12.13 - 2. Juror Is Biased

• Jurisdiction: New York

2. Juror Is Biased

If a juror exhibits a “state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at trial; . . . or he bears some other relationship . . . of such nature that it is likely to preclude him from rendering an impartial verdict,”¹⁹¹⁰ he or she can be challenged by either the prosecutor or defense counsel. Such bias is generally brought out only through questioning during the voir dire. An example of bias sufficient to cause disqualification would be where a prospective juror, prior to hearing any evidence, admits that he already has formed an opinion as to the defendant’s guilt or innocence.¹⁹¹¹ Another example would be where a prospective juror, in a case where the defendant is a member of a minority group, voices hostility to racial minorities and never expressly and unequivocally states that his inner feelings will not affect his verdict.¹⁹¹²

In addition, there is “the grossly unqualified juror.” Before a trial judge dismisses a sworn juror as grossly unqualified, per CPL § 270.35, he or she must first question the juror individually in camera in the presence of counsel and conduct a probing and tactful inquiry to determine if the juror will be able to deliberate fairly and render an impartial verdict. The intent is to create a framework in which a trial judge can evaluate a sworn juror who unbeknownst beforehand may possess a state of mind that would prevent him or her from rendering an impartial verdict.¹⁹¹³

Removal of a sworn juror, over a defendant’s objection, requires that the juror be shown to be grossly unqualified, that is, when it becomes obvious that the juror possesses a state of mind which would prevent the rendering of an impartial verdict. While a judge should lean towards disqualifying a prospective juror of dubious impartiality when he is challenged for cause the standard for disqualifying a sworn juror is “grossly unqualified.” Removal of a sworn juror who was not grossly unqualified is per se reversible error.¹⁹¹⁴ To preserve an objection to the removal of a sworn juror for appellate review the grounds therefor must be reasonably specific in the trial court. A switch may not be made on appeal.¹⁹¹⁵

The dubiously impartial prospective juror might engender the following guidance: When in doubt, throw ’em out.

When potential jurors themselves say they question or doubt they can be fair in the case, Trial Judges should either elicit some unequivocal assurance of

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