Can the Judge Just Ask the Jury to Be Fair?
Sometimes you get a fair shot in jury selection and sometimes you don’t.
The amount of information that you obtain about potential jurors and your ability to question them varies wildly from court to court. If you’re lucky, you may receive a lengthy questionnaire from each potential juror. You may also have time to investigate their backgrounds or examine their social media use. And you may have the chance to question (voir dire) the potential jurors at length to better understand their potential biases and get some insight into how they will think and act in a jury room.
But if you’re unlucky, you get no questionnaire, the judge asks only a handful of vague questions, and you have essentially zero time to do any investigation of your own. After an exceedingly cursory process, you get a few minutes to exercise your peremptory strikes while the judge breathes down your neck to move faster. You make the decision with less information about each potential juror than fits on a business card.
One particularly frustrating feature of unfair jury selection occurs when a court’s questioning – superficial and abbreviated though it may be – nevertheless elicits a response from a potential juror that strongly suggests bias. Even when that happens you will sometimes see a judge refuse to ask reasonable follow-up questions or (worse) shut down the whole inquiry with a heavy-handed statement. For example, if a potential juror admits that they were previously sued for the same thing as the defendant, a judge may respond: “But you could still be fair, right? If I told you that you had to be fair and had to neutrally follow the law, you’d do that, right?”
Perhaps one day, I’ll come across someone cussed enough to stand up in a courtroom in front of a hundred strangers and tell a judge: “Nope, I’ll still be unfair and do what I want even if you tell me not to.” But it hasn’t happened yet. And most of the time we don’t have any recourse. Truth be told, we win many cases even when jury selection is unfair and aren’t typically appealing winning verdicts. But occasionally a trial court will go too far in handwaving away obvious jury bias and there’s genuinely an appeal issue.
Two cases from earlier this year illustrate the point nicely. In People v. Fisher, [1] the Court of Appeals of New York reviewed a criminal jury verdict where there were allegations of juror bias. The defendant (Fisher) had been convicted of two counts of drug possession and sentenced to nine years in jail. The appeal concerned a note that the judge had received during jury deliberations that read:
Confidential, one juror feels she may have been followed home Monday by Mr. Fisher.
After determining that it was Juror Number Six, the judge summoned the juror to his robing room for an exchange that will feel very familiar to anyone who has ever been in front of a judge eager to brush something off:
THE COURT: ... The foreperson had indicated in a note to us that you had felt that Monday, after jury selection, that you may have been followed home by Mr. Fisher?
JUROR SIX: Yes.
THE COURT: What leads you to believe that?
JUROR SIX: Because I could see him in my rearview mirror.
* * *
THE COURT: Okay. Were you able to see that this car was directly behind you, or was it a couple of spots behind you, or—
JUROR SIX: It may have been six or eight car lengths behind me.
* * *
THE COURT: Can you give us with any percentage degree how certain you think that it may have been Mr. Fisher?
JUROR SIX: 95 percent.
THE COURT: Okay. Is there a reason why you are bringing this up to us now, rather than let's say when we reconvened on Wednesday morning?
JUROR SIX: Because other juror members were scared for their own safety, because of certain people that were sitting watching the trial through the week.
THE COURT: Okay. And without getting into what other —those concerns may be, does this affect your ability to remain on the jury?
JUROR SIX: No.
THE COURT: Could you be a fair and impartial juror?
JUROR SIX: I can be a fair and impartial juror, yes. I say that, because the other juror members encouraged me, because their safety may be at risk.
THE COURT: Well, you did exactly what you were supposed to do by telling us your concerns. So without confirming whether that was or was not [defendant], and obviously, we don't know that, and we're just listening to you, you could put aside whatever that is?
JUROR SIX: Yes.
THE COURT: And determine this case solely on the evidence and the legal instructions that I gave you.
JUROR SIX: Yes.
The defendant’s counsel, somehow unconvinced by this exchange, moved for a mistrial on the grounds that multiple members of the jury were apparently terrified of his client. The lawyer noted that this could easily be evidence of racial bias, as his client was black and the juror in question had apparently seen a random black man in a car “six or eight car lengths” behind her and assumed that it must have been the defendant. But the judge summarily denied the motion on the grounds that the juror had “indicated that she could remain fair and impartial.” And in a less-than-surprising move, the terrified jurors then convicted the defendant.
On review, the New York Court of Appeals saw things differently. Applying N.Y. CPL 270.35, which requires dismissal of a juror who is “grossly unqualified” and a mistrial if no replacement is available, the Court found that the juror’s belief that the defendant was personally stalking her rendered her ineligible to serve. The Court noted that a juror is grossly unqualified under New York law “if the record convincingly demonstrates that the sworn juror cannot render an impartial verdict.” And taking aim squarely at the trial court’s attempt to “prove” that the juror was unbiased, the Court noted that “we have also stated repeatedly that assurances of impartiality are not magic words” and that “one-word affirmative responses to formulaic questions from the court, do not support the conclusion that she could put her bias aside in light of the surrounding context.” Accordingly, the conviction was vacated, and the matter set for a new trial.
A federal appeals court reached a similar result in the civil context earlier this year. In Fylling v. Royal Caribbean Cruises, Ltd., [2] a plaintiff sued a cruise line after tripping and falling on one of their cruise ships. Prior to trial, the parties submitted a set of proposed voir dire questions, which the trial judge basically ignored. The parties also requested the opportunity to ask some questions of the potential jurors, which the judge also denied, “explaining its typical practice of not allowing lawyers to ask questions during voir dire.” After a cursory jury selection handled entirely by the judge, the parties delivered their opening statements.
Once opening statements had concluded, the court dismissed the jury for the day. But “while the courtroom deputy was gathering the jurors’ information, one of the jurors—Juror Eight—said that her niece worked for the Defendant.” Upon learning this, the trial judge remarked “I don't know that that's disqualifying because I did ask is there anything that you—have any reason to think that you might not be fair and impartial in this case.” Over the objection of the plaintiff, the judge decided to keep the juror, remarking “if she thought it was going to put them out of business, that would be one thing…. I doubt that this case is significant as it is to put them out of business” and “any family relationship to the parties is covered by asking jurors if they could be fair and impartial in the case.” The judge did no further inquiry and the jury then returned a verdict finding the plaintiff 90% responsible for her own injuries.
On review, the Court of Appeals for the Eleventh Circuit also saw things differently. Noting that the court would have discovered the issue during jury selection had it only asked the questions that the parties had jointly agreed-to, the appellate court was further irritated by the trial court’s decision not to do any investigation of the juror’s bias after discovering it:
A corollary of the requirement to excuse biased jurors is the duty to investigate colorable claims of juror bias when they arise. When a district court becomes aware of potential juror bias, the trial judge must develop the factual circumstances sufficiently to make an informed judgment as to whether bias exists. Developing an adequate record sometimes requires specific and direct questioning of an individual juror. We have explained that specific questioning is necessary when, under all of the circumstances presented, there is a reasonable possibility that a particular type of prejudice might have influenced the jury. Thus, broad, vague questions of the venire will not suffice when a reasonable possibility of bias develops.
* * *
But the district court did not do so. It did not place Juror Eight under oath to ask her specific, direct questions about whether she could serve impartially despite her niece's employment by Royal Caribbean. And the district court allowed Juror Eight to deliberate when it could have excused her for cause and still had enough jury members to return a verdict. Permitting Juror Eight to remain on the jury without questioning her further was an abuse of discretion.
The Court of Appeals was also unpersuaded by the district court’s insistence that a general “can you be fair” question was sufficient to eliminate any chance of bias:
In defense of its decision, the district court pointed to Juror Eight's silence in response to its general question whether anyone could think of a reason they could not be impartial. Royal Caribbean echoes this rationale. The problem is that our precedent in Nell rejected that exact argument. In Nell, the former Fifth Circuit admonished district courts entertaining claims of implied juror bias to develop the facts fully enough so that they can make an informed judgment, emphasizing that this duty cannot be discharged solely by broad, vague questions once some potential area of actual prejudice has emerged. Indeed, we and our predecessor court have repeatedly rejected the view that general questions can satisfy a district court's duty to explore potential juror bias.
As a result, the Court of Appeals overturned the jury verdict and remanded the case for a new trial.
So, what can we take away from all of this? First, “can you be fair” is not some magic spell to transform biased jurors into fair ones, even if some judges feel otherwise. Second, do not abandon hope even if a trial judge seems reluctant to adequately probe juror bias. Make your record that you think that the juror should be excused and/or a mistrial declared and preserve the issue for appeal.
And finally, consider carefully whether you really want to fight for a juror who isn’t obviously in the tank for your side. The Fylling juror with a niece working for Royal Caribbean probably should have been dismissed for bias, but it’s not remotely clear that she rolled the rest of the jury into a defense-friendly verdict. Yet because she stayed on the jury, all of the time and money the defendant spent on winning the first trial was ultimately for nothing. And if there’s anything worse than unfair jury selection, it’s being forced to retry a case that you almost certainly would have won anyway because you held on to a marginal (but legally unsupportable) edge.
[1] 2024 WL 1723117 (N.Y. April 23, 2024).
[2] 91 F.4th 1371 (11th Cir. 2024).
