THE RIGHT TO A CONSTITUTIONAL JURY WHEN ALLOWING JURORS WITH ACTUAL BIAS TO SERVE ON THE JURY

I published an article in the May 2019 edition of NW Lawyer, our state bar publication, about our statutes which allow a juror with actual bias to serve on the jury. The title is “Washington Law On Jury Challenges for Bias Undermines Litigants Constitutional Right to An Impartial Jury.” The article can be read at http://nwlawyer.wsba.org/nwlawyer/may_2019?pg=34#pg34

Many states have similar provisions to Washington in that regard. Our statute, RCW 4.44.190 says:

“A challenge for actual bias may be taken for the cause…But on the trial of such challenge, although it should appear that the juror challenged has formed or expressed an opinion upon what he or she may have heard or read, such opinion shall not of itself be sufficient to sustain the challenge, but the court must be satisfied, from all the circumstances, that the juror cannot disregard such opinion and try the issue impartially.”

The law allows a trial judge to permit a person with a demonstrated or admitted bias to nevertheless serve as a juror on the assurance they can ignore the bias, be open minded and follow the law. However, neuroscience and psychology have clearly demonstrated that to do this is virtually impossible irrespective of the person’s sincerity in assuring the ability to do it.

While the statute grants discretion to the judge about deciding if the juror should serve, the law should be changed. It should provide that once it is established the juror has a bias that influences the issues in the case, it should be mandatory that the juror is excused on a challenge. Our statute was originally enacted in 1881 and the language in question has never been amended. Sixteen years ago other language in the bill was deleted, but not the provision that a juror shall not be excluded from serving due to actual bias unless the court finds the bias cannot be disregarded by the jury. Since the enactment of the law 138 years ago, we have learned that irrespective of the sincerity of the juror and the wisdom of the judge in evaluating assurances of this kind, it is an impossible demand. Consequently, the provision, requiring an action that is not possible, should be eliminated.

In addition, while we can rely upon the experience and knowledge of a judge understanding the statutory requirement is a futile one, we are empowering judges with a discretion, they should not have, by allowing a juror with actual bias to serve. I’ve documented in the article several actual cases where that has happened and was approved on appeal.

Until the law is changed there is a significant risk the court could allow a juror with actual bias to serve on the jury by relying upon the juror’s assurances they will not allow the bias to influence their verdict. The usual format is the lawyer questioning the juror discloses the bias. The lawyer challenges the juror serving. The judge then asks the juror (often by leading questions) if the juror can “set aside” their bias and follow the law given by the court. The intimidated juror assures the judge they can do so and the judge denies the challenge. To circumvent that happening I suggest considering this approach when the bias is revealed and before making any challenge.

  1. Set the stage for challenging the juror by discussing the fact not everyone should serve on every kind of case. There are some cases where it isn’t appropriate for them to serve and others where they would be perfect jurors. Q. Will you all be perfectly honest with us about your feelings and if you feel this is not the type of case you should serve on, point that out to us? etc.

2.   Never argue with a juror about their bias. You will never convince them and fact you are arguing will offend all. Instead, you (1) thank them very sincerely for their courage and honesty in making the statements. (2) Affirm that this is exactly what you want the jurors to do – be absolutely honest about their feelings even though the lawyer may not want to hear it and (3) tell them you know other people probably agree with their feelings.

3. Next, use that as a reason to see how many others are potential problem jurors by asking: “How many of the rest of you agree with Mr……? – this identifies the other people with similar bias. (4) then ask how many of you don’t agree with Mr…..? Pick one of these and ask why you don’t agree. Continue with the rest so that the jurors are making the argument for you.

4.  Next, establish the bias clearly through discussion with the juror by exploring their feelings. Do not worry about “contaminating” the rest of the panel, because no one changes their existing attitudes on the basis of listening to another juror. You want to establish their attitude isn’t going to change or they are capable of setting it aside even if the law provides otherwise or the judge tells them to do it. You do this before the judge questions the juror. This process involves these steps  (1) Deeply held and long held belief: Q. I assume you have felt this way for some time? This isn’t something you just this morning decided? You’ve given it thought and over a period of time have reached this conclusion? It’s clear you feel strongly about this? (2) Not a belief that can be set aside: Q. Since you feel strongly this way I assume I’m not going to be able to talk you out of it? It isn’t something that arguing with you would change your mind? It’s true, isn’t it, that if you were asked by the court to set that opinion aside you would say that you cannot do that? etc etc.

Lastly, prepare them for challenge for cause Q. You understand that (your client) might feel this particular case is not a case you should serve on as a juror? Would you understand, if we raised that issue with the judge? Further, prepare the juror and the other jurors for the challenge by asking if they can understand why, you as the lawyer, would hesitate to have them on this particular case while they might be fine in another. Ask a few questions that it is only in this instance and this case you have reservations about their serving due to the specific issues in this particular case. Once you have laid this foundation you can challenge the juror. But, do so first in a diplomatic manner: “You honor, I think this is a case where Juror number 7 should not serve based upon our discussions together.” If the court insists on a formal challenge, you can back it up with, “yes, your honor, I am challenging the juror for serving.”

This is only an example of how one might proceed. It should be modified to fit the rules of your jurisdiction.

About Paul Luvera

Plaintiff trial lawyer for 50 years. Past President of the Inner Circle of Advocates & Washington State Trial Lawyers Association. Member American Board of Trial Advocates, American College of Trial Lawyers, International Academy, International Society of Barristers, member of the National Trial Lawyers Hall of Fame & speaker at Spence Trial College
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