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Untruthful jurors in the federal courts: have we become comfortably numb?

"Let Justice be done though the heavens should fall." (1)
Abstract
I.    Introduction
II.   History of the Courts' Evaluation of Juror Bias
          A. The Doctrines of Actual and Implied Bias
          B. The Disarray of the Law of Juror Nondisclosure Before
          McDonough
III.  What McDonough Attempted to Accomplish, and Its Negative
      Effects
IV.   Fashioning a New Standard: An Objective Sliding-Scale Analysis
      of Bias
          A. The Problem of Focusing Solely on a Juror's State of Mind
          B. The Benefit of Assessing the Materiality of the
          Nondisclosure
          C. Applications to Past Instances of Juror Nondisclosure
V.    Conclusion


ABSTRACT

Everyone who believes in the jury system agrees that jurors should be impartial. However, voir dire as it is currently practiced in the federal courts has many systematic defects that do not always guarantee jurors' impartiality. For instance, when a juror lies during voir dire--even about a matter in their past that is remarkably similar to the case or issues at bar--the current federal standard only focuses on the subjective purposefulness of that juror's dishonesty. (2) The flaw in this approach is that it misses the point of due process: impartial, but not necessarily unintentionally dishonest, decision-makers. This Article deals with this problem by proposing a different standard to gauge the partiality of jurors who have not been wholly honest during voir dire.

This Article argues that courts should adopt a new standard for dealing with post-voir dire findings of juror dishonesty: a two-part sliding-scale standard to evaluate jurors for bias, rather than merely for dishonesty. This standard would instruct courts to consider: (1) the circumstances surrounding a juror's concealment of information and the subsequent likelihood the juror made an honest mistake; and (2) the materiality of the nondisclosure. This approach would more faithfully execute the dictates of the Sixth and Seventh Amendments by focusing on whether the juror in question was, in fact, impartial, rather than focusing almost exclusively on the question of dishonesty.

I. INTRODUCTION

Imagine you are on trial for armed robbery. Now imagine one of the jurors at your trial was previously a victim of an armed robbery. Rather than admit this fact when asked before the trial, this juror was inattentive, or for the purpose of this hypothetical, believed he could be impartial regardless of his past experience. (3) Had this fact come out during the questioning, almost every defense attorney would have immediately exercised a challenge to remove the juror. (4) Defense lawyers would fear that if this person were to serve, he would be predisposed to vote for the prosecution to convict you, the defendant. (5) Because of the juror's deception, however, no such challenge was ever made. Instead, the juror serves on the jury, becomes the foreperson, and signs a verdict to convict you.

At first glance, most people would think that this situation should present serious grounds for a new trial. After all, the right to an impartial jury is fundamental to the American justice system. (6) Enshrined in the Sixth (7) and essential to the Seventh Amendment, (8) impartial juries are a necessary precondition for due process. (9) However, the normal means litigants would use for ensuring the existence of an impartial jury--the pretrial process known as "voir dire" (10)--is fundamentally broken down in this instance because of the hypothetical juror's deception.

As the most important mechanism for ensuring a jury's impartiality, voir dire enables the parties to probe potential jurors from the jury pool (also known as a venire) for prejudices and unconscious biases. This is accomplished by having the presiding judge and the parties' attorneys ask members of the venire a variety of questions intended to reveal any of their conspicuous or inconspicuous biases, prejudices, or other extraneous influences that might affect their impartiality. (11) To comply with the Constitution, the jurors who are ultimately empanelled for trial must each maintain impartiality throughout the proceedings. (12) The presence of even one biased juror is not permitted under the Sixth Amendment: "The bias or prejudice of even a single juror would violate ... [the] right to a fair trial." (13)

Additionally, the importance of ensuring a fair and impartial jury has been recognized by the American Bar Association (ABA). In February 2005, the ABA House of Delegates approved 19 Principles for Juries and Jury Trials. (14) Principle 11 states that "[c]ourts should ensure that the process used to empanel jurors effectively serves the goal of assembling a fair and impartial jury." (15) In subsections 3 and 4 of Paragraph B under that principle, the ABA reaffirms the necessity of voir dire as an information-gathering proceeding:

3. Voir dire should be sufficient to disclose grounds for challenges for cause and to facilitate intelligent exercise of peremptory challenges.

4. Where there is reason to believe that jurors have been previously exposed to information about the case, or for other reasons are likely to have preconceptions concerning it, the parties should be given liberal opportunity to question jurors individually about the existence and extent of their knowledge and preconceptions. (16)

Hence, there is widespread agreement that effective voir dire is an essential aspect of a fair trial.

Nevertheless, as shown by the example of our hypothetical juror, veniremen must answer questions openly and honestly for voir dire to be effective. It is understandable that some prospective jurors could misinterpret a question, forget an incident that occurred long ago, or even stretch the truth in an effort to avoid potential embarrassment. Indeed, there are a number of different reasons for veniremen to either not answer a question asked during voir dire, or to not be wholly accurate during this process. (17) Although the truism that "there are no perfect trials" acknowledges these human limitations to our system, it is important to remember that the "touchstone of a fair trial is an impartial trier of fact--'a jury capable and willing to decide the case solely on the evidence before it.'" (18)

Regrettably, jurors' failures to be wholly honest or forthcoming are neither recent phenomenon nor a particularly unusual for the jury system. In 1965, Dale Broeder's study of 225 jurors after the conclusion of their trials found that juror dishonesty occurs for all sorts of reasons. (19) Numerous jurors failed to reveal their potentially prejudicial views or other pertinent information during voir dire. Some of them believed their prior experiences were too trivial to warrant completely honest answers. (20) Others experienced anxiety at the prospect of disclosing their personal information in the presence of strangers; (21) to avoid doing so, some simply did not want to tell the truth. (22) Still, others were motivated by the honor of public service, and thus, omitted experiences or beliefs that might have led to their dismissal. (23) As a result of his findings, Broeder concluded, "The message here is exceedingly clear: Voir dire was grossly ineffective not only in weeding out 'unfavorable' jurors but even in eliciting the data which would have shown particular jurors as very likely to prove 'unfavorable.'" (24) Additionally, more recent studies confirm Broeder's findings.

In 1978, Hans Zeisel and Shari Seidman Diamond studied the use of peremptory challenges in a Chicago federal district court. (25) The authors observed twelve trials where they had prospective, but challenged, jurors listen to all of the evidence presented. (26) Subsequently, Zeisel and Diamond inquired as to how each subject would have voted had they actually served on the jury. (27) From the information they gathered after conducting these pseudo-jurors' post-trial interviews, Zeisel and Diamond made a comparable conclusion to Broeder's: "[O]n the whole, the voir dire as conducted in these trials did not provide sufficient information for attorneys to identify prejudiced jurors." (28)

In another study, Richard Seltzer, Mark Venuti, and Grace Lopes monitored and recorded the voir dire process for thirty-one trials in a District of Columbia Superior Court. (29) They conducted 190 post-trial interviews with seated jurors to compare their responses in the interview to their responses to questions asked during voir dire. (30) The study found numerous discrepancies; for instance, during voir dire many jurors underreported the degree of their relationship to law enforcement. (31) At trial, about 16.3% of jurors admitted that either they or their close friends or relatives were police officers. (32) However, in the post-trial interviews, 39% of the jurors admitted to this same fact. (33)

Seltzer, Venuti, and Lopes also found that almost half of the jurors believed that, in some circumstances, if a defendant were to testify at his own trial he should have to prove his innocence. But these same jurors never stated this belief at voir dire. (34) Similarly, more than half of the jurors who had personally been victims of crime failed to divulge this information at voir dire. (35) Overall, the study found that a quarter of jurors fail to disclose material information during voir dire. (36)

In a related inquiry, some scholars have argued that juror inaccuracy is not due simply to jurors' overestimations of their cognitive ability to remain impartial. Rather, in courts that only allow voir dire questioning by the judge, (37) jurors proved far more apt to give answers they believed would gain the judge's approval:
   Even when prospective jurors are able to recognize their biases and
   disclose them, the judge may still elicit a false response that is
   more in line with the desirable answer. If a judge asks if the
   prospective juror could be impartial and the prospective juror
   replies no, the judge may continue that it is the juror's duty to
   follow the law and ask the question again. Prospective jurors may
   give in to the pressure to comply and say they can be impartial,
   even though their real feelings have not changed. (38)


Thus, the power differential that exists between judge and juror in limited voir dire creates a situation where counsel is especially unlikely to gain the information from the veniremen necessary to ensure an impartial jury. (39)

However, what should a court do when a juror's possible prejudices have been uncovered soon after a verdict is rendered? In addressing such an issue, the usual test to deal with these instances of post-trial juror misconduct (40) is the Supreme Court's decision in McDonough Power Equipment, Inc. v. Greenwood. (41) In that case, a plurality of the Justices (42) set forth the standard for federal courts to use when determining the point at which a juror's responses during jury selection might merit a new trial. (43)

McDonough was a civil case involving a child whose foot was cut by a lawn mower blade. (44) In response to a voir dire question about injuries to "you or a family member ... that resulted in any disability or prolonged pain or suffering," the juror at issue did not volunteer the fact that his son broke his leg when a fire exploded. (45) The Court noted that the juror apparently believed his son's injury did not fit into the category described in the question. (46) Consequently, the Court held that in order to obtain a new trial, "a party must first show 'that a juror failed to answer honestly a material question on voir dire,' and, if successful, then must demonstrate that 'a correct response would have provided a valid basis for a challenge for cause.'" (47)

Unfortunately, this subjective standard has failed to adequately deal with prejudiced jurors. The McDonough test has either been strictly interpreted so as to require an impossibly high degree of proof of juror misconduct, or in cases where such misconduct is evident, the courts will either "stretch[] the application of the McDonough standard ... by [a] doubtful interpretation of the facts." (48) With this tortuous test being applied retroactively, many scholars have attempted to deal with misleading jurors by proposing various structural changes to the pretrial process. (49) Some argue for changes that would incentivize veniremen to be more candid and honest in responding to the questions asked of them, (50) or through conducting voir dire in a more individualized manner so that the potential for juror embarrassment will be virtually nonexistent. (51)

Rather than propose another structural change to deal with this process's flaws, this Article attempts to deal with the dilemma of what to do with our hypothetical biased juror. It is likely that under the McDonough test, there would not be sufficient evidence to set aside a conviction in that case. If the hypothetical juror was simply daydreaming during questioning, he did not "fail to answer honestly." (52) Furthermore, even if it could be shown that the juror was dishonest, McDonough's second requirement places the additional burden on the moving party to "then further show that a correct response would have provided a valid basis for a challenge for cause." (53) The moving party must show this despite the fact that the juror was not "impartial and indifferent" (54) in the classic sense. (55)

To resolve this dilemma, this Article argues that courts should adopt a new standard for dealing with post-voir dire findings of juror misconduct: a two-part sliding-scale standard to evaluate jurors for bias. The factors that courts should consider are: (1) the circumstances surrounding a juror's concealment of information at voir dire and the subsequent likelihood that the juror made an honest mistake; and (2) the materiality of the nondisclosure. This standard could be used by courts at post-trial evidentiary hearings to examine alleged juror misconduct and bias.

This sliding-scale standard represents the best compromise between the various approaches advocated in McDonough. The current approach of either applying the literal language of McDonough, or using the concurrences in that case to bend the facts, is far too haphazard to accurately safeguard the protections of the Sixth and Seventh Amendments. As a result, the important interests of fairness and predictability inherent in these two amendments are being undermined. Part II of this Article reviews the history of biased jurors. Part Ill reviews the McDonough approach to juror misconduct as well as its negative effects. Finally, Part IV offers an alternative approach to dealing with discovering biased jurors post-voir dire.

II. HISTORY OF THE COURTS' EVALUATION OF JUROR BIAS

Before McDonough, the only available method for courts to evaluate jurors' partiality was through the doctrines of actual and implied bias. (56) These two doctrines asked whether a trier of fact should be allowed to hear a case despite possessing certain personal characteristics that might suggest that it would be difficult for the trier of fact to remain impartial. (57) Such characteristics could include having a financial stake in the case or pretrial knowledge of the facts, parties, or inadmissible external evidence. (58) However, these doctrines were only applicable in a limited number of circumstances, and courts eventually needed to create standards to be applied for lying (but not necessarily biased) jurors.

A. THE DOCTRINES OF ACTUAL AND IMPLIED BIAS

In the past, the only impartiality inquiries undertaken were encapsulated by the doctrines of actual and implied bias by courts. The Supreme Court has explained that "[t]he bias of a prospective juror may be actual or implied; that is, it may be bias in fact or bias conclusively presumed as [a] matter of law." (59) The use of these doctrines often occurs in similar circumstances to their hypothetical untruthful juror. (60) The main difference from McDonough is that these doctrines require a party to meet a much higher burden of proof before a court will remove the juror in question or grant a new trial. (61)

Ascertaining actual bias requires a court to investigate whether, from a subjective viewpoint, a juror is directly prejudiced against the moving party. This inquiry "normally turns on the only possible evidence of a juror's psychological state--the juror's own admission or denial of bias. The juror's testimony renders irrelevant indirect evidence of prejudice, such as a juror's relation to a party." (62) Thus, to establish such a state of mind, a moving party claiming that a juror was actually biased must ask questions "on the alleged source of bias during voir dire, and [this will establish] direct rather than circumstantial proof of the juror's alleged bias." (63) These answers from voir dire can then be compared to the juror's answers at a post-trial evidentiary hearing. However, since the only type of evidence that can meet this standard is a juror's own admission, actual bias is rarely found.

The doctrine of implied or presumed bias is more complex than its sibling. The Court has defined implied bias as "a bias attributable in law to a prospective juror regardless of actual partiality." (64) For instance, implied bias exists if a juror has a financial stake in the outcome of the case, or is a family member of one of the parties. (65) After making such a showing, the moving party is automatically entitled to a presumption that the juror was biased, with the burden of proof essentially being the reverse of the actual bias evidentiary threshold. (66) Nevertheless, there must be some established fact about a juror from which a court could justifiably presume bias. (67)

Because of this shifted burden onto the non-moving party, courts are reluctant to apply the implied bias doctrine and grant a new trial--loathe to overturning a jury's verdict. (68) Thus, the implied bias doctrine is applied in only the rarest and most extreme circumstances. (69) For instance, in Tumey v. Ohio, the Court recognized that a judge having a financial stake in the outcome of a case should disqualify himself despite the judge's personal estimations of his ability to remain impartial. (70) In a similar vein, judges may not preside over both a grand jury proceeding and the defendant's trial, as the judge's interest in preserving her professional reputation might call her impartiality into question. (71)

With jurors the number of circumstances where bias will be presumed are equally sparse. The Court has held that former jurors from a defendant's previous trial should be automatically disqualified from serving. (72) But in United States v. Wood, the Court held that bias should not be presumed in a criminal trial where the juror was a federal government employee, except inf special circumstances. (73) This was also the ruling in a case involving contempt for failing to appear before the House Un-American Activities Committee, when a juror was an employee who had previously taken a Presidential Loyalty Oath. (74) Similarly, in Smith v. Phillips, the Court ruled that bias should not be imputed to a juror in a criminal trial who applied for a job with the prosecutor's office during the middle of that trial. (75) Nevertheless, courts generally can presume bias when a juror has experienced exceptionally similar circumstances to the case at issue: "Thus, courts have presumed bias in cases where the prospective juror has been the victim of a crime or has experienced a situation similar to the one at issue in the trial." (76)

Except for McDonough in 1984, the Supreme Court has only examined a juror's concealment of information at voir dire once under these two doctrines. This occasion was fifty years before McDonough in Clark v. United States. (77) In that case, a juror had deliberately concealed information during voir dire that she knew would have led to a successful challenge for cause to be made against her. (78) The juror was found guilty of criminal contempt for obstructing justice when she knowingly gave misleading or false responses to questions asked of her during voir dire. (79) The case to prove that she was actually biased, however, could only be made using testimony about the jury deliberations. (80) Even though there was a strong competing interest to preserve the privacy of jury deliberations, (81) Justice Cardozo's opinion for the Court ruled that admitting testimony of the juror's conduct during jury deliberations would not impair any lawful privilege in light of the fraudulent conduct she committed against the court. (82)

What made Clark different from other cases of post-trial discovery of juror concealment is the sweeping language used by the Court to diminish the defendant's role as a juror. Accordingly, the Court explained:
   The judge who examines on the voir dire is engaged in the process
   of organizing the court. If the answers to the questions are
   willfully evasive or knowingly untrue, the talesman, when accepted,
   is a juror in name only. His relation to the court and to the
   parties is tainted in its origin; it is a mere pretense and sham.
   What was sought to be attained was the choice of an impartial
   arbiter. What happened was the intrusion of a partisan defender. If
   a kinsman of one of the litigants had gone into the jury room
   disguised as the complaisant juror, the effect would have been no
   different. The doom of mere sterility was on the trial from the
   beginning. (83)


Justice Cardozo's use of such language harkens back to the previously cited studies that show how a juror's lack of candor can devastate any attempt at a fair and impartial trial. (84) Consequently, the Clark opinion stands for the proposition that a venireman's concealment of material information at voir dire can be a significant factor in a post-trial assessment of juror impartiality. In other words, "[b]ias is to be gathered from the disingenuous concealment which kept [the juror] in the box." (85)

B. THE DISARRAY OF THE LAW OF JUROR NONDISCLOSURE BEFORE MCDONOUGH

In the absence of any clear Supreme Court guidance, federal courts developed different standards to deal with the post-verdict discovery of juror nondisclosure at voir dire. In an abundance of caution, some circuits required new trials even when the potentiality of juror impartiality was relatively small, or when the juror's mistake or failure to respond was wholly inadvertent. Other circuits took a different approach in which bias would not be so easily presumed.

A good example of a district sensitive to juror nondisclosure was the Tenth Circuit's earlier decision in McDonough itself. (86) As previously mentioned, the juror in question did not regard his son's prior leg injury with the exploding fire as particularly serious. (87) Nevertheless, the Tenth Circuit believed that the juror's view of seriousness indicated he was more than likely already prejudiced: "The unrevealed information indicated probable bias of juror Payton because it revealed a particularly narrow concept of what constitutes a serious injury." (88) Indeed, the court believed that even if the juror's failure to fully disclose his son's injury had been in good faith, questioning whether the juror was impartial would be extraneous. (89) Consequently, the Tenth Circuit attempted to craft a more objective "average juror" standard for gauging such instances of juror nondisclosure for bias: "If an average prospective juror would have disclosed the information, and that information would have been significant and cogent evidence of the juror's probable bias, a new trial is required to rectify the failure to disclose it." (90)

The Tenth Circuit's "average juror" approach protected the litigants' rights to fully informed peremptory challenges. (91) Although this standard was effective in protecting the Sixth and Seventh Amendments, it could also be seen as somewhat wasteful in light of the costs of the previous, and relatively lengthy, trial. If all a losing litigant would need to obtain a new trial was a silent non-average juror, then many litigants and courts would be at risk of much higher litigation costs. (92) This is despite the substantial investment of the original voir dire and trial: "A trial represents an important investment of private and social resources, and it ill serves the important end of finality to wipe the slate clean simply ... because counsel lacked an item of information which objectively he should have obtained from a juror on voir dire examination." (93) Accordingly, the "average juror" test created by the Tenth Circuit was not the only standard used by federal courts to remedy juror concealment at voir dire.

Another approach to voir dire nondisclosure was an extended use of the implied bias doctrine by the Sixth Circuit in McCoy v. Goldston. (94) That case involved a suit against a police officer for allegedly violating the plaintiff's Fourth Amendment rights by shooting him in order to arrest him. (95) After the jury found for the defendant police officer, the plaintiff's attorney obtained permission by the court to interview three of the jurors. (96) In the course of conducting these post-trial interviews, the plaintiff learned the foreperson's son was training to be a parole officer. (97) At voir dire, however, this juror was silent when asked whether any member of the venire "had any close friends or relatives who are connected or associated with any law enforcement agency or police department?" (98) Rather than conducting any further investigation on this juror, the trial court denied both a new trial and a post-trial evidentiary hearing. (99)

In light of these facts, the Sixth Circuit reversed the trial court and concluded that even if the foreperson's relations would not have given rise to a legal basis for a challenge for cause, they should have been "available [for] the intelligent use of the peremptory challenge." (100) The court the court held a new trial should be granted when the juror's concealed information would have actually caused her to be disqualified. (101) Furthermore, the court addressed juror dishonesty by ruling that "a district judge shall presume bias, and grant a new trial, when a juror deliberately concealed information or gave a purposefully incorrect answer." (102)

In this particular instance, the court believed that even though most people would not normally associate a parole officer with traditional law enforcement, an abundance of caution was necessary to comply with the Seventh Amendment. (103) And because another venireman was peremptorily challenged after he revealed his prior service as a substitute corrections officer, the Sixth Circuit concluded that the foreperson was actively attempting to conceal her relations in order to become a member of the jury. (104) This assessment was supported when another juror (the original source of the relationship between the foreperson and her son) quickly attempted to correct himself in front of the plaintiff's attorney with: "Oh, I shouldn't have told you that, should I have?" (105) On the basis of such evidence, the court concluded the foreperson's pattern of concealment indicated an instance where bias should be implied, and remanded for a hearing to resolve these issues. (106)

These two cases essentially weighed the competing costs of finality and fairness, and adopted approaches where the right to an impartial jury would take supremacy over the competing transaction costs of a new trial. Nevertheless, such standards could also "encourage[] losing attorneys to place jurors on trial, and they unduly undermined the finality of judgments." (107) It was in this context, and with these fears in mind, that the Supreme Court decided to address the issue of juror nondisclosure at voir dire in McDonough.

III. WHAT MCDONOUGH ATTEMPTED TO ACCOMPLISH, AND ITS NEGATIVE EFFECTS

Before discussing McDonough, it is important to remember that despite the justices numerical unanimity, the opinions of this case have been interpreted in multiple ways by various federal courts. (108) Much of the confusion is understandable in light of the three very different opinions offered by the justices. Even though there was unanimous agreement to reverse the Tenth Circuit's granting of a new trial, the Court remanded for an evidentiary hearing to be held on the juror's possible prejudices. (109) Nevertheless, the standard to be applied at that post-trial hearing is ultimately where the justices split into three distinct camps.

The majority opinion by then- Justice Rehnquist, (110) argued that the right of intelligent use of peremptory challenges is not constitutional in nature, and therefore, that the deprivation of such a right would not justify a new trial in light of its costs to the judicial system and the litigants. (111) Instead of adopting the Tenth Circuit's "average juror" approach, (112) or the Sixth Circuit's approach of allowing presumed bias to be imputed to the concealing juror, (113) the opinion holds that the moving party must prove actual prejudice to obtain a new trial. (114) Such prejudice would be "defined as information that would have provided a valid basis for a cause challenge had it been known at the time of voir dire." (115) Furthermore, the juror in question must have purposefully withheld this important information. (116)

Justice Rehnquist's opinion attempts to take away the power of appellate courts over the jurors-in-question by adopting a purely subjective standard to determine their intentional omissions or falsehoods. (117) In this sense, not only was Justice Rehnquist undoing the reasoning of the Tenth Circuit, (118) he was creating an additional burden for acquiring a completely impartial panel of jurors. (119) That is, "he would require both juror misconduct and juror bias before granting a new trial." (120) Even if a juror was partial toward the moving party, that would not be enough to satisfy Justice Rehnquist's standard. Consequently, the hypothetical-juror scenario presented at the beginning of this Article would present no constitutional problems for Justice Rehnquist if the juror's mistake was accidental or a misunderstanding.

With Justices Stevens and O'Connor joining him, Justice Blackmun wrote a concurring opinion. Rather than go as far as Justice Rehnquist with the subjectivity approach, Justice Blackmun refused to hold that a juror's non-disclosure must always be intentional to merit a new trial to be granted. (121) For Justice Blackmun, "the honesty or dishonesty of a juror's response is the best initial indicator of whether the juror in fact was impartial," but it might not be the only indicator. (122) Hence, Justice Blackmun's standard would not always need a finding of juror misconduct for a new trial to be granted. Rather, Justice Blackmun's opinion focuses on the potential that the juror was actually biased. (123) Furthermore, he supplemented this standard by admitting that in certain circumstances, actual bias should not have to be proven, but that it might be presumed by unusually extreme facts. (124)

Finally, Justice Brennan, joined by Justice Marshall, concurred in the judgment. Under Justice Brennan's standard, the juror's intent is merely one factor among many others for a court to consider in gauging impartiality. (125) Similar to Justice Blackmun, Justice Brennan would not require a finding of any additional juror misconduct or subjective dishonesty before granting a new trial. (126) However, unlike Justice Blackmun, Justice Brennan's opinion suggests that courts should more readily presume bias when the corresponding facts developed at the post-trial evidentiary hearing reasonably support such an inference. (127) Indeed, Justice Brennan notes that because "the bias of a juror will rarely be admitted by the juror himself," it is perfectly reasonable for a trial judge to assess other evidence of bias in light of the surrounding circumstances at voir dire. (128)

In response to the splintered decision in McDonough, certain fundamental questions of interpretation remain undecided. For example, the question of whether to adopt a more subjective or objective approach has not yet been conclusively established by many circuits. Even though Justice Rehnquist's plurality opinion raises the assumption that a subjective "personal honesty" approach should be followed by trial judges, some circuit courts have sided with the five concurring justices in taking a more realistic or objective approach to juror bias and misconduct. (129) Many state courts have reached a similar conclusion that both intentional and unintentional lies may violate McDonough. (130)

This confusion has left a vast ambiguity in Sixth and Seventh Amendment jurisprudence that needs to be clarified. The most troubling aspect of applying McDonough is that a trial judge wanting to quickly clear her docket might decide to adopt Justice Rehnquist's more exacting subjective approach, whereas another judge might decide that Justice Blackmun's or Justice Brennan's concurrences should carry more weight. Part IV addresses such a concern by proposing a more reasonable and consistent position: creating a standard that focuses mostly on a juror's actual impartiality, but acknowledging that the circumstances and materiality of the nondisclosure are the best indicators in evaluating whether the juror is, in fact, impartial.

IV. FASHIONING A NEW STANDARD: AN OBJECTIVE SLIDING-SCALE ANALYSIS OF BIAS

In developing a new standard for post-voir dire evaluations of juror bias, it is important to be mindful of the competing interests involved. Indeed, it is impossible to develop a standard without balancing the opposing aims of fairness and finality. (131) Although the current approach from McDonough rests on such a compromise as well, (132) its splintered majority was unable to allocate these objectives with appropriate specificity. Adopting a new approach would only be justified if the gains to fairness could overcome the deficiencies of McDonough's plurality opinion's subjective approach.

While having a more bright-line approach that focuses on a juror's state of mind might provide an advantage for trial judges aiming to clear their docket, having a losing litigant denied one of his fundamental rights is also a high price to pay for the benefits of judicial efficiency. (133) Therefore, courts should adopt a two-part sliding-scale standard to evaluate jurors for bias. The factors for courts to consider are: (1) the circumstances surrounding a juror's concealment of information at voir dire and the subsequent likelihood that the juror made an honest mistake; and (2) the materiality of the nondisclosure. This standard could be utilized by courts at post-trial evidentiary hearings to examine for jurors for bias. Although there should be a rebuttable presumption against granting a new trial, this standard is the best compromise between the subjective and objective approaches advocated by the three various camps of justices in McDonough.

A. THE PROBLEM OF FOCUSING SOLELY ON A JUROR'S STATE OF MIND

The most disturbing aspect of the confusion created in the wake of McDonough is the hypothetical juror example discussed at the beginning of this Article. (134) Even though this juror's prior victimization makes it very likely that he would be biased against the defendant, there could be no recourse under MeDonough as long as the juror did not purposefully conceal his impartiality. Although others have defended Justice Rehnquist's use of intentional concealment as a limiting device for appeals and post-trial juror harassment, (135) that use has an extremely high cost if the Sixth Amendment's language of "impartiality" has been effectively undermined for the criminal defendant. (136)

Moreover, in the context of a trial, it is overwhelmingly unlikely that a losing litigant will be satisfied if an inadvertently-biased juror sits on the jury and decides the case. (137) In a certain respect, it is understandable that mistakes at voir dire can and will occur, (138) but if they are quickly brought to the attention of the courts and dealt with at a post-trial hearing, it is unclear why an abridgment of the Sixth or Seventh Amendment should not be treated as important as violating the First Amendment. This is certainly the case in the criminal context, where the defendant's liberty, or even his life, might be placed in jeopardy. (139) Even in civil cases, it remains crucial for jurors to remain unbiased for a fair trial to occur. (140)

Since studies have shown that jurors might have innumerable reasons to want a seat on a jury, (141) it is plain that focusing solely on intentional juror dishonesty would not be the most appropriate rubric to decide whether a juror was biased and sat on the jury. Rather, the more important question is whether a reasonable inference could be drawn that the juror was, in fact, biased. (142) On this point, both Justices Blackmun and Brennan seem to be in agreement. (143) Furthermore, both justices' opinions imply there are other facts which could be considered by judges when evaluating juror prejudice. (144) Thus, juror dishonesty is not a wholly irrelevant factor for courts to consider, but evaluating honesty through the lens of a reasonable or "average juror" seems more appropriate than requiring the moving litigant to overcome the nearly impossible hurdle of demonstrating proof of actual bias. (145)

To this end of ferreting out biased jurors at a post-trial hearing, it would be far more effective for courts to examine all of the circumstances surrounding a juror's concealment of information at voir dire. The greater emphasis on objectivity found within Justices Blackmun's and Brennan's concurrences lend support for a more "average juror" analysis of the juror's dishonesty. (146) This test would measure the reasonability of a venireman's excuse for his nondisclosure or concealment about his past. On the one hand, in cases where a juror failed to disclose something very similar to answers provided by other veniremen to a particular question, that might raise the probability that the juror was trying to conceal his questionable past, and was therefore dishonest in his nondisclosure. On the other hand, there might be very good reasons to explain a juror's mistaken nondisclosure. (147) Through this lens, and once a court examines all of the surrounding circumstances of the juror's nondisclosure, (148) courts would be better off in evaluating the likelihood that the juror made an honest mistake. Balancing this probability with the materiality of the nondisclosure is the next step in the proposed standard.

B. THE BENEFIT OF ASSESSING THE MATERIALITY OF THE NONDISCLOSURE

The second part of this proposed sliding-scale standard is similar to McDonough's "challenge-for-cause" prong, (149) but should again be viewed through an objective lens of the surrounding circumstances of the case. Originally, the challenge-for-cause prong of Justice Rehnquist's McDonough opinion was meant as a hurdle for the moving party to overcome in addition to, and distinct from, the dishonesty prong. (150) Nevertheless, it is usually the case that where a court believes the juror's nondisclosure or concealment was intentional, the court will collapse this second challenge-for-cause prong into the initial inquiry for dishonesty and misconduct. (151)

Such courts might very well point to the language of Justice Blackmun's concurrence acknowledging how the McDonough plurality opinion's prongs will usually have a great deal of overlap: "In most cases, the honesty or dishonesty of a juror's response is the best initial indicator of whether the juror in fact was impartial." (152) Acknowledging this reality, this Article's proposed standard accepts that the juror's incorrect response, or lack of any response in some cases, must be related to the alleged reasons for that juror's partiality. Hence, the second part of this Article's sliding-scale analysis focuses on the materiality of the juror's nondisclosure to the facts of the case and how they relate to the juror's alleged bias.

Under this second part, courts should focus solely on the degree to which the juror's nondisclosure relates to the material issues or facts of the case. For instance, if a juror failed to disclose that she was a rape victim in a trial for rape, the materiality of such concealment would be so high that many courts should then presume bias. (153) However, there are many circumstances where a juror's nondisclosure will not be so material or directly related to the issues at trial. The McDonough juror could have reasonably believed that his son's injury did not give rise to a serious products-liability injury, (154) but the materiality of such a products-liability injury would be the main inquiry of this part. Thus, a judge at a post-trial hearing should account for the level of factual and temporal similarity between the juror's nondisclosure and the circumstances of the case at issue.

This sort of materiality assessment would benefit courts by providing a much more predictable standard than the current confusion caused by the splintered camps from McDonough. At post-trial hearings, litigants and judges will be able to objectively assess whether a good case could be made that (1) the circumstances surrounding the nondisclosure or concealment and (2) the degree of similarities between the nondisclosure and the facts or issues of the case, make it likely that the juror was trying to defraud the court and sneak onto the jury. Combined with this benefit of greater predictability, this standard is more focused on the probability that the juror's nondisclosure is actual evidence of bias in the facts of the case. That is to say, if there is a high probability that a juror's nondisclosure was dishonest, a reasonable inference could be drawn that the juror was attempting to hide something that would indicate one of his prejudices. (155) Concomitantly, if the undisclosed information was directly related to the issues at trial, that also might indicate a likelihood of juror bias (perhaps even without juror dishonesty). A balancing of these two factors would usually produce a fairer result than would the McDonough plurality's more narrow inquiry of juror dishonesty and misconduct. (156)

C. APPLICATIONS TO PAST INSTANCES OF JUROR NONDISCLOSURE

The final step toward explaining this sliding-scale standard would be applying it to past cases of juror nondisclosure. Obviously, not all forgotten instances of past victimization or familiarity with the facts of the case should lead to the trial being overturned. (157) In certain circumstances, the materiality of the nondisclosure will be tangential. On the one hand, if a juror was simply embarrassed about some peripheral matter, that alone would not be enough to call for a new trial. On the other hand, if a juror's nondisclosure relates directly to issues of the case, the probability that the juror's nondisclosure was simply an innocent mistake decreases, and would fail the sliding scale analysis. Analogously, if the context of the voir dire indicates that a reasonable juror would have noticed that their prior similar experiences could lead to a successful challenge for cause, then the likelihood that the juror's incorrect response at voir dire was dishonest could increase so as to fail the sliding-scale analysis.

Gonzales v. Thomas presents the distinction between the current McDonough test and this Article's sliding-scale standard with regard to the context of the nondisclosure. (158) That case presented a situation where a defendant filed a federal habeas petition after he was convicted in state court for criminal sexual penetration. (159) After his conviction, the defendant discovered that one juror had been a rape victim and discussed her experiences during deliberation. (160) The Tenth Circuit Court of Appeals held that the district court did not err in concluding that the juror harbored no actual bias because the defendant had not demonstrated any actual dishonesty by the juror at voir dire. (161)

The circumstances of the voir dire made the question of the juror's impartiality more dubious because the trial judge had excused a previous prospective juror for cause for having "an experience with her own family of [a] similar type[] of case[]." (162) Nevertheless, the court accepted the juror's testimony that she could not recall being asked whether she was involved in any similar incident. (163) Furthermore, the juror testified that had she been asked this question, she would have given the same response that she did at trial:
   I think the circumstances of the events of my past that I was
   referring to [were] very different from the circumstances that were
   represented in the case that we were hearing. The similarity was
   that alcohol was involved. The dissimilarities were that there was
   no weapon, I had willingly gone out with this person on a date. I
   had not had this person intrude into my home. I had no children who
   were present or who were involved at the time. The events were
   something that I would avoid in the future, but it was not
   something that traumatized my life. (164)


The Tenth Circuit accepted the trial judge's factual findings that there were enough distinguishing characteristics between the issues at trial and the juror's explanation of her prior experiences to find that she had not been dishonest during voir dire. (165) Even though there were some superficial similarities between the juror's experience and the incident for which the defendant was tried, and the context of the juror's voir dire response might have indicated that she wanted to serve on the jury, the court was not convinced that the juror's answers were dishonest or that she was impliedly biased as a matter of law. (166)

Under the advocated sliding-scale approach, however, the context and materiality of the juror's incorrect response during voir dire would have been enough to warrant a new trial. Admittedly, the materiality factor is somewhat mixed, as the juror was able to explain how her previous victimization was factually dissimilar from that presented at trial. Nevertheless, the context surrounding her incorrect response indicates a greater likelihood of partiality. The key contextual factor for a court to consider under this prong of the sliding-scale analysis would have been how the trial judge had previously announced during voir dire that he would dismiss a juror "who has an experience with ... similar types of cases." (167) After such a pronouncement by the judge, a reasonable juror would have been put on notice that any prior experiences with a similar criminal charge could lead to a successful challenge for cause and possible disqualification. Hence, a juror's failure to answer that she had once been a victim of a rape would, in that case, begin to look too suspicious for the purposes of the Sixth Amendment.

In a similar vein, Amirault v. Fair presents the distinction between the current McDonough test and this Article's sliding-scale standard with regard to the materiality of the nondisclosure. (168) In that case, a criminal defendant's habeas petition challenged his state court conviction for raping a child. One juror at his trial failed to disclose that she had been a rape victim forty years earlier as a child. (169) Applying the McDonough test, the First Circuit accepted the district court's findings that the juror's blocked memory of an unrelated forty-year-old rape was not dishonest, and did not rise to the level of an exceptional or extreme circumstance that permitted a finding of implied bias. (170)

Under the McDonough test, once a court accepts the juror's explanation that she had no memory of her rape as a child, the Sixth Amendment analysis is essentially over. But it is impossible to believe that such an experience would not have affected the juror's ability to remain impartial. (171) Under the proposed sliding-scale approach, the materiality of this nondisclosure would be so great that, from an objective perspective, most reasonable persons would not believe that the juror in question could actually be impartial for the purposes of the Sixth Amendment or due process.

V. CONCLUSION

After reviewing many of the studies about juror nondisclosure or concealment at voir dire, it is apparent that courts must have appropriate tools to effectively deal with the possibility of juror bias. The older tests for actual or implied bias are not adequate to deal with the more common, marginal cases of juror misconduct during voir dire. Rather than clarifying the situation with these marginal cases, the more disjoined opinions from McDonough have only served to confuse lower courts and exacerbate the systemic problems threatening fairness. A sliding- scale standard that balances the circumstances surrounding a juror's concealment of information at voir dire and the materiality of that nondisclosure to the facts or issues of the case should be used instead. Such a standard would have the positive effect of allowing courts to more honestly and fairly apply McDonough. Additionally, such an approach would create more predictability in courts' application of the law of juror bias. Finally, this approach would focus on whether the juror in question was, in fact, impartial, rather than focusing almost exclusively on the question of dishonesty.

JOSHUA S. PRESS, J.D., Northwestern University School of Law, 2008; B.A., Emory University, 2004. Thanks to Professors Shari Seidman Diamond and Barry T. McNamara for their teachings and helpful suggestions. I especially want to thank Laura Cullison for initially assigning me to research this topic.

(1.) Letter from John Adams to Elbridge Gerry (Dec. 5, 1777), in THE FOUNDER'S ALMANAC 167 (Matthew Spalding ed., 2002). The phrase derives from the Latin maxim: "Fiat justitia, ruat coelum." CHARLES SUMNER, 3 THE WORKS OF CHARLES SUMNER 507 (1875).

(2.) Robert G. Loewy, Note, When Jurors Lie: Differing Standards for New Trials, 22 AM. J. CRIM. L. 733, 739-40 (1995).

(3.) See, e.g., Shari Seidman Diamond et al., Realistic Responses to the Limitations of Batson v. Kentucky, 7 CORNELL J.L. & PUB. POL'Y 77, 92-93 (1997) (describing how jurors might overestimate or underestimate their attitudes or prejudices).

(4.) See id. In this case, this could be done with either a challenge for cause or a peremptory challenge. Challenges for cause are unlimited, and a judge has broad discretion to dismiss for cause any juror believed to be biased or unqualified. See Mu'Min v. Virginia, 500 U.S. 415, 416, 425 (1991); Smith v. Phillips, 455 U.S. 209, 218 (1982); Dennis v. United States, 339 U.S. 162, 168 (1950). Usually, judges will ask jurors whom they suspect to be biased, whether they would be able to put such external influences aside and be fair. Judges may then give weight to the challenged juror's assurances of fairness. See, e.g., Murphy v. Florida, 421 U.S. 794, 800 (1975). Peremptory challenges are limited in number, but may be used for almost any reason that counsel might have. Mark Hurwitz, Note, Peremptory Challenges and National Origin. Watson v. Ricks, 29 JUST. SYS. J. 210, 210 (2008). But see Powers v. Ohio, 499 U.S. 400 (1991) (holding that racial discrimination in the selection of jurors, through the use of peremptory challenges, violates the Equal Protection Clause); Batson v. Kentucky, 476 U.S. 79 (1986) (holding that racial discrimination in the selection of jurors, through the use of peremptory challenges, violates the Equal Protection Clause).

(5.) See Scott E. Culhane, Harmon M. Hosch & William G. Weaver, Crime Victims Serving as Jurors: Is There Bias Present?, 28 LAW & HUM. BEHAV. 649, 657 (2004). In fact, there have been studies that have confirmed this courtroom intuition (albeit weakly): "[O]ur data do suggest that when potential jurors have been victims of a crime similar to the one for which a defendant is being tried, particularly when they have had multiple exposures to similar crimes, their neutrality is questionable." Id. See also Martin F. Kaplan & Lynn E. Miller, Effects of Jurors' Identification with the Victim Depend on Likelihood of Victimization, 2 LAW & HUM. BEHAV. 353, 358-61(1978).

(6.) Eva Kerr, Prejudice, Procedure, and a Proper Presumption: Restoring the Remmer Presumption of Prejudice in Order to Protect Criminal Defendants" Sixth Amendment Rights, 93 IOWA L. REV. 1451, 1453 (2008). The right can be traced back to 1215 from the Magna Carta: "No freeman shall be taken, imprisoned, disseised, outlawed, banished, or in any other way destroyed, nor will we proceed against or prosecute him, except by the lawful judgment of his peers, or by the law of the land." MAGNA CARTA, ch. 39, reprinted in A.E. DICK HOWARD, MAGNA CARTA: TEXT & COMMENTARY 45 (rev. ed. 1998).

(7.) U.S. CONST. amend. VI, cl. 1 ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed...."). The Sixth Amendment's fight to an impartial jury was extended to the states in Duncan v. Louisiana where the Sixth Amendment's impartiality requirement was incorporated onto the states through the Fourteenth Amendment's Due Process Clause, as it was found to be a fundamental requirement throughout Anglo-American legal history. Duncan v. Louisiana, 391 U.S. 145, 149 (1968).

(8.) U.S. CONST. amend. VII ("In Suits at common law, where the value in controversy shall exceed twenty dollars, the fight of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."). Although it is true that there is no explicit guarantee for an impartial jury within the Seventh Amendment, such a requirement has been found to exist under the guarantees of due process. See Haley v. Blue Ridge Transfer Co., 802 F.2d 1532, 1535 n.4 (4th Cir. 1986) (affirming that the right to an impartial jury in a civil case is implicitly guaranteed by the Fifth and Seventh Amendments); Kiernan v. Van Schaik, 347 F.2d 775, 778 (3d Cir. 1965); Charles W. Wolfram, The Constitutional History of the Seventh Amendment, 57 MINN. L. REV. 639 (1973).

(9.) See Ristaino v. Ross, 424 U.S. 589, 595 n.6 (1976) (concluding that the right to an impartial jury is guaranteed by both the incorporation of the Sixth Amendment into the Fourteenth Amendment, as well as fundamental principles of due process itself); Peters v. Kiff, 407 U.S. 493, 501 (1972).

(10.) The term "voir dire" has been most often translated from the French for "see [them] talk," but actually means "true talk," deriving from the Latin verus for "true." See WEBSTER'S THIRD NEW INT'L DICTIONARY 2562 (1961); Hans Zeisel & Shari Seidman Diamond, The Effect of Peremptory Challenges on Jury and Verdict: An Experiment in a Federal District Court, 30 STAN. L. REV. 491, 491 n.1 (1978).

(11.) See V. HALE STARR & MARK MCCORMICK, JURY SELECTION: AN ATTORNEY'S GUIDE TO JURY LAW AND METHODS 39-40 (1985) (describing how, at the time, only 25% of federal judges permitted oral participation of counsel in the voir dire examination of jurors); GREGORY E. MIZE, PAULA HANNAFORD-AGOR & NICOLE L. WATERS, NAT'L CTR. FOR STATE COURTS, THE STATE-OF-THE-STATES SURVEY OF JURY IMPROVEMENT EFFORTS: A COMPENDIUM REPORT 27-31 (2007), available at http://www.ncsconline.org/D_Research/cjs/pdf/SOSCompen.diumFinal.pdf (noting that nine states conduct voir dire through the judge alone, while eighteen states have the judge and attorneys conduct voir dire equally, and twenty-three states have the attorneys either predominantly or exclusively conduct the voir dire examinations). The prevalence of limited voir dire can be explained by a perceived need for greater efficiency. See William H. Levit et al., Expediting Voir Dire: An Empirical Study, 44 S. CAL. L. REV. 916, 949 (1971); Note, Judge Conducted Voir Dire as a Time-Saving Trial Technique, 2 RUTGERS-CAM. L.J. 161, 183-84 (1970).

(12.) Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir. 1998) (en banc).

(13.) Id. See also Tinsley v. Borg, 895 F.2d 520, 523-24 (9th Cir. 1990); United States v. Aguon, 813 F.2d 1413, 1421 (9th Cir. 1987) ("The presence of even a single partial juror violates a defendant's right under the Sixth Amendment to trial by an impartial jury."), aff'd in part and rev'd in part, 851 F.2d 1158, 1170 (9th Cir. 1988) (en banc).

(14.) SECTION OF STATE AND LOCAL GOVERNMENT LAW, COMM'N ON THE AMERICAN JURY PROJECT- JUDICIAL DIVISION, REPORT TO THE HOUSE OF DELEGATES 1 (2008).

(15.) AMERICAN BAR ASS'N, PRINCIPLES FOR JURIES AND JURY TRIALS 67 (2005), available at http://www.abanet.org/juryprojectstandards/principles.pdf.

(16.) Id. at 67-68.

(17.) See generally Dale W. Broeder, Voir Dire Examinations: An Empirical Study, 38 S. CAL. L. REV. 503 (1965) (providing a detailed layout of the mechanics of voir dire).

(18.) McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 553-54 (1984) (quoting Smith v. Phillips, 455 U.S. 209, 217 (1982) (emphasis added)).

(19.) See Broeder, supra note 17, at 503.

(20.) See id. at 513.

(21.) See id. at 511.

(22.) See id.

(23.) See id

(24.) Broeder, supra note 17, at 505.

(25.) Zeisel & Diamond, supra note 10, at 491, 491-92. It should be remembered that this study was based on federal trials where the judge, as opposed to the attorneys, conducted a limited voir dire. Id. at 495-98.

(26.) See id. at 498.

(27.) See id. at 500.

(28.) See id. at 528.

(29.) Richard Seltzer et al., Juror Honesty During the Voir Dire, 19 J. CRIM. JUST. 451, 451 (1991).

(30.) See id. at 453.

(31.) See id. at 456.

(32.) See id.

(33.) See id.

(34.) See id. at 457-58 (reporting 49.4% of the interviewed-jurors making this admission); see also Cathy Johnson & Craig Haney, Felony Voir Dire: An Exploratory Study of Its Content and Effect, 18 LAW & HUM. BEHAV. 487, 498-99 (1994) (noting that some jurors served at criminal trials disagreed with the presumption of innocence, and that other jurors had been unable to put aside their personal biases during trial). But cf. In re Winship, 397 U.S. 358, 364 (1970) (acknowledging that there should be a presumption of innocence--a bias in favor of the accused). It is unconstitutional for jurors to create a presumption of guilt--shifting the burden of proof onto the accused. See Sandstrom v. Montana, 442 U.S. 510, 510 (1979).

(35.) See Seltzer, supra note 29, at 456 (reporting 52% of the interviewed jurors did not come forward about their past victimhood).

(36.) See id. at 455 (finding 24.7% of participating jurors revealed in post-trial interviews that either they or a close family member of theirs had been victims of crime never offered that same information during pretrial voir dire).

(37.) See FED. R. CRIM. P. 24. This sort of "limited voir dire" is followed by most federal courts. Id.

(38.) Valerie P. Hans & Alayna Jehle, Avoid Bald Men and People With Green Socks? Other Ways to Improve the Voir Dire Process In Jury Selection, 78 CHI.-KENT L. REV. 1179, 1194 (2003). See also Susan E. Jones, Judge- Versus Attorney-Conducted Voir Dire, 11 LAW & HUM. BEHAV. 131, 143 (1987) (showing that jurors altered their attitudes even more when questioned by a judge, rather than by attorneys). Cf Stanley Milgram, Behavioral Study of Obedience, 67 J. ABNORMAL Soc. PSYCHOL. 371 (1963) (measuring the degree to which participants in an experiment would obey an authority figure instructing them to perform acts (in this instance, administering dangerous electric shocks to others believed to be in poor health) that were in conflict with their consciences).

(39.) Cf. United States v. Sloan, 492 F.3d 884, 892 (7th Cir. 2007) An example of such a phenomenon is as follows:
   ... Juror Propes informed the district court and the parties that
   he might have a conflict of interest because of the use of the term
   "Christian" in the case and his role as a deacon in his church. In
   response, the district court stated its opinion to Juror Propes
   that issues of Christianity were tangential to the issues in the
   case. The district court then asked Juror Propes whether he agreed
   with its opinion.

   ... We recognize that there is a power differential between a
   United States District Court judge and a juror. Generally, a juror
   would be hard-pressed to disagree with a premise stated by the
   district court with which the district court asks the juror to
   agree.


Id. at 891-92.

(40.) See Loewy, supra note 2, at 736 ("In this context, juror misconduct means the intentional concealment of material information during voir dire.").

(41.) See McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556 (1984).

(42.) See id. at 556. This characterization has been subject to much debate. Although it is clear from the Justices' opinions that a denial of the effective use of peremptory challenges is not, by itself, sufficient to grant a new trial, the unanimous agreement among the justices appears to end there. See id. at 556-57 (Blackmun, J., concurring) ("[T]he honesty or dishonesty of a juror's response is the best initial indicator of whether the juror in fact was impartial.") (emphasis added); id. at 558-59 (Brennan, J., concurring) ("I therefore cannot agree with the Court when it asserts that a new trial is not warranted whenever a prospective juror provides an honest answer to the question posed."); David Crump, Peremptory Challenges After McDonough Power Equipment, Inc. v. Greenwood. A Problem of Fairness, Finality, and Falsehood, 69 OR. L. REV. 741, 749 (1990) ("Justice Rehnquist's pronouncements, however, may have been the Court's opinion in name only. Five of the Justices concurred separately."). Compare United States v. Doke, 171 F.3d 240, 246 (5th Cir. 1999) (using "the test of the plurality opinion in McDonough" to evaluate a claim of juror bias), and Dyer v. Calderon, 151 F.3d 970, 991 (9th Cir. 1998) ("In McDonough, a four-Justice plurality stated that, in order to obtain a new trial on account of juror bias, 'a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.'") (en banc) (O'Scannlain, J., dissenting) (citation omitted), with Pope v. Man-Data, Inc., 209 F.3d 1161, 1163 (9th Cir. 2000) ("[Appellee] characterizes the opinion of the court [sic], incorrectly, as a 'plurality opinion.' Authored by Justice Rehnquist, it was concurred in as the opinion of the court by seven justices."). See also Marks v. United States, 430 U.S. 188, 193 (1977) ("When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.'") (citation omitted).

(43.) See United States v. Ghilarducci, 480 F.3d 542, 547 (7th Cir. 2007) ("In addressing this potential argument, we are guided by the Supreme Court's decision in McDonough Power Equipment, Inc. v. Greenwood, where the Court set forth the standard for determining when the responses of a potential juror during jury selection mandate a new trial.").

(44.) McDonough, 464 U.S. at 549.

(45.) Id. at 550.

(46.) See id. at 552 n.3.

(47.) United States v. Medina, 430 F.3d 869, 875 (7th Cir. 2005) (quoting McDonough, 464 U.S. at 556). See also United States v. Arocho, 305 F.3d 627, 633 (7th Cir. 2002).

(48.) See Crump, supra note 42, at 751.

(49.) See, e.g., Hans & Jehle, supra note 38, at 1198-1201 (arguing for the increased use of more expansive voir dire questioning and pretrial juror questionnaires).

(50.) See, e.g., Lin S. Lilly, Let Jurors Speak the Truth, in Writing, 41 TRIAL 64 (2005); Morris B. Hoffman, Peremptory Challenges Should Be Abolished: A Trial Judge's Perspective, 64 U. CHI. L. REV. 809, 854-59 (1997).

(51.) See, e.g., Paula L. Hannaford-Agor, When All Eyes Are Watching: Trial Characteristics and Practices in Notorious Trials, 91 JUDICATURE 197,199 (2008) (citing Gregory E. Mize, Be Cautious of the Quiet Ones, 10 VOIR DIRE 8 (2003)); Gregory E. Mize, On Better Jury Selection: Spotting UFO Jurors Before They Enter the Jury Room, 36 CT. REV. 10 (1999), available at http://aja.ncsc.dni.us/courtrv/cr36-1/CR36-1Mize.pdf (finding that "includ[ing] the individual Interview of every citizen in the venire panel regardless of whether he or she responded to the generic opening questions" was highly effective in discovering jurors who all agreed should be struck for cause); Kimba M. Wood, The 1995 Justice Lester W. Roth Lecture: Reexamining the Access Doctrine, 69 S. CAL. L. REV. 1105, 1118-20 (1996) (noting that veniremen are more open in private settings than they are in public).

(52.) See Crump, supra note 42, at 749 (quoting McDonough, 464 U.S. at 556).

(53.) McDonough, 464 U.S. at 556.

(54.) Morgan v. Illinois, 504 U.S. 719, 727 (1992); Reynolds v. United States, 98 U.S. 145, 154 (1878) ("A juror to be impartial must, to use the language of Lord Coke, 'be indifferent as he stands unsworn.'"). Almost vestigial, Lord Coke's formula has continued to be referenced by the Court in one form or another. See, e.g., Morgan, 504 U.S. at 727 (stating that "the jury must stand impartial and indifferent"); Turner v. Murray, 476 U.S. 28, 32 (1986); Neb. Press Ass'n v. Stuart, 427 U.S. 539, 586 (1976) (commenting on "the right to a 'fair trial by a panel of impartial, "indifferent" jurors'") (quoting Irvin v. Dowd, 366 U.S. 717, 722 (1961)).

(55.) See James J. Gobert, In Search of the Impartial Jury, 79 J. CRIM. L. & CRIMINOLOGY 269, 276 (1988) ("It is the [plaintiff]'s obligation to overcome this institutionally created bias in favor of the defendant.... As thus conceived, the concept of impartiality must be read in the context of the Anglo-American ... justice system.").

(56.) McDonough, 464 U.S. at 556-57.

(57.) See 47 AM. JUR. 2D Jury [section] 230 (2008).

(58.) See Tumey v. Ohio, 273 U.S. 510, 532 (1927).

(59.) United States v. Wood, 299 U.S. 123, 133 (1936).

(60.) See supra text accompanying notes 3-6.

(61.) See, e.g., Smith v. Phillips, 455 U.S. 209, 223 (1982) (concluding that the prosecutors' failing to disclose a juror's job application as an investigator for the District Attorney's office was not adequate evidence for either actual or implied bias, and did not deprive the defendant of the fair and impartial trial).

(62.) Sharon R. Gromer, Note, Sixth Amendment--The Demise of the Doctrine of Implied Juror Bias, 73 J. CRIM. L. & CRIMINOLOGY 1507, 1516 (1982).

(63.) Dean A. Stowers, Note, Juror Bias Undiscovered During Voir Dire. Legal Standards for Reviewing Claims of a Denial of the Constitutional Right to an Impartial Jury, 39 DRAKE L. REV. 201, 203 (1989).

(64.) Wood, 299 U.S. at 134.

(65.) William T. Pizzi & Morris B. Hoffman, Jury Selection Errors on Appeal, 38 AM. CRIM. L. REV. 1391, 1411 (2001).

(66.) See Wood, 299 U.S. at 133.

(67.) Stowers, supra note 63, at 204.

(68.) See United States v. Kelton, 518 F.2d 531, 533 (8th Cir. 1975).

(69.) Tinsley v. Borg, 895 F.2d 520, 527 (1990).

(70.) Tumey v. Ohio, 273 U.S. 510, 532 (1927).

(71.) In re Murchison, 349 U.S. 133, 138 (1955).

(72.) Leonard v. United States, 378 U.S. 544, 544 (1964).

(73.) See United States v. Wood, 299 U.S. 123, 149 (1936).

(74.) Dennis v. United States, 339 U.S. 162, 171 (1950).

(75.) Smith v. Phillips, 455 U.S. 209 (1982). The fact that the juror did not conceal his interest in a career in law enforcement at voir dire was significant to the justices. See id. at 212 n.4. Interestingly, some judges have tried to read Smith v. Phillips to hold that the implied bias doctrine is no longer viable. See, e.g., United States v. Billups, 692 F.2d 320, 325 (4th Cir. 1982). But see Smith, 455 U.S. at 221 (O'Connor, J., concurring) ("I concur in the Court's opinion, but write separately to express my view that the opinion does not foreclose the use of 'implied bias' in appropriate circumstances.").

(76.) Hunley v. Godinez, 975 F.2d 316, 319 (7th Cir. 1992). The case involved coincidental facts where during a burglary trial, two of the jurors' rooms during their sequestration were broken into, and their belongings stolen. Id. at 317. Because of such circumstances, the Seventh Circuit held that the case presented an "extreme situation," of implied bias and should be read narrowly. Id. at 318-19.

(77.) Clark v. United States, 289 U.S. 1 (1933).

(78.) Id. at 6-8. Not only was the juror's husband a friend of the defendant's, but she was formerly employed by the defendant as well. Id. at 7-8.

(79.) Id. at 9-10.

(80.) Id. at 12-14.

(81.) See id. at 16-17.

(82.) Id. at 17-18.

(83.) Clark v. United States, 289 U.S. 1, 11 (1933).

(84.) See id. at 6-9.

(85.) Id. at 10.

(86.) See Greenwood v. McDonough Power Equip., Inc., 687 F.2d 338, 343 (10th Cir. 1982), rev'd, 464 U.S. 548 (1984).

(87.) Id. at 341.

(88.) Id. at 343.

(89.) Id. ("We accept as true that Mr. Payton did not intentionally conceal the information and held a good-faith belief that his son's injury was not a serious one resulting in disability or prolonged pain and suffering. Good faith, however, is irrelevant to our inquiry.").

(90.) Id.

(91.) Id.

(92.) Cf. Greenwood, 687 F.2d at 343 (Barrett, J., dissenting).

(93.) McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 555 (1984).

(94.) McCoy v. Goldston, 652 F.2d 654 (6th Cir. 1981).

(95.) See id. at 655-56.

(96.) See id. at 656.

(97.) See id.

(98.) Id.

(99.) Id. at 657.

(100.) McCoy, 652 F.2d at 657 (quoting Kiernan v. Van Schaik, 347 F.2d 775, 779 (3d. Cir. 1965)).

(101.) See id at 659.

(102.) See id This presumption of bias would be akin to a finding of bias "presumed as a matter of law." United States v. Wood, 299 U.S. 123, 133 (1936).

(103.) See McCoy, 652 F.2d at 657-58.

(104.) Id. at 659.

(105.) Id.

(106.) Id.

(107.) Crump, supra note 42, at 747.

(108.) Id. at 751-62 (describing the bifurcated method that many circuits use to either flatly deny relief, or to stretch the interpretation of the McDonough opinions so as to allow for a new trial on remand).

(109.) See McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 547, 556 (1984).

(110.) Id. at 548. As noted before, the question of whether to treat Justice Rehnquist's opinion as a majority or a mere plurality will often boil down to what outcome the judge has decided upon. See, e.g., Loewy, supra note 2, at 739 n.45 ("Justices Blackmun, O'Connor, and Stevens concur in the opinion but reject the harsh formalism of Justice Rehnquist's opinion. For example, they do not believe that a juror must intentionally withhold information in order for "a new trial to be granted." (internal citations omitted)).".

(111.) McDonough, 464 U.S. at 551-55.

(112.) See Greenwood v. McDonough Power Equip., Inc., 687 F.2d 338, 343 (10th Cir. 1982), rev'd, 464 U.S. 548 (1984).

(113.) See McCoy v. Goldston, 652 F.2d 654, 659-60 (6th Cir. 1981).

(114.) See McDonough, 464 U.S. at 555. Where Justice Rehnquist found this standard remains unknown. Indeed, some have gone so far as to claim that "Justice Rehnquist's actual prejudice test seems to have been fashioned out of thin air." Loewy, supra note 2, at 739 n.47. Although Justice Rehnquist's opinion in Smith v. Phillips, introduced the modern actual bias analysis, its adaptation to determine the juror's subjective intent was novel in these circumstances. Smith v. Phillips, 455 U.S. 209, 220-21 (1982).

(115.) Loewy, supra note 2, at 739.

(116.) See McDonough, 464 U.S. at 556.

(117.) See id.

(118.) See id. at 555-56 ("Thus, we cannot say, and we doubt that the Court of Appeals could say, which of these three jurors was closer to the 'average juror' in his response to the question, but it is evident that such a standard is difficult to apply and productive of uncertainties.").

(119.) See WAYNE R. LAFAVE, JEROLD H. ISRAEL, & NANCY J. KING, CRIMINAL PROCEDURE [section] 24.9(f) at 1165 (4th ed. 2004) ("Not only does this standard condition relief on the risks that a party was deprived of a challenge for cause, but it also applies only where the juror answered dishonestly. A false answer produced by a juror's misunderstanding of the question would not warrant relief, nor would an answer which the juror realized only later was mistaken ...").

(120.) Loewy, supra note 2, at 740. In these instances, the misconduct would be the purposeful dishonesty of the juror. Id. at 739.

(121.) See McDonough, 464 U.S. at 556-57 (Blackmun, J., concurring).

(122.) Id. at 556 (emphasis added).

(123.) See id.

(124.) Id. at 556-57 (citing Smith v. Phillips, 455 U.S. 209, 215-16, 221-24 (1982) (O'Connor, J., concurring)). E.g., Hunley v. Godinez, 975 F.2d 316, 320 (7th Cir. 1992) (holding that a case where jurors' rooms were broken into during a burglary trial presented such an extreme situation).

(125.) McDonough, 464 U.S. at 556-58 (Brennan, J., concurring).

(126.) See id. at 556-59. That is, Justice Brennan would not make a juror's intentional deception a necessary condition for relief. See id.

(127.) See id. at 556-58.

(128.) Id. at 558.

(129.) See, e.g., Zerka v. Green, 49 F.3d 1181, 1185 (6th Cir. 1995) ("The McDonough standard is more concerned with actual prejudice than with a juror's subjective mental state.") United States v. Colombo, 869 F.2d 149, 152 (2d Cir. 1989) (commenting, in a situation where a juror concealed the fact that her brother-in-law was a government attorney, that "[i]nquiry into the juror's state of mind by way of partial denial, explanation or protestations of impartiality would not reveal evidence that was under these circumstances either trustworthy or sufficient to offset the deliberate violation of the oath").

(130.) See, e.g., In re Hitchings, 860 P.2d 466, 475 n.5 (Cal. 1993) (finding that "five justices [in McDonough] declined to hold that a litigant must show a juror answered dishonestly a voir dire question before being entitled to relief"); State v. Thomas, 830 P.2d 243, 246 (Utah 1992) (adopting the McDonough test and stating that "[w]e think the better-reasoned approach mandates that a juror's 'honesty' or dishonesty be determined from an objective perspective" and that "intent or lack of intent is irrelevant").

(131.) See Crump, supra note 42, at 771 (observing how "any alternative standard must compromise between competing objectives").

(132.) See McDonough, 464 U.S. at 555.

(133.) See Loewy, supra note 2, at 762 n.182.

(134.) See supra text accompanying notes 3-6.

(135.) See, e.g., Crump, supra note 42, at 773 (suggesting that such a requirement can be justified since losing litigants will feel that they were not the victims of an egregious injustice if the juror had been honest, rather than simply inattentive or mistaken).

(136.) U.S. CONST. amend. VI, cl. 1 ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed....") (emphasis added)).

(137.) See Jennifer H. Case, Note, Satisfying the Appearance of Justice When a Juror's Intentional Nondisclosure of Material Information Comes to Light, 35 U. MEM. L. REV. 315, 337-38, 343 (2005) (advocating for a "bright line test" for impartiality to satisfy the concern over the appearance of injustice). E.g., State v. Thomas, 830 P.2d 243, 246 (Utah 1992) ("[The juror's] intent or lack of intent is irrelevant.").

(138.) See, e.g., United States v. Warner, 498 F.3d 666, 705 (7th Cir. 2007) (Kanne, J., dissenting) ("There is rarely perfection in any human endeavor and in particular jury trials. What we expect from our judicial system is not an error free trial, but a trial process that is properly handled to achieve a fair and just result.").

(139.) See Irvin v. Dowd, 366 U.S. 717, 722 (1961); Amirault v. Fair, 968 F.2d 1404, pincite (1st Cir. 1992) (per curiam) (denying a defendant's habeas petition when, at his trial for rape, a juror failed to disclose that she had previously been the victim of a rape).

(140.) See, e.g., Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir. 1998) (en banc) ("The bias or prejudice of even a single juror would violate [the] right to a fair trial.").

(141.) E.g., Broeder, supra note 17, at 511.

(142.) See McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984) (Blackmun, J., concurring) (notably using the term "inferred" regarding juror bias).

(143.) Id. at 556-58 (Blackmun, J., concurring); id. at 558 (Brennan, J., concurring)

(144.) Id. at 556 (Blackmun, J., concurring); id. at 558 (Brennan, J., concurring).

(145.) See Greenwood v. McDonough Power Equip., Inc., 687 F.2d 338, 343 (10th Cir. 1982), rev'd, 464 U.S. 548 (1984); McDonough, 464 U.S. at 558 (Brennan, J., concurring) ("Because the bias of a juror will rarely be admitted by the juror himself, 'partly because the juror may have an interest in concealing his own bias and partly because the juror may be unaware of it,' it necessarily must be inferred from surrounding "facts and circumstances." (quoting Smith v. Phillips, 405 U.S. 209, 221-22 (1982) (O'Connor, J., concurring))).

(146.) Cf. id. at 556 (Blackmun, J., concurring); id. at 557-59 (Brennan, J., concurring).

(147.) See, e.g., United States v. Cassamayor, 837 F.2d 1509, 1515

(11th Cir. 1988) (giving the example of juror nondisclosure from "inattentiveness"); United States v. Howard, 752 F.2d 220, 225 (6th Cir. 1985) (giving the example of nondisclosure due to juror's lack of knowledge of conflict between a witness and his daughter at the time of voir dire).

(148.) There are a myriad of facts that could sway a court to conclude that a juror's nondisclosure or incorrect responses were intentional or simply unreasonable, and such information might include the level of specificity of the questions asked during voir dire or the previous venire persons' answers to these questions. Compare United States v. Columbo, 869 F.2d 149, 152 (2d Cir. 1989) ("Inquiry into the juror's state of mind by way of partial denial, explanation or protestations of impartiality would not reveal evidence that was under these circumstances either trustworthy or sufficient to offset the deliberate violation of the oath."), with United States v. Bynum, 634 F.2d 768, 770 (4th Cir. 1980) (giving the example a juror who stated that he did not consider his brother, his sister-in-law, or his nephew, all of whom were convicted felons, to be particularly "close" relations to him, but court presumed bias from this concealment).

(149.) McDonough, 464 U.S. at 555.

(150.) See, e.g., Urseth v. City of Dayton, 680 F. Supp. 1084, 1091 (S.D. Ohio 1987) (treating the two prongs as wholly distinct, and that even a dishonest response from a juror would not have necessarily merited a successful challenge for cause).

(151.) See, e.g., United States v. Colombo, 869 F.2d 149, 151 (2d Cir. 1989); United States v. Scott, 854 F. 2d 697, 698 (5th Cir. 1988); United States v. St. Clair, 855 F.2d 518, 521-23 (8th Cir. 1988); United States v. Perkins, 748 F.2d 1519, 1533 (11th Cir. 1984); United States v. Bynum, 634 F.2d 768, 771 (4th Cir. 1980).

(152.) McDonough, 464 U.S. at 556 (Blackmun, J., concurring).

(153.) Cf. Hunley v. Godinez, 975 F.2d 316, 318-19 (7th Cir. 1992). But see Amirault v. Fair, 968 F.2d 1404, 1405-06 (1st Cir. 1992) (per curiam) (denying a defendant's habeas petition under McDonough when, at his trial for child rape, a juror failed to disclose that she had previously been the victim of a rape as a child).

(154.) See McDonough, 464 U.S. at 550-51.

(155.) Cf. id. at 556 (Blackmun, J., concurring).

(156.) See McCoy v. Goldston, 652 F.2d 654, 657 (6th Cir. 1981).

(157.) See Culhane et al., supra note 5, at 657 ("All victims do not need to be excused simply because they are victims.... Using victimization as a criterion for challenging members of a jury panel, as our study shows, could exclude more than 40% of eligible jurors.").

(158.) Gonzales v. Thomas, 99 F.3d 978, 984 (10th Cir. 1996).

(159.) Id. at 980-81.

(160.) Id. at 981. Another juror paraphrased what the juror in question stated at the deliberations: "At the time we were deliberating, she kind of said that she knew what [the victim] was going through because she had been assaulted." Id. at 983.

(161.) Id. at 985.

(162.) Id. at 981. The prospective juror had stated that "two of her relatives had gone to trial on similar charges a few years before." Id.

(163.) Id. at 982.

(164.) Id.

(165.) Id. at 985.

(166.) Id. at 991.

(167.) Id. at 981.

(168.) Amirault v. Fair, 968 F.2d 1404, 1404 (1st Cir. 1992) (per curiam).

(169.) See id. at 1405.

(170.) See id. at 1406.

(171.) Cf. Culhane et al., supra note 5, at 654-57 ("The greater the similarity between jurors['] own experiences and the case they were asked to try, the more impact their experience had on their decisions.... [J]urors who had been a victim of home burglary and had a close friend or relative who was a victim of a home burglary were 16.7% more likely to convict the defendant.").
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