verdict. N.Y. CRIM. PROC. LAW [sections] 270.20(1)(f) (McKinney 1993 & Supp. 2000). Challenges for cause in misdemeanor jury trials are governed by section 360.25, and may be predicated on similar grounds. See [sections] 360.25(1)(a)-(e) (listing the grounds for challenges for cause in misdemeanor cases).
(14) See, e.g., People v. Blyden, 432 N.E.2d 758, 760-61 (N.Y. 1982) (finding reversible error where the trial court refused to discharge for cause a prospective juror with hostility towards minorities).
(15) See id. at 760 (cautioning that, although a juror can take an expurgatory oath to negate previously expressed biases, the oath must be evaluated in the context in which it was uttered in order to ensure that it is more than a "hollow incantation"). The development of the expurgatory oath and its treatment in the New York courts is discussed infra notes 101-28 and accompanying text.
(16) See, e.g., People v. Johnson, 730 N.E.2d 932, 940 (N.Y. 2000) (agreeing with the claim of three defendants that jurors were improperly empanelled "when they openly acknowledged doubt that they could be fair in the case"); Blyden, 432 N.E.2d at 761 (reversing the conviction of an African-American defendant where a juror was empanelled despite expressing hostility toward minority groups during voir dire); People v. Culhane, 305 N.E.2d 469, 473-77, 483 (N.Y. 1973) (reversing two convictions where four prospective jurors expressed preconceived opinions regarding the defendants' guilt during voir dire).
(17) Culhane, 305 N.E.2d at 478 n.2, 482 (noting that the problem with "jury selection is inextricably linked to the problem of venue" and suggesting that, in certain instances, transferring the case to another venue may be the most appropriate remedy).
(18) Johnson, 730 N.E.2d 932; People v. Torpey, 472 N.E.2d 298 (N.Y. 1984); People v. Williams, 472 N.E.2d 1026 (N.Y. 1984) (mem.); Blyden, 432 N.E.2d 758; Culhane, 305 N.E.2d 469.
(19) See cases cited infra Part III (discussing the various issues on which the lower courts are split concerning challenges for cause).
(20) 730 N.E.2d 932 (N.Y. 2000).
(21) See infra notes 24-143 and accompanying text.
(22) See infra notes 144-298 and accompanying text.
(23) See infra notes 299-333 and accompanying text.
(24) Greenfield v. People, 74 N.Y. 277, 280 (1878) (per curiam).
(25) See People v. Mather, 4 Wend. 230, 245-46 (N.Y. 1830) (holding that a juror, who had a preconceived opinion, based on reports he had read regarding the guilt of the accused, was properly excused because he was not impartial).
(26) See, e.g., id. at 239 (recognizing that jurors with a blood relationship to one of the parties should be disqualified from service).
(27) See Statute of the Realm, 25 Edw. 3, Stat. 5 c.3 (1352) (stating that "no Indictor shall be put in Inquests upon Deliverance of the Indictees of Felonies or Trespass, if he be challenged for that same cause by him which is so indicted").
(28) 2 WILLIAM HAWKINS, A TREATISE OF THE PLEAS OF THE CROWN, ch. 43, [sections] 27 (John Curwood ed., 1824). This ground for disqualification was, in fact, noted by English commentators even prior to Edward III. See, e.g., BRITTON 25 (Francis Morgan Nichols trans., 1901). Britton, writing in the time of Edward I, stated that a defendant might challenge a juror in the following form: "Sir, this man ought not to be upon the jury, because he indicted me, and I presume of him and all those who indicted me, that they still bear the same ill will against me as when they indicted me." For a historical discussion of Britton's treatise, see Jonathan Rose, The Legal Profession in Medieval England: A History of Regulation, 48 SYR. L. REV. 1, 10 n.29 (1998).
(29) See BRITTON, supra note 28, at 25 (stating that "where a man's life is at stake, this exception [of a juror] shall be allowed").
(30) See Mather, 4 Wend. at 239 (noting several instances where a juror would be disqualified, including where "a juror has been an arbitrator in a cause involving the matter to be tried, or the counsel of one of the parties, [or] if he is connected by blood with either of them").
(31) See People v. Vermilyea, 7 Cow. 108, 118 (N.Y. Sup. Ct. 1827) (noting that "[i]mpartiality does not mean a perfect freedom from opinion; but rather from an undue prepossession").
(32) See Greenfield v. People, 74 N.Y. 277, 280-81 (1878) (per curiam) (distinguishing between the two types of challenges); see also Vermilyea, 7 Cow. at 110-11 (discussing the case law in New York and other jurisdictions regarding challenges to the favor).
(33) Vermilyea, 7 Cow. at 110.
(34) 22 N.Y. 147 (1860).
(35) See id. at 150 (noting that, although challenges for favor were usually determined "by triers duly appointed by the court," in this particular case, the parties agreed the court itself should act as trier). According to the Sanchez court, the fact that the trial court itself acted as the trier in regard to the challenge for favor was of no import. See id. ("[I]t is clearly settled by authority, that the decision of the triers is final upon the question of fact whether the juror stands indifferent....").
(36) See id. at 151 (noting that the trial court's decision to admit or reject evidence bearing on the bias of a prospective juror may be addressed on review, but that the decision of the trier on the basis of the evidence presented is "final and cannot be reviewed"). In Sanchez, the evidence before the trier was admitted without exception, thus precluding review. Id.
(37) See id.; see also Greenfield, 74 N.Y. at 281 (noting that the court below acted as the trier with regard to both the challenge for cause and the challenges for favor).
(38) See Marc Bloustein, A Short History of the New York State Court System, Address Before the Seminar on the Unified Court System of the State of New York (Dec. 5, 1985), in THE UNIVERSITY OF THE STATE OF NEW YORK LEGISLATIVE AND GOVERNMENTAL SERVICES REPRINT NO. 66, May 1987, at 1-3 (discussing the impact of the 1846 Constitutional Convention upon the New York State court system). The 1846 Convention established the New York State Court of Appeals as the highest court of the state, eliminated the distinction between courts of equity and law, transformed the New York State Supreme Court into a "statewide court of complete and original jurisdiction," and established lesser trial courts of limited jurisdiction. Id. at 3.
(39) 1 Johns. 316 (N.Y. Sup. Ct. 1806) (per curiam).
(40) See Id. at 318 (noting that the fact that the defendant proceeded to a trial on the merits after his challenge was denied did not constitute a waiver of his objection to the juror).
(41) 1 Cow. 432 (N.Y. Sup. Ct. 1823).
(42) Id. at 435. "[I]t is ... highly improper for jurors, after being summoned, to express opinions upon causes which may come before them. The plaintiff was entitled to a jury free from partiality and bias." Id.
(43) See id. at 432 (noting that the plaintiff challenged the first juror drawn); Blake, 1 Johns. at 315 (discussing a juror challenge in a suit involving the taking of an excessive toll on aturnpike from Newburgh to Cochechton).
(44) 7 Cow. 108 (N.Y. Sup. Ct. 1827).
(45) See id. at 122 (noting that defense counsel argued that "unless the defendants produced some new and weighty evidence to change the preconceived opinion of the juror, their conviction was inevitable").
(46) See id. at 125 (noting that the juror "[h]aving heard the trial ... could scarcely avoid forming an opinion").
(47) Id. at 122.
(48) See id. at 111-12 (reprinting defense counsel's rebuttal to "the leading [English] case relied on against" the defendant, 2%eKing v. Edmonds, 106 Eng. Rep. 1009 (K.B. 1821)).
(49) See People v. Mather, 4 Wend. 229, 242 (N.Y. 1830) (noting the ancient rule of law was that "[i]f a juror says that he will pass for one party because he knows the verity of the matter, it was formerly no cause of challenge"); Vermilyea, 7 Cow. at 123-24 (noting that, under Edmonds and English common law, "the expression of an opinion by a juror, of the defendant's guilt, is not a cause of challenge, unless it be made in terms, or under circumstances denoting an ill intention towards the party challenging"); Edmonds, 106 Eng. Rep. at 1016-17 (reviewing English authority of the time and concluding that a juror's "personal ill-will" toward the defendant is required for a challenge for cause to be successful).
(50) See Vermilyea, 7 Cow. at 109.21. In common with many reports of cases in the early nineteenth century and before, the reported decision in Vermilyea contains detailed descriptions of the arguments of counsel as well as the ruling of the court.
(51) See N.Y. CONST. art. I, [sections] 14 (1938) (preserving the common law and acts of the legislature of the colony of New York, in existence as of April 19, 1775, as the continuing law of the state, subject to future alteration by the New York legislature and abrogation by the Constitution itself). This provision was originally enacted as article 35 of the New York Constitution of 1777, and has remained essentially unchanged. See N.Y. CONST. art. XXXV (1777). The relevant provision at the time of the Vermilyea decision was article 7, section 13 of the constitution of 1821. See N.Y. CONST. art. VII, [sections] 13 (1821); see also Horace Waters & Co. v. Gerard, 189 N.Y. 302, 308 (1907) ("Americans claim the common law of England as their natural heritage and shield.").
(52) See Vermilyea, 7 Cow. at 109-21 (reprinting the oral arguments before the court).
(53) 1 Johns. 316 (N.Y. Sup. Ct. 1806).
(54) 1 Cow. 432 (N.Y. Sup. Ct. 1823).
(55) United States v. Burr, 25 F. Cas. 1 (C.C.D. Ky. 1806) (No. 14,692). Defense counsel also cited the Massachusetts decision of Commonwealth v. Hussey, 13 Mass. (13 Tyng) 221 (1816), for the proposition that "a juror who had formed and expressed an opinion, on hearing one side of the case only, was pronounced incompetent." Vermilyea, 7 Cow. at 119. This is arguably a miscitation of Hussey, as the Massachusetts ease involved two petit jurors who had served on the grand jury that had indicted the defendants, rather than jurors who had explicitly expressed an opinion as to the defendant's guilt during voir dire. Hussey, 13 Mass. (13 Tyng.) at 221. However, the rationale for the disqualification of grand jurors--that, by virtue of having heard evidence as members of the grand jury and having voted to indict, they will be inclined to prejudge the case--is a variation on the argument urged by the defense in Vermilyea.
(56) See Vermilyea, 7 Cow. at 111.
An examination of the cases cited will show that the principle for which we contend is established in this country.... It is the uniform course ... to set aside grand jurors who found the indictment ... [n]o doubt it is a principle cause of challenge; for they cannot be indifferent if they did their duty as grand jurors.
(57) See id. (noting that defense counsel contended that the Edmonds holding, that a juror's opinion must be accompanied by ill will to merit disqualification, was of little precedential effect since the "decision ... was since our revolution").
(58) See id. at 112 ("In this [the prosecutor] mistakes the language of that writer. Hawkins, at the place in question, merely cites the authorities; and winds up, in section 33, by saying that these matters seem to be unsettled; evidently referring to the matter in question as among the unsettled doctrines."). Specifically, the defense argued that the ruling in Edmonds rested solely on an editorial comment included in Hawkins' treatise, and that the comment was not supported by the authorities cited by Hawkins. See id. (citing 2 WILLIAM HAWKINS, A TREATISE OF THE PLEAS OF THE CROWN, ch. 43, [sections] 27 (John Curwood ed., 1824)).
(59) Id. at 113 (citing the seventeenth century English decision in Cook's case). The judges in Cook's case were unanimous in stating that a juror who expressed an opinion as to the guilt of the defendant should be disqualified. See The Trial of Peter Cook, 8 Will. 3 (1696), reprinted in 13 T.B. HOWELL, A COMPLETE COLLECTION OF STATE TRIALS AND PROCEEDINGS FOR HIGH TREASON AND OTHER CRIMES AND MISDEMEANORS FROM THE EARLIEST PERIOD TO THE YEAR 1783, 338 (1816) (noting that Chief Justice Treby stated that "if any man in this pannel have any particular displeasure to the prisoner, or be unindifferent, or have declared himself so ... it is not fit, nor for the honour of the king's justice, that such a man should serve on the jury").
(60) See Vermilyea, 7 Cow. at 119 ("It is said by Ld. Coke, the juror must stand indifferent."). Coke's quote, noted in the text, is from SIR EDWARD COKE, THE FIRST PART OF THE INSTITUTES OF THE LAWS OF ENGLAND; OR, A COMMENTARY UPON LITTLETON 155b (The Lawbook Exchange, Ltd. 1999) (1823).
(61) Vermilyea, 7 Cow. at 111.
(62) Id. at 113.
(63) Id. at 114. The Attorney General argued:
the having expressed an opinion goes to the favor, and is not a principal cause; that it does not follow of necessity, and in judgment of law, because a juror has expressed an opinion, he must be excluded as incompetent. The question would seem, from the nature of the case, to be still open. Though he has expressed an opinion, he may still be indifferent. We insist that the question is one for triors. It is among the multifarious and undefined grounds upon which they may, or may not pronounce him indifferent. If this be so, it follows that the decision of the court below cannot be reviewed in this form.
Id at. at 116.
(64) See id. at 116-17 (discussing the English authorities relied upon by the Attorney General).
(65) Id. at 116.
(66) See id. at 117-18 (noting the difficulty involved in drawing the line between what constitutes a suitable juror and what does not).
(68) See id. at 119 (outlining defense counsel's argument that common law is applicable to criminal trials in the United States and that it requires an impartial jury).
(69) Id. at 119-20. For the defense attorney's reference to Lord Coke, see supra note 60 and accompanying text.
(70) See S. Mac Gutman, The Attorney-Conducted Voir Dire of Jurors: A Constitutional Right, 39 BROOK. L. REV. 290, 307 n.54 (noting that "[i]n most early reported state cases the English practice was rejected as unsound and contrary to the concept of fairness as perceived by the state courts").
(71) See infra notes 93-97 and accompanying text (characterizing New York law on the subject as opposite of English common law until the enactment of the Code of Criminal Procedure in 1881).
(72) See Vermilyea, 7 Cow. at 130 (granting the defendants a new trial because "a valid principal cause of challenge" was overruled by the trial court).
(73) Id. at 121.
(74) Id. at 122. The court noted that in several unreported cases, including a federal trial in Massachusetts before Justice Story of the United States Supreme Court, "every person who had formed or expressed an opinion of the guilt of the accused, was set aside." Id. at 123. In addition, the court cited a Connecticut treatise when stating that "if a juror has published his opinion upon the particular case, it is a principal cause of challenge." Id. (citing 2 ZEPHANIAH SWIFT, A DIGEST OF THE LAWS OF CONNECTICUT 232 (1822)). The court concluded from these, as well as from the South Carolina decision of State v. Baldwin, 6 S.C.L. (1 Tread.) 289 (1813), that the law regarding jurors who had preconceived opinions as to the guilt or innocence of the accused was uniform throughout the United States. See id. at 301 (stating that when a prospective juror has a "formed, settled opinion, creating so strong a bias, that he has not the exercise of an impartial judgment," that "juror ought to be rejected"). The Vermilyea court's conclusion, regarding the uniformity of American law, was arguably misplaced, as at least one federal court had applied a standard requiring malice or ill will in order to sustain a challenge for cause. See Case of Fries, 9 F. Cas. 826, 917 (C.C.D. Pa. 1799) (No. 5,126) (observing that a juror in the defendants' treason trial had publicly stated that, "[w]e will hang them all" and that "I myself shall be in danger, unles we do hang them all"). For a discussion of other nineteenth-century American cases relating to jurors' preconceptions, see Edward J. Finley II, Comment, Ignorance as Bliss? The Historical Development of an American Rule on Juror Knowledge, 1990 U. CHI. LEGAL F. 457, 463-,38 (1990).
(75) Vermilyea, 7 Cow. at 123. The court concluded, based on its assessment of English decisions and treatises, that "the ingredient of ill will, superadded to an opinion formed, never was engrafted upon the common law in England." Id. at 128.
(76) Id. at 130.
(77) Id. at 122.
(78) See id. at 128 ("[T]he law does presume that the expression of an opinion on the merits of a case indicates bias, or that the mind of the juror is decidedly unfavorable to the defendants. It is then a principle cause of challenge.").
(79) 4 Wend. 229 (N.Y. 1830).
(80) See id. at 233-34 (noting that the juror testified that he had not fixed an opinion regarding the guilt of the defendant beyond the impressions left by reading the reports).
(81) Id. at 241.
(82) Id. at 242-43,
(83) Id. at 242.
(84) Id. at 245.
(86) 16 N.Y. 501 (1858).
(87) See FRANCIS BERGAN, THE HISTORY OF THE NEW YORK COURT OF APPEALS, 1847-1932 15-24 (1985) (noting that this was just one of many "radical change[s]" to New York's judicial system resulting from the Constitutional Convention of 1846).
(88) Cancemi, 16 N.Y. at 503.
(89) See id. (noting that the juror's conflicting testimony on direct and cross examination led the trial court to conclude that the juror's opinion was not "fixed and absolute").
(91) Id. at 504.
(92) Id. at 505.
(93) See People v. Mather, 4 Wend. 229, 242 (N.Y. 1830) (stating that a juror who had formed an opinion regarding the guilt or innocence of the accused was not competent to serve); see also Gutman, supra note 70, at 290-94, 305.08 (discussing the United States' rejection of the English common law view that a "juror biased against the defendant was good for the King" and the rise of the issue to "constitutional importance"); supra notes 24-92 and accompanying text (discussing the evolution of New York law on the issue of jury disqualification for cause).
(94) See Mather, 4 Wend. at 242-43 (noting that a court need not examine the evidence upon which a juror forms his or her belief, nor need it examine the context in which the opinion was expressed).
(95) See id. at 244-45 (cautioning little weight should be given to a prospective juror's claim that his opinion regarding the defendant's guilt would change if the evidence indicated to the contrary). Notwithstanding such a prospective juror's assertions, the Mather court found that such a juror should be disqualified because the law holds jurors incapable of discarding their prejudices. Id. at 245.
(96) See id. at 233 (disallowing a prospective juror after he had said that he "believed [the defendant] was guilty" but later testified that "he had no fixed opinion upon the subject of the defendant's guilt").
(97) Code of Criminal Procedure, ch. 442, 1881 N.Y. Laws 601 (codified as amended at N.Y. CODE OF CRIM. PROC. (McKinney 1958) (superseded by N.Y. CRIM. PROC. LAW (McKinney 1992 & Supp. 2000)).
(98) See N.Y. CODE OF CRIM. PROC. [sections] 376 (McKinney 1958) (superseded by N.Y. CRIM. PROC. LAW (McKinney 1992 & Supp. 2000)) (stating that jurors could be challenged "[f]or such a bias, as, when the existence of the facts is ascertained, does in judgment of law disqualify the juror" and "[f]or the existence of a state of mind ... which satisfies the court, in the exercise of a sound discretion, that such juror cannot try the issue impartially and without prejudice to the substantial rights of the party challenging"). The first type of bias was known in the Code of Criminal Procedure as "implied bias" and the second as "actual bias." Id. Subdivision two of section 376, addressing "actual bias," was derived from an earlier legislative enactment governing challenges of prospective jurors. See Act of May 3, 1872, ch. 475, 1872 N.Y. Laws 1133, 1133-34 (stating that a "previous formation or expression of an opinion or impression in reference to the circumstances upon which any criminal action at law is based, or in reference to the guilt or innocence of the prisoner, or a present opinion or impression in reference thereto" did not constitute a ground for a juror challenge if the juror undertook an oath stating that he can "render an impartial verdict according to the evidence" and that his previously formed opinion "will not bias or influence his verdict" and provided that the court was satisfied that the juror could be impartial).
(99) See Act of May 7, 1873, ch. 427, [sections] 1, 1873 N.Y. Laws 681 (codified as amended at N.Y. CODE OF CRIM. PROC. [sections] 382 (McKinney 1958) (superseded by N.Y. CRIM. PROC. LAW (McKinney 1992 & Supp. 2000)) (empowering trial courts to try "[a]ll challenges of jurors" and authorizing appellate review of all such trial court determinations); see also Greenfield v. People, 74 N.Y. 277, 286 (1878) (per curiam) (noting that all challenges to prospective jurors were subject to appeal in light of the 1873 legislation).
(100) N.Y. CODE OF CRIM. PROC. [sections] 376(2).
(101) See id. (requiring a juror who had previously expressed an opinion as to the defendant's guilt or innocence to "declare an oath" indicating that such prior opinion "will not influence his verdict"); see also People v. Culhane, 305 N.E.2d 469, 477-78 (N.Y. 1973) (contrasting the common law, which required automatic disqualification of partial veniremen, with the law under the Code of Criminal Procedure).
(102) N.Y. CODE OF CRIM. PROC. [sections] 376(2); see also Culhane, 305 N.E.2d at 477 (noting that the recitation of the statutory oath would, at the court's discretion, be sufficient to dissipate the juror's expressed bias).
(103) N.Y. CODE OF CRIM. PROC. [sections] 376(2); see also People v. Hampartjoomian, 89 N.E. 451, 453 (N.Y. 1909) (upholding the seating of a juror who had expressed a vague "prejudice" and subsequently stated that he could almost positively set his prejudice aside and render an impartial verdict).
(104) N.Y. CODE OF CRIM. PROC. [sections] 376(2).
(105) 53 N.Y. 164 (1873).
(106) See id. at 172-73 (reasoning that the statutory requirement that the judge be satisfied of the challenged juror's impartiality, in combination with the expurgatory oath, satisfied the defendant's right to an impartial jury).
(107) 74 N.Y. 277 (1878) (per curiam).
(108) See id. at 282-83 (noting that one of the prospective jurors, Betts, persisted, after administration of the oath, in his belief that the defendant was guilty, but the second, Jennings, expressed that "he thought that he could remove" his impression of the defendant's guilt). The challenged jurors in Greenfield had read incriminating testimony in the local newspapers regarding a previous trial of the defendant on the same indictment. Id. at 281-83
(109) Id. at 280-81.
(110) See id. at 282 ("[The juror] said that the opinion or impression was formed by him on reading the testimony in the newspaper, that he still entertained the same, and had never had cause to change, nor to doubt the truth of it.").
(111) See Act of May 3, 1872, ch. 475, 1872 N.Y. Laws 1133 (governing the challenges of jurors in criminal cases).
(112) N.Y. CODE OF CRIM. PROC. [sections] 376 (McKinney 1958) (superseded by N.Y. CRIM. PROC. LAW (McKinney 1992 & Supp. 2000)).
(113) Greenfield, 74 N.Y. at 286.
(114) See id. at 286-87 (acknowledging that a trial court's denial of a challenge for favor was previously unreviewable by an appellate court).
(115) Id. at 288-89. The Greenfield court further inquired:
How can it be determined or assumed, that the mind, which has already yielded to the force of facts presented to it through the medium of sworn witnesses, and has formed an opinion thereon, will, on a second hearing of the same facts through a like medium, come to a different conclusion, or even so far command itself as to calmly and judicially weigh them again in the balance of a fresh and unbiased judgment? Can that mind be unbiased in the second pondering, of the same testimony, which has already caused it to preponderate and settle to or towards a conclusion? We think not.
(116) 33 N.E. 838 (N.Y. 1893).
(117) Id. at 840.
(118) Id. at 839-40.
(119) 96 N.Y. 115 (1884).
(120) See id. at 122 (noting that one of the prospective jurors, Johnson, who had stated that his opinion of the defendant's guilt would be taken with him into the jury box and that it "might assist [him] in forming his verdict," was "clearly incompetent to sit as a juror"). According to the court, other jurors "were not so clearly incompetent" as Johnson. Id. One venireperson, Waldron, when asked if his "`impression'" of the defendant's guilt would shadow his verdict, answered, "`[w]ell I would go according to the evidence, I think.'" Id. at 120. Another prospective juror, Willis, after testifying that he "`suppose[d]'" that he could render a verdict according to the evidence, admitted on cross-examination that, "`I think [the defendant] is guilty, from what I read.'" Id. at 120-21. Though "not so clearly [as] incompetent" as Johnson, the court nonetheless held that since "[t]hese jurors did not literally, nor in substance, make the declarations required" they should have been held incompetent by the trial court. Id. at 122-23.
(121) See id. at 119-122 (detailing the voit dire testimony of several prospective jurors).
(122) The Casey court was itself unequivocal:
It is not sufficient for a juror simply to declare that he supposes he can determine the case according to the evidence, or that he would go according to the evidence, or that his opinion as to the defendant's guilt ought not to influence his verdict, or that he supposes that he would have to go according to the witnesses.
Id. at 125.
(123) People v. Wilmarth, 51 N.E. 277, 279 (N.Y. 1898); see also People v. Flaherty, 57 N.E. 73, 75 (N.Y. 1900) (holding that a juror, who was not asked whether his opinion would influence his verdict, should have been disqualified); People v. Miller, 80 N.Y.S. 1070, t072 (App. Div. 3d Dep't 1903) (noting the omission of an inquiry into whether four prospective jurors believed their opinion would influence their verdict constituted reversible error).
(124) Balbo v. People, 80 N.Y. 484, 495 (1880); see also Casey, 96 N.Y. at 125 ("An honest but weak man may be so much biased as to think he goes by the evidence when his affections add weight to the evidence.").
(125) 18 N.E. 156 (N.Y. 1888).
(126) See id. at 162.63 (noting that a juror's expression as to the predetermined guilt or innocence of a defendant is "prima facie a disqualification").
(127) Id. at 163.
(128) See Casey, 96 N.Y. at 123 (noting that a juror may only be received if the trial court is convinced that the predispositions of the juror "will not influence their verdict").
(129) See Greenfield v. People, 74 N.Y. 277, 280-81, 286-87 (N.Y. 1878) (per curiam) (discussing challenges for favor and the 1873 legislative enactment that made such challenges reviewable by appellate courts).
(130) Compare People v. McGonegal, 32 N.E. 616, 619-20 (N.Y. 1892) (recognizing that bias against abortion providers was a preconception cognizable as a challenge for cause under the Code of Criminal Procedure), with People v. Lehman, 2 Barb. 216, 222 (N.Y. 1848) (noting that, under common law, denial of a challenge, based on bias against an abortion provider's occupation could not be appealed and, in any event, was not grounds for a challenge). But see People v. Torpey, 472 N.E.2d 298, 301 (N.Y. 1983) (noting that "[i]n virtually all of the cases decided by this court where a prospective juror has been challenged for cause based upon an actual bias, the challenge has been premised on the juror having expressed an opinion as to the guilt of the defendant for the charges being tried").
(131) The Code of Criminal Procedure reads, in pertinent part:
[T]he previous expression or formation of an opinion or impression in reference to the guilt or innocence of the defendant, or a present opinion or impression in reference thereto, is not a sufficient ground of challenge for actual bias, to any person otherwise legally qualified, if he declare on oath, that he believes that such opinion or impression will not influence his verdict, and that he can render an impartial verdict according to the evidence....
N.Y. CODE OF CRIM. PROC. [sections] 376(2) (McKinney 1958) (superseded by N.Y. CRIM. PROC. LAW (McKinney 1992 & Supp. 2000)).
(132) 32 N.E. 616 (N.Y. 1892).
(133) See id. at 619 (stressing that the proposed juror had a strong prejudice "against [abortion] itself and every one guilty of committing it"). The McGonegal court, while specifically noting that the bias in this case was of a less prejudicial kind, in that it was not personalized against the particular defendant, the court nonetheless stressed the importance of the prospective juror's unequivocal assertions that he would, "discharge his duty under oath, and decide the case upon the evidence," and "give the defendant the full benefit of the legal presumption of innocence." Id. at 620. Thus, although the "case was not within the purview of the act of 1872, and the statutory declaration [was not] available to remove the disqualification," id. at 619, the McGonegal court implied that, since the juror's bias was not directed at the individual defendant, an unequivocal promise to be impartial, despite the juror's generalized prejudice, was sufficient to purge the juror of any taint. See id. at 619.20 (noting that it would be a different case if the "prejudice was a personal one").
(134) See People v. Casey, 96 N.Y. 115, 123 (1884) (holding that a defendant's exhaustion of his peremptory challenges prior to the completion of jury selection is sufficient to merit review of denied challenges for cause).
(135) Id. (holding that the defendant is necessarily harmed when he is "obliged to exhaust his peremptory challenges" by a wrongful decision of the trial court).
(136) 96 N.Y. 115 (1884).
(137) Id. at 123.
(138) McGonegal, 32 N.E. at 617.
(139) See People v. Culhane, 305 N.E.2d 469, 473 (N.Y. 1973). The court in Culhane explained that reversible error exists where: 1) a trial court improperly denies a challenge for cause, 2) the defendant exercises a peremptory challenge on the prospective juror, and 3) the defendant's peremptory challenges are exhausted before jury selection is completed), Id.
(140) See Act of May 3, 1872, ch. 475, 1872 N.Y. Laws 11,33 (establishing the expurgatory oath as a means of cleansing prospective juror of their preconceived biases); see also supra notes 97-104 and accompanying text (discussing the 1872 legislation and its incorporation into the 1881 Code of Criminal Procedure).
(141) See People v. Wilmarth, 51 N.E. 277, 278 (N.Y. 1898) (defining the two parts of the oath as follows: "[f]irst, whether the opinion or impression which the juror has will influence his verdict; and, second, whether he can render an impartial verdict according to the evidence").
(142) See Culhane, 305 N.E.2d at 480 (noting that additional statements by the juror, which undermine or impeach the declaration of impartiality, render the expurgatory oath ineffective).
(143) See supra notes 134-39 and accompanying text (discussing the New York Court of Appeals' "liberal standard for preservation and review of erroneous rulings on challenges for cause").
(144) Criminal Procedure Law, ch. 996, 1970 N.Y. Laws 3117 (codified as amended at N.Y. CRIM. PROC. LAW (McKinney 1992 & Supp. 2000)).
(145) The New York Criminal Procedure Law was enacted on May 20, 1970, and became effective on September 1, 1971. Id. at 3117, 3372.
(146) See id. at 3372 ("Chapter four hundred forty-two of the laws of eighteen hundred eighty one, entitled `An act to establish a code of criminal procedure,' and all acts amendatory thereof and supplemental thereto are hereby repealed"); see also N.Y. CRIM. PROC. LAW [sections] 1 practice commentary (McKinney 1992) (noting that, although the Code of Criminal Procedure had governed criminal practice for nearly ninety years, it had never been part of the Consolidated Laws of New York State).
(147) See N.Y. CRIM. PROC. LAW [sections] 270.20 (McKinney 1993 & Supp. 2000) (governing challenges for cause of a prospective juror).
(149) Compare N.Y. CRIM. PROC. LAW [sections] 270.20(1)(b), with N.Y. CODE OF CRIM. PROC. [sections] 376(2) (McKinney 1958).
(150) N.Y. CRIM. PROC. LAW [sections] 270.20(1)(b). The statute also expanded upon the Code of Criminal Procedure's definition of "implied bias," allowing disqualification not only for relationships enumerated by statute but for any "other relationship to [the defendant, a victim, a witness, or an attorney for a party] that [is] likely to preclude him from rendering an impartial verdict." Id. [sections] 270.20(1)(c); see also People v. Culhane, 305 N.E.2d 469, 478-79 n.2 (N.Y. 1973) (noting that the Criminal Procedure Law allowed challenges for cause based on a wider variety of relationships than the Code of Criminal Procedure had previously allowed).
(151) N.Y. CRIM. PROC. LAW [sections] 270.20(2). The language quoted in the text was, however, a grammatical departure from the Code of Criminal Procedure. The Code called on the trial court to review challenges by simply requiring it to be "satisfie[d]" that the juror was impartial or that the expurgatory oath purged the juror of bias to the court's satisfaction. N.Y. CODE OF CRIMINAL PROCEDURE [sections] 376(2).
(152) Compare N.Y. CRIM. PROC. LAW [sections] 270.20(2) (requiring a defendant, in order to assert reversible error, to either 1) exhaust his peremptory challenges prior to the erroneous denial of a challenge for cause, or 2) to exercise a peremptory challenge on such prospective juror and exhaust his peremptory challenges prior to the completion of jury selection), with People v. Flaherty, 57 N.E. 73, 75 (N.Y. 1900) (finding error where the trial court overruled the defendant's challenge for cause and thereby required him to use his final peremptory challenge on a prospective juror who had formed an opinion regarding the guilt of the defendant), and People v. Casey, 96 N.Y. 115, 123 (1884) (finding that the defendant was harmed when forced to exhaust his peremptory challenges because of an erroneous denial of his challenge for cause of a prospective juror).
(153) N.Y. CRIM. PROC. LAW [sections] 270.20(2).
(156) See People v. Pagan, 595 N.Y.S.2d 486, 487 (App. Div. 2d Dep't 1993) (mem.) (stating that the defendant waived appellate review over an erroneous refusal to dismiss a juror for cause because he made a considered choice not to use an available peremptory challenge against that juror).
(157) See, e.g., State v. Green, 392 S.E.2d 157, 160 (S.C. 1990) (requiring the defendant to affirmatively demonstrate that he has been deprived of a fair trial in order to obtain reversal based on an erroneous denial of a challenge for cause). Other state and federal jurisdictions have adopted the New York per se reversal rule. See, e.g., United States v. Allsup, 566 F.2d 68, 71 (9th Cir. 1977) (stating that it is usually prejudicial error if the court inhibits a party from challenging peremptorily or for cause, and that actual prejudice need not be shown for a reversal); State v. Bennett, 382 S.E.2d 322, 324 (W. Va. 1989) (reversing a conviction, without a showing of actual prejudice to the defendant, where the trial judge erroneously refused to strike two jurors for cause).
(158) People v. Foster, 473 N.Y.S.2d 978, 983 (App. Div. 2d Dep't 1984), modified on other grounds, 480 N.E.2d 340 (N.Y. 1985) (mem.) (emphasis added); see also People v. Torpey, 472 N.E.2d 298, 300, 302-03 (N.Y. 1984) (ordering a new trial where the trial court erroneously denied a challenge for cause and where defendant met the preservation requirements of Criminal Procedure Law section 270.20); People v. Bentz, 648 N.Y.S.2d 642, 643 (App. Div. 2d Dep't 1996) (mem.); People v. Lawrence, 552 N.Y.S.2d 385, 387 (App. Div. 2d Dep't 1990) (mem.); People v. Branch, 399 N.Y.S.2d 930, 932 (App. Div. 3d Dep't 1977). This `automatic-reversal' rule is arguably not required by the plain language of section 270.20. The statute provides that an erroneous denial of a challenge for cause "does not constitute reversible error unless" the preservation requirements are met. N.Y. CRIM. PROC. LAW [sections] 270.20(2) (emphasis added). Thus, the language of the statute does not affirmatively require reversal every time an erroneous denial of a challenge for cause is preserved for review; rather, it could just as easily be read as merely setting a minimum standard. However, both the Court of Appeals and intermediate appellate courts have interpreted section 270.20(2) sub silentio to conform to pre-1971 New York law, and have not required any showing of prejudice beyond the minimum standard set forth in the statute. The only decision that has even arguably deviated from this automatic-reversal rule is People v. Apolinar, 617 N.Y.S.2d 32 (App. Div. 2d Dep't 1994) (mem.), in which the Second Department held that the erroneous denial of a challenge for cause was harmless, despite the defendant's satisfaction of the section 270.20 requirements, where the court granted the defense an extra peremptory challenge. Id. at 34; see also infra notes 225-32 and accompanying text (discussing People v. Apolinar, 617 N.Y.S.2d 32 (App. Div. 2d Dep't 1994) (mem.)).
(159) N.Y. CODE OF CRIM. PROC. [sections] 376(2) (McKinney 1958) (superseded by N.Y. CRIM. PROC. LAW (McKinney 1992 & Supp. 2000)).
(160) See N.Y. CRIM. PROC. LAW [sections] 270.20(1)(b) (discussing actual bias as grounds for a challenge for cause).
(161) See supra notes 101-04 and accompanying text (discussing the inclusion of the expurgatory oath in the 1881 Code of Criminal Procedure).
(162) 305 N.E.2d 469 (N.Y. 1973).
(163) Id. at 478-79 n.2.
(164) See id. at 478 n.2 (noting that the new statute, though "not determinative of the case now before the court," remains relevant to consideration of this "bothersome area of the law").
(165) See id. at 480 (reviewing People v. Wilmarth, 51 N.E. 277 (N.Y. 1898), People v. Martell, 33 N.E. 838 (N.Y. 1893), People v. Casey, 96 N.Y. 115 (1884), and other case law of the New York Court of Appeals).
(166) See id. at 481-82 (explaining that two of the challenged venirepersons swore that their opinions would not effect their verdicts and that another stated, after swearing the oath, that he would tend to side with a prosecution witness).
(167) See id. at 478 n.2 (noting that the court had previously "gone beyond the exigencies of the case, to note the effect of recent legislation").
(168) Id. at 478-79 n.2.
(169) See id. at 481 n.3 (noting that, unless juror disqualification would create a strong bias in favor of the defendant, "[i]t is almost always wise for a trial court to err on the side of disqualification").
(171) 432 N.E.2d 758 (N.Y. 1982).
(172) People v. Johnson, 730 N.E.2d 932, 938 (N.Y. 2000).
(173) See Blyden, 432 N.E.2d at 758-59 (noting that the prospective juror's bias extended to all people "the government considers minorities" and stemmed from his perception of governmental affirmative action requirements).
(174) See id. (noting that defendant removed the prospective juror with a peremptory challenge after the denial of his challenge for cause and that defendant exhausted his peremptory challenges prior to the completion of jury selection, thereby preserving the issue for appeal).
(175) See id. at 760 (noting that the new statute focuses on the juror's "state of mind" and does not reference "any mechanical procedure for purging the taint of a prior expression of opinion").
(176) See id. (noting that a prospective juror who has expressed bias must still unequivocally refute his impartiality before being empanelled).
(177) See id. (crediting the expurgatory oath as "an effective means of resolving doubt about a prospective juror's impartiality").
(180) See id. ("The costs to society and the criminal justice system of discharging the [biased] juror are comparatively slight, while the costs in fairness to the defendant and the general perception of fairness of not discharging such a juror are great.").
(181) See id. at 761 (emphasizing "[t]he fundamental importance of a defendant's right to trial by an impartial jury").
(182) 472 N.E.2d 1026 (N.Y. 1984) (mem.).
(183) 472 N.E.2d 298 (N.Y. 1984).
(184) See Williams, 472 N.E.2d at 1027 (emphasizing that a rule which limited the discretion of the trial judge would result in the dismissal "of every potential juror who disclosed anything but total absence of prejudice").
(185) See id. (distinguishing Williams from People v. Blyden, 432 N.E.2d 758 (N.Y. 1982), in that Williams involved a juror who merely expressed racial bias "in the abstract," whereas the excused juror in Blyden disclosed "personal conduct ... taken in consequence of" racial animus).
(186) See id. at 1026-27 (finding no error despite the fact that the prospective jurors expressed disapproval of interracial marriages). Defendant Williams, an African-American, had a Caucasian girlfriend with whom he had fathered a child. Id. at 1027.
(187) See id. (noting the impracticability of a system which provides no exception for a juror who express a "readiness to lay his feelings aside in the discharge of his duties as a juror").
(190) See People v. Torpey, 472 N.E.2d 298, 302 (N.Y. 1984) ("[R]eaffirm[ing] the holding in People v. Williams" but nonetheless determining that prospective juror bias could lead to exclusion "as a matter of law").
(191) See id. at 300 (noting the prospective juror's agreement with defense counsel that the defendant "ha[d] a couple of big strikes against him").
(192) See id. (noting that, during voir dire, the prospective juror herself expressed that it would "probably" be unfair for someone of her "frame of mind" to sit in judgment of the defendant).
(193) See id. (stating that defense counsel challenged the prospective juror for cause not once, but "several times").
(194) Id. at 300-01. See N.Y. CRIM. PROC. LAW [sections] 270.20(2) (McKinney 1993) (setting forth the requirements for preservation of the issue for appeal).
(195) See Torpey, 472 N.E.2d at 301,303 (holding that it is error to deny a challenge for cause where there is uncertainty regarding a prospective juror's bias); see also N.Y. CRIM. PROC. LAW [sections] 270.20(1)(b) (permitting a challenge for cause based on actual bias where the prospective juror "has a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at trial").
(196) See Torpey, 472 N.E.2d at 301 (recognizing, however, that a large majority of juror bias cases previously adjudged by the court were premised upon the juror's predetermination of the guilt of the defendant).
(197) See Id. at 302-03 (noting, for example, that the prospective juror in this case could retain the impression that the defendant was a "hit man" and punish him for that conduct, notwithstanding the juror's doubt about the defendant's guilt in the instant case).
(198) Id. at 302.
(199) Id. at 303.
(200) See id. (emphasizing that the contested juror's "declarations ... aimed at purging her expressed bias revealed some uncertainty and, especially when read with the rest of her testimony, did not overcome the bias") (emphasis added).
(201) Id. at 302.
(202) Id. at 303.
(203) See infra Parts III.A-C (discussing cases litigated on the issue of challenges for cause since 1984).
(204) See infra Part III.A (discussing the preservation requirements of N.Y. Criminal Procedure Law section 270.20).
(205) See infra Part III.B (discussing the types of opinions that constitute actual bias of a prospective juror).
(206) See infra Part III.C (discussing the instances in which a prospective juror's stated repudiation of bias is sufficient to overcome that initial expression of bias).
(207) N.Y. CRIM. PROC. LAW [sections] 270.20(2) (McKinney 1993).
An erroneous ruling by the [trial] 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.
(208) See People v. Foster, 473 N.Y.S.2d 978, 982 (App. Div. 2d Dep't 1984), modified on other grounds, 480 N.E.2d 340 (N.Y. 1985) (mem.) (noting that "an error in rejecting a challenge for cause is waived if the defendant fails to exercise an available peremptory challenge").
(209) Id. at 982.
(210) 473 N.Y.S.2d 978 (App. Div. 2d Dep't 1984), modified on other grounds, 480 N.E2d 340 (N.Y. 1985) (mem.).
(211) Id. at 980. Joint exercise of peremptory challenges in multiple-defendant cases is required by N.Y. Criminal Procedure Law sections 270.25(3) (in felony cases) and 360.30(2) (in misdemeanor cases), both of which provide that such challenges may only be exercised if the majority of defendants join them. See N.Y. CRIM. PROC. LAW [subsections] 270.25(3), 360.30(211.
(212) See N.Y. CRIM. PROC. LAW [sections] 270.25(3) (noting, specifically, that "[w]hen two or more defendants are tried jointly, the number of peremptory challenges prescribed ... is not multiplied by the number of defendants, but such defendants are to be treated as a single party").
(213) See N.Y. JUD. LAW [sections] 511(5) (McKinney Supp. 1989) (repealed 1989) (disqualifying from jury service any person who has served on a jury within the state within the prior two years).
(214) See Foster, 473 N.Y.S.2d at 980.
(215) See id. After failing to secure his co-defendant's cooperation, Foster requested that the court provide him an independent peremptory challenge, but the request was denied. Id.
(217) Foster, as well as his co-defendants, were convicted of second degree murder. Id. Three years following his conviction, Foster moved pursuant to N.Y. Criminal Procedure Law section 440.10 to vacate his conviction, alleging that the challenged juror's participation rendered the verdict void. Id. Included in defendant's motion papers was a letter from the United States District Court for the Eastern District of New York indicating that the challenged juror had indeed served on a "special Grand Jury" for an eighteen-month period, beginning six months prior to Foster's trial. Id. The trial court refused to vacate the judgment, holding that the issue was sufficiently preserved for appellate review. Id.
(218) See id. (noting that even the prosecutor agreed that the challenged juror should have been excused).
(219) See id. at 983 ("Since Jerry Foster objected to the juror's presence at each available opportunity, his co-defendants' refusal to join with him could not constructively inflict upon him an intent to waive the objection.").
(220) Id. (citation omitted).
(221) See, e.g., People v. Blyden, 432 N.E.2d 758, 760-61 (N.Y. 1982) (reversing the conviction of a defendant where a juror with bias against minorities survived a challenge for cause); People v. Watts, 622 N.Y.S.2d 574, 575 (App. Div. 2d Dep't 1995) (mem.) (reversing a narcotics conviction where a juror with strong anti-drug sentiments had been empanelled).
(222) See People v. Butts, 527 N.Y.S.2d 880, 882 (App. Div. 3d Dep't 1988) (noting that N.Y. Criminal Procedure Law section 270.20 requires only that the challenged juror be excused peremptorily and that the defendant exhaust his peremptory challenges prior to completion of the jury selection).
(223) 527 N.Y.S.2d 880 (App. Div. 3d Dep't 1988).
(224) See id. at 882 (distinguishing the case from People v. Brown, 489 N.Y.S.2d 92 (App. Div. 2d Dep't 1985) (mem.), since here the prosecution conceded that the defendant exhausted his peremptory challenges and the record reflected that such challenges were used on jurors initially challenged for cause).
(225) 617 N.Y.S.2d 32 (App. Div. 2d Dep't 1994) (mem.).
(226) See id. at 34 (noting that the trial court granted defendant extra peremptory challenges to specifically ameliorate any harm caused to the defendant by the denial of his challenge for cause). Although the court in Apolinar never addressed the issue of defendant's compliance with Criminal Procedure Law section 270.20, the defendant necessarily was in compliance, for if he had not been, the trial court would have had no occasion to grant him additional peremptory challenges.
(227) See id. (noting that the challenged juror had vacillated as to whether she would "stick to [her] guns" in the face of pressure from her fellow jurors) (alteration in original).
(228) See id. (noting that what the court characterized as a "similar request" on behalf of the prosecution was denied by the trial court).
(230) See People v. Foster, 473 N.Y.S.2d 978, 982 (App. Div. 2d Dep't 1984) (noting that the theory underlying the preservation requirements of Criminal Procedure Law section 270.20 "is that it is necessary that the objectionable juror be forced upon the complaining party who could not be rid of the juror by the exercise of a peremptory challenge").
(231) Apolinar, 617 N.Y.S.2d at 34.
(232) See id. All this, of course, begs the question: if the trial court was concerned enough to grant extra peremptory challenges, why did it not simply grant defendant's earlier challenge for cause?
(233) People v. Torpey, 472 N.E.2d 298, 301 (N.Y. 1984).
(234) See id. (noting that the statute "allows a challenge for cause where a prospective juror `has a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at the trial"').
(235) See id. (interpreting the term "actual bias" to include situations other than where the juror has a preconception as to the defendant's guilt).
(236) See People v. Blyden, 432 N.E.2d 758, 761 (N.Y. 1982) (reversing the conviction of an African-American defendant where a juror with "hostility to racial minorities" survived a challenge for cause).
(237) See Torpey, 472 N.E.2d at 301 (noting that the challenged juror expressed an opinion that the defendant was associated with the Mafia).
(238) See People v. Morton, 707 N.Y.S.2d 185, 186 (App. Div. 2d Dep't 2000) (mem.) (noting that a juror evinced actual bias by stating that defendant with a prior felony record might have a tendency to "do it again").
(239) See People v. Watts, 622 N.Y.S.2d 574, 575 (App. Div. 2d Dep't 1995) (mem.) (reversing a narcotics conviction where a prospective juror expressed doubt about his ability to be fair due to his strong anti-drug sentiment).
(240) See id. (noting that the prospective juror did not unequivocally state that he would not be influenced by defendant's drug history); People v. Maddox, 572 N.Y.S.2d 70, 71 (App. Div. 2d Dep't 1991) (mem.) (noting that the challenged juror based his opposition to drugs on his experience in Vietnam, where he saw his comrades `"destroyed with drugs"').
(241) See People v. Scott, 636 N.Y.S.2d 15, 16 (App. Div. 1st Dep't 1995) (mem.) (explaining that it was proper for the trial court to dismiss a juror who advocated for the legalization of drugs).
(242) See People v. Scott, 566 N.Y.S.2d 399. 400 (App. Div. 2d Dep't 1991) (mem.) (finding the record "devoid of any indication" that the juror would not be influenced by her relationship with her nephew, an agent for the Federal Bureau of Investigation).
(243) See People v. Lawrence, 552 N.Y.S.2d 385, 386-87 (App. Div. 2d Dep't 1990) (mem.) (indicating that the juror would sympathize with a child witness).
(244) See, e.g., People v. Word, 689 N.Y.S.2d 36, 37 (App. Div. 1st Dep't 1999) (mem.) (finding no error where a prospective juror who expressed a strong bias against police officers was excused); People v. Faulkner, 689 N.Y.S.2d 41, 42 (App. Div. 1st Dep't 1999) (mem.) (noting that it was proper to excuse jurors whose statements led to the conclusion that they had negative feelings toward police) People v. Rodriguez, 629 N.Y.S.2d 211, 212 (App. Div. 1st Dep't 1995) (mem.) (noting that the prospective juror stated that he viewed plainclothes police officers as "sneaky").
(245) See, e.g., People v. Culhane, 305 N.E.2d 469, 477 (N.Y. 1973) (quoting the testimony of a potential juror in which he stated that he "would tend to believe" a police officer more than other witnesses); People v. White, Nos. 1219, KA 00-00465, 2000 WL 1449623 at *1 (N.Y. App. Div. 4th Dep't Sept. 29, 2000) (mem.) (reversing a judgment where a prospective juror stated that she considered police officers more credible than civilians); People v. Moore, 569 NY.S.2d 102, 103 (App. Div. 2d Dep't 1991) (mem.) (finding error where a prospective juror, the mother of police officer, expressed inclination to credit police testimony over that of defendant).
(246) See People v. Stone, 659 N.Y.S.2d 674, 676 (App. Div. 4th Dep't 1997) (mem.) (noting the prospective juror's concern regarding a prosecution witness who received a plea bargain in exchange for his testimony).
(247) See Culhane, 305 N.E.2d at 481 (finding error where a correction officer expressed doubt that the defendants, who were inmates at the time of alleged offense, could be believed); People v. Brzezicki, 672 N.Y.S.2d 225, 226 (App. Div. 4th Dep't 1998) (mem.) (finding reversible error where juror expressed doubts about her ability to be impartial because defendant had been arrested and brought to court).
(248) See People v. Johnson, 676 N.Y.S.2d 366, 366 (App. Div. 4th Dep't 1998) (mem.) (noting that the juror stated that she, "[didn't] know if [she] could deal with being in judgment of someone's destiny"); People v. Cunningham, 635 N.Y.S.2d 304, 308 (App. Div. 3d Dep't 1995) (finding that such discomfort does not rise to the level of "dubious impartiality" required for disqualification).
(249) See People v. Alston, 636 N.Y.S.2d 270, 271 (App. Div. 1st Dep't 1995) (mem.) (noting that the trial court discharged the juror sua sponte after she stated that the prison system `"just doesn't work"' and expressed dismay at the possibility of sending the defendant into `"that system"').
(250) People v. Butts, 527 N.Y.S.2d 880, 882 (App. Div. 3d Dep't 1988).
(252) See People v. Williams, 472 N.E.2d 1026, 1027 (N.Y. 1984) (mem.) (noting that the prospective jurors voiced disapproval of interracial marriage in a trial of an African-American defendant who had a Caucasian girlfriend).
(253) See People v. Snyder, 592 N.Y.S.2d 469, 469-70 (App. Div. 2d Dep't 1993) (mem.) (stating that the venireperson expressed discomfort at viewing fragments of the skull of the victim, who had allegedly been struck seven times in the head with a hammer).
(254) See People v. Pagan, 595 N.Y.S.2d 486, 487 (App. Div. 2d Dep't 1993) (mem.) (noting that the juror initially could not guarantee that his experience would not influence his verdict).
(255) See People v. Zanghi, 684 N.Y.S.2d 804, 806 (App. Div. 4th Dep't 1998) (mem.) (finding no error in the seating of a juror who expressed a general dislike for the criminal justice system but indicated a willingness to follow the court's instructions).
(256) People v. Tong Feng Lu, 710 N.Y.S.2d 544, 544-45 (App. Div. 2d Dep't 2000).
(257) See People v. Johnson, 632 N.Y.S.2d 113, 114 (App. Div. 1st Dep't 1995) (mem.) (noting that the prospective juror `"had quite a few [homeless] people arrested"' and that she stated during voir dire that she `"seemed"' to recognize the defendant) (alteration in original).
(258) 632 N.Y.S.2d 131 (App. Div. 1st Dep't 1995) (mem.).
(259) See id. at 132. The juror, when asked if his attitude toward the system could affect his impartiality, stated, `"It may. I don't know. I really I have to be honest. It could."'). Id.
(260) See id. (noting that the prospective juror's "sour" feeling arose from an incident where his mother was the victim of a holdup and police officers dissuaded him from pursuing a prosecution).
(261) See id. at 133 (noting that the juror never made an unequivocal statement to overcome the initial showing of bias).
(262) 608 N.Y.S.2d 29 (App. Div. 4th Dep't 1993) (mem.).
(263) See id. at 30 (noting that the trial court's offer to inform the prospective juror that defense counsel was assigned, rather than hired, was insufficient to overcome the impartiality).
(264) 672 N.Y.S.2d 225 (App. Div. 4th Dep't 1998) (mem.).
(265) See id. at 226 (noting that the prospective juror "later nodded his head in agreement when defense counsel asked whether the panel understood that defendant was presumed innocent").
(266) 525 N.Y.S.2d 387 (App. Div. 3d Dep't 1988).
(267) Id. at 389.
(268) 636 N.Y.S.2d 74 (App. Div. 2d Dep't 1995) (mem.).
(269) See id. at 75 (observing that the venireperson expressed a `"problem"' with the "judicial tenet" of the defendant's right to silence).
(270) See id. (O'Brien, J., dissenting) (stressing that the prospective juror was never asked whether he would obey the court's instruction to attach no significance to the defendant's failure to testify).
(271) See id. (characterizing the venireperson's responses to defense counsel's questions, in the absence of an instruction regarding the defendant's right to cross-examination, to be "logical and unbiased"); see also People v. Archer, 619 N.Y.S.2d 738, 739 (App. Div. 2d Dep't 1994) (mem.) (stating that no actual bias exists where a prospective juror expresses a desire to hear both sides of the case in response to a misleading defense counsel inquiry).
(272) 707 N.Y.S.2d 128 (App. Div. 2d Dep't 2000) (mem.).
(273) See id. at 129 (noting that the trial "court failed to conduct further inquiry, and the juror never unequivocally stated that he could render an impartial verdict based on the evidence presented").
(274) 628 N.Y.S.2d 739 (App. Div. 2d Dep't 1995) (mem.).
(275) Id. at 740.
(277) 671 N.Y.S.2d 62 (App. Div. 1st Dep't 1998) (mem.).
(278) See id. at 63 (noting that the prospective juror failed to "comprehend the applicable legal principles, as instructed by the court").
(279) As the New York Court of Appeals has stated:
It is only when it is shown that there is a substantial risk that such [negative] predispositions will affect the ability of the particular juror to discharge his responsibilities (a determination committed largely to judgment of the Trial Judge with his peculiar opportunities to make a fair evaluation) that his excuse is warranted.
People v. Williams, 472 N.E.2d 1026, 1027 (N.Y. 1984) (mem.); see also People v. Rudolph, 698 N.Y.S.2d 912, 913 (App. Div. 2d Dep't 1999) (finding no actual bias where a prospective juror indicated that she believed that the defendant had an obligation to take the stand but then responded affirmatively to the trial judge's correction of that belief); People v. Burns, 565 N.Y.S.2d 140, 141 (App. Div. 2d Dep't 1991) (mem.) (noting that the prospective juror stated affirmatively that her desire to see the defendant testify as to `"the other side of the story"' would not affect her verdict).
(280) 654 N.Y.S.2d 817 (App. Div. 2d Dep't 1997) (mem.).
(281) Id. at 819.
(282) See id. (noting that the prospective, juror, the girlfriend of a police officer, stated that there was a possibility that she had socialized with police who would serve as witnesses at trial).
(283) 681 N.Y.S.2d 51 (App. Div. 2d Dep't 1998) (mem.).
(284) See Id. at 51 (indicating that the venireperson stated that a `"person [accused of a crime] would need to say, I wasn't here. I was there or I couldn't have done this because ...'").
(285) See, e.g., People v. Thorn, 704 N.Y.S.2d 402, 403 (App. Div. 4th Dep't 2000) (mem.) (indicating that a prospective juror, the mother of a police officer, who stated that she would `"do her best'" to be fair did not purge herself of bias in a murder trial); People v. Maddox, 572 N.Y.S.2d 70, 71 (App. Div. 2d Dep't 1991) (mem.) (finding that a prospective juror should have been dismissed from service on a drug distribution case after saying that he saw his comrades in Vietnam `"destroyed with drugs,"' even though he also stated that he would try to be impartial); People v. Lawrence, 552 N.Y.S.2d 385, 386-87 (App. Div. 2d Dep't 1990) (mem.) (noting that the prospective juror stated that she would try to put aside her sympathy for the nine-year-old complainant in a sexual abuse trial).
(286) See, e.g., People v. Blyden, 432 N.E.2d 758, 761 (N.Y. 1982) (stating that the venireperson indicated that he thought he could put aside his resentment of minorities in the assault trial of an African-American defendant).
(287) See, e.g, People v. Scott, 566 N.Y.S.2d 399, 400 (App. Div. 2d Dep't 1991) (mem.) (noting that the prospective juror stated that she hoped that her relationship with her nephew, an agent with the Federal Bureau of Investigation, would not affect her ability to be impartial in a case involving an aggravated assault upon a police officer).
(288) See, e.g., People v. Moore, 569 N.Y.S.2d 102, 103 (App. Div. 2d Dep't 1991) (mem.) (noting that the prospective juror didn't know if her son's job as a police officer would influence her).
(289) See People v. Harris, 669 N.Y.S.2d 355, 356 (App. Div. 2d Dep't 1998) (mem.) (noting that the trial court has the "peculiar advantage" of seeing and hearing the prospective jurors).
(290) Id. at 355. At issue in Harris, a child sexual-abuse case, was the prospective juror's "sympathy toward children." Id.
(291) People v. Brzezicki, 672 N.Y.S.2d 225, 226 (App. Div. 4th Dep't 1998) (mem.); see also supra notes 264-65 and accompanying text (discussing the Brzezicki case).
(292) 686 N.Y.S.2d 372 (App. Div. 1st Dep't 1999) (mem.).
(293) See id. at 373-74 (noting that defense counsel objected during the polling of already admitted jurors that the prosecutor had "`badgered'" the nervous juror into giving responses which would please the judge). The juror in Butler expressed an impression that the defendant was a recidivist, based upon comments made in her presence by a fellow venireperson that recognized the defendant from his job as a corrections officer. Id. Defendant moved for a mistrial, or, in the alternative, the dismissal of the seated jurors, both of which motions were denied. Id. During polling conducted to determine the impact of the correction officer's comment, the juror at issue stated that she would "`try'" to put her impressions of the defendant aside. Id.
(294) 429 N.Y.S.2d 913 (App. Div. 2d Dep't 1980) (mem.).
(295) See id. at 915-16 (encouraging trial judges to "disqualify prospective jurors of questionable impartiality," thereby avoiding the possibility of unfairness). The biases of two prospective jurors were at issue in Moorer, a drug possession case. The first juror, referred to in the text, was a high school guidance counselor who considered the use of cocaine "`inadvisable.'" Id. at 914. The second challenged juror had been the victim of numerous crimes, including six burglaries in the preceding decade. Id. at 915.
(296) 703 N.Y.S.2d 328 (App. Div. 4th Dep't 2000) (mem.).
(297) See id. at 331 (noting that the prospective juror's comments, as a whole, demonstrated his predisposition towards the defendant's guilt).
(298) See id. at 332 (Scudder, J., dissenting) (contending that the prospective juror's general belief that one who has been indicted is guilty of committing a crime would not necessarily bar that juror from treating a particular defendant fairly).
(299) 730 N.E.2d 932 (N.Y. 2000).
(300) See id. (deciding People v. Johnson, 681 N.Y.S.2d 489 (App. Div. 1st Dep't 1998), People v. Sharper, 681 N.Y.S.2d 12 (App. Div. 1st Dep't 1998), and People v. Reyes, 681 N.Y.S.2d 241 (App. Div. 1st Dep't 1998)).
(301) See id. at 933-37 (reciting the facts of the consolidated cases).
(302) Johnson, 681 N.Y.S.2d 489; Sharper, 681 N.Y.S.2d 12. Defendants Karim Johnson and Chance Sharper were indicted for first degree robbery and tried together. Johnson, 730 N.E.2d at 933. Their mutual defense was predicated on police incompetence. Id. Although the Appellate Division, First Department, released decisions in both cases simultaneously, the appellate court published separate decisions. Johnson, 681 N.Y.S.2d 489, 489; Sharper, 681 N.Y.S.2d 12, 12. The opinion in Johnson explicitly stated that it was decided for the reasons stated in Sharper. Johnson, 681 N.Y.S.2d at 489-90. Johnson differed only with respect to facts relied upon by defendant Johnson which defendant Sharper never addressed. Id. Namely, Prospective Juror 7 expressed, during voir dire, a concern that his hospital internship would be compromised by his jury service. Id. The Johnson opinion stated that this additional fact did not "dilute the significance of the bias manifested by the juror." Id. But see id. at 490 (Mazzarelli, J., dissenting) (emphasizing the prominence of this additional fact in defendant Johnson's challenge to Prospective Juror 7).
(303) The Manhattan District Attorney's office conducted the prosecution of defendants Johnson and Sharper. Sharper, 681 N.Y.S.2d at 13.
(304) Id. Prospective Juror 7 also indicated that his interactions with both police officers and prisoners at Bellevue Hospital inspired a great respect for the former category of individual. Id.
(306) See id. at 14 (noting that the prospective juror made a second statement indicating bias and failed to make "an unambiguous promise to be fair").
(307) People v. Reyes, 681 N.Y.S.2d 241 (App. Div. 1st Dep't 1998) (mem.).
(308) Id. at 242.
(309) See People v. Johnson, 730 N.E.2d 932, 935-36 (N.Y. 2000) (reprinting the trial court record of the juror voir dire in Reyes).
(310) The First Department concluded that the trial court's verdict should stand because "[t]he court properly exercised its discretion in denying defendant's challenges for cause as to two prospective jurors who expressed reservations about drug dealing and/or defendant's criminal history." Reyes, 681 N.Y.S.2d at 242.
(312) See Johnson, 730 N.E.2d at 941 (concluding that the principle is "simple:" once a juror expresses doubt as to whether he or she may be fair and impartial, the trial judge must either dismiss the juror or "elicit some unequivocal assurance" of impartiality).
(313) Id. at 941 (quoting People v. Culhane, 305 N.E.2d 469, 481 n.3 (N.Y. 1973).
(314) Id. at 939; see also People v. Sharper, 681 N.Y.S.2d 12, 13 (App. Div. 1st Dep't 1998) (mem.), aff'd sub nom. People v. Johnson, 730 N.E.2d 932, 939 (N.Y. 2000) (stating that the law "is clear that a prospective juror who expresses partiality towards [one side] and cannot unequivocally promise to set aside this bias should be removed for cause").
(315) Johnson, 730 N.E.2d at 940.
(316) See id. (noting that the statements of Prospective Juror 7 in Johnson and Sharper were analogous to the statements made by Prospective Jurors 13 and 14 in Reyes in that none of the three prospective jurors "unequivocally represented that they could be fair and impartial").
(317) See id. (noting that Prospective Juror 13 in Reyes was asked twice whether her "emotional feelings" about drug dealers would cloud her ability to be impartial in a trial for distribution of heroin).
(318) See id. (holding that a juror, who stated at one point that he "`guessed'" he could be impartial, but later conceded that he "would `tend to favor police testimony more than ... a civilian's testimony,'" was improperly empanelled).
(319) "CPL 270.20 authorizes parties to seek dismissal of a prospective juror based on `actual bias' whenever `[h]e has a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence'" Id. at 938 (quoting N.Y. CRIM. PROC. LAW [subsections] 270.20 practice commentators (McKinney 1992).
(320) See id. at 939 (setting forth the trial court's obligation, under Criminal Procedure Law section 270.20(1)(b) and ease law, to elicit "an unambiguous assurance of impartiality" before permitting a prospective juror to serve).
(321) See supra Parts III.B & III.C (addressing two areas where New York's intermediate appellate courts have been split: (1) the question as to what types of statements constitute actual bias, and (2) the question as to what constitutes an unequivocal repudiation of bias).
(322) See Johnson, 730 N.E.2d at 939-41 (citing cases from all four New York appellate divisions and therefore indicating that the bright-line standard is not a new one, but one already "followed throughout the State").
(323) See People v. Rodriguez, 631 N.Y.S.2d 842, 844 (App. Div. 1st Dep't 1995) (mem.) (finding such an unequivocal assurance to be unavailable where a prospective juror failed to understand the court's questions regarding her potential partiality).
(324) See Johnson, 730 N.E.2d at 937-40 (indicating that a court should not intrude upon a defendant's constitutional right to an impartial tribunal by seating jurors unable to provide "unequivocal assurance" that they will set aside bias and render an impartial verdict).
(325) Paul Shechtman, Docket Shrinking, Dissents Are Few, N.Y. L.J. (Court of Appeals: The Year in Review), Oct. 2, 2000, at S6.
(326) See Johnson, 730 N.E.2d at 941 (Bellacosa, J., dissenting) (suggesting that "[t]he operating rubrics derived from today's decision ... result in unwarranted nullification of otherwise properly tried cases"); id. at 942 (Bellacosa, J., dissenting) (contending that the Johnson majority "superimpose[s] a rigid review standard" over jury selection that is unavailable in the context of other trial practices).
(327) See supra Part II (analyzing juror disqualifications in the era predating the 1971 enactment of the Criminal Procedure Law); supra Part III (analyzing juror disqualification under the Criminal Procedure Law).
(328) People v. Mather, 4 Wend. 229, 242-43 (N.Y. Sup. Ct. 1830).
(329) Compare People v. Barber, 703 N.Y.S.2d 328, 331 (App. Div. 4th Dep't 2000) (mem.) (finding an unequivocal statement qualified by contrary statements to be insufficient to purge the bias of the prospective juror), with id. at 332 (Scudder, J., dissenting) (finding the venireperson's unequivocal statement that he would follow the trial court's instructions to be sufficient to purge any preconceptions of the venireperson).
(330) See Johnson, 730 N.E.2d at 940-41 (cautioning that a single statement may take on an entirely different meaning when viewed in the context of the entire record).
(331) See id. (placing the burden on the trial court to either elicit "unequivocal assurance" of impartiality in light of the whole record or else otherwise dismiss the prospective juror).
(332) See People v. Casey, 96 N.Y. 115, 122-23 (1884) (noting that even a venireperson who has recited the expurgatory oath may remain unqualified to serve as a juror if other statements made by the venireperson undermine the validity of the oath).
(333) See supra notes 38-96 and accompanying text (discussing the evolution of the grounds for juror disqualification in the nineteenth century New York courts).
(334) See supra Parts II & III (analyzing, in detail, New York common law on juror disqualification and the impact of the 1971 Criminal Procedure Law).
(335) See People v. Cancemi, 16 N.Y. 501, 504-05 (1858) ("The right secured by law to a fair and impartial jury, with minds open to receive and weigh the evidence, and balanced in regard to the matters to be tried, is of the highest importance, and should be carefully guarded by the courts, especially in cases involving human life.").
(336) See, e.g., People v. Culhane, 305 N.E.2d 469, 481 n.3 (N.Y. 1973) (emphasizing the court's interest in seating impartial jurors and in avoiding "cast[ing] a doubt on the legitimacy of the verdict even before the trial begins").
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|Author:||Abramovsky, Abraham; Edelstein, Jonathan I.|
|Publication:||Albany Law Review|
|Date:||Dec 22, 2000|
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