Criminal Jury Selection After People v. Novotny
| Jurisdiction | Colorado,United States |
| Citation | Vol. 44 No. 2 Pg. 41 |
| Pages | 41 |
| Publication year | 2015 |
Articles
Criminal Law
Criminal Jury Selection After People v. Novotny
By Samuel A. Evig, Kelly Fischer.
Criminal Law articles are sponsored by the CBA Criminal Law Section and generally are written by prosecutors, defense lawyers, and judges to provide information about case law, legislation, and advocacy affecting the prosecution, defense, and administration of criminal cases in Colorado state and federal courts.
Coordinating Editor
Morris Hoffman, Judge for the Second Judicial District Court, Denver
Jury selection sometimes creates confounding problems for trial courts, attorneys, and appellate courts, each of which brings very different perspectives to bear. Trial courts focus on selecting a fair jury in a reasonable amount of time.[1] Attorneys tend to focus on eliminating jurors they view as being less sympathetic to their client's case—whether by challenges for cause or peremptory challenges.[2] Appellate courts must then decide, after viewing a cold and often imprecise record, whether the trial court's rulings on challenges for cause were proper and whether the attorneys exercised their peremptory challenges in a lawful fashion.[3] While reviewing challenges for cause is a relatively straightforward analysis, [4] the introduction of peremptory challenges complicates the situation because of the interplay between the two types of challenges.
Attorneys have two avenues to remove jurors: challenges for cause and peremptory challenges. If a juror demonstrates a bias or has an obvious disqualifying relationship to a litigant, the challenge is a for-cause challenge.[5] There is no limit on the number of challenges for cause.
The second method of removing jurors, peremptory challenges, creates an opportunity for an attorney to strike jurors without articulating a specific reason (presuming the attorney is not striking a juror because of the juror's race or gender). Trial courts limit the number of peremptory challenges.[6] The defense and prosecution typically have the same number of peremptory challenges and exercise them in an alternating fashion.[7] The exercise or non-exercise of peremptory challenges turns into a sort of chess game with blinders on, because advocates make decisions based on their perceptions of the desirability of jurors and their perceptions of the relative undesirability of jurors to the opposing side.
Challenges for cause and peremptory challenges relate to each other in one important way: if the court strikes a juror for cause, an attorney need not use a peremptory challenge on that juror.[8] Conversely, if an attorney attempts to challenge a juror for cause and the challenge fails, the attorney will likely have to use a peremptory challenge on the juror. Thus, the grant or denial of challenges for cause can directly affect trial attorneys' strategy decisions about their use of peremptory challenges.
Sometimes, a court wrongfully grants or denies a challenge for cause. A wrongful denial means the challenging attorney will likely have to use a peremptory challenge to remove the juror. A wrongful grant means the challenging attorney will likely save a peremptory challenge for use on a different unfavorable juror. In both situations, the error creates an asymmetry in the ability of the attorney to shape the most favorable jury.
That said, does the wrongful taking of a peremptory challenge or the wrongful gift of one mean anything? After all, the ultimate purpose of jury selection is to pick a fair jury. The wrongful denial or grant of a challenge, without more, does not necessarily mean the jurors who hear the case are not fair. On the contrary, the remaining jurors all survived any challenges for cause, so we know, as much as we can ever know, that they are fair and unbiased. So even with an improper denial of a challenge for cause and the use of a peremptory on that juror, what is the harm when a fair and impartial jury found the defendant guilty?
The traditional answer has been that even though the jury was fair and impartial, the defendant lost, through the relative loss of a peremptory challenge, his or her right to "shape the jury." The question is whether the right to shape the jury to the litigant's ends is so fundamental—a so-called structural error—that we should reverse the conviction even though there was no demonstrable harm.
The Colorado Supreme Court faced these issues in the recent decision of People v. Novotny.[9] In that case, the Court reversed a host of prior decisions exemplified by People v. Macrander.[10] In reversing the Macrander line, the Court considered fundamental fairness, structural error versus harmless error, the purpose of jury selection, and whether process or outcome mattered more. It also discussed decisions by the U.S. Supreme Court both before and after Macrander.
The Macrander/Automatic Reversal Rule
The automatic reversal rule required an automatic reversal of a guilty verdict and a new trial if the court wrongfully granted or denied a challenge for cause. Specifically, the rule applied to situations in which the defense challenged a juror for cause, the court then improperly denied the challenge, the defense had to use a peremptory challenge to excuse the juror, [11] and the defense exhausted all their remaining peremptory challenges.[12]
Colorado planted the roots of the rule more than a century ago in Denver City Tramway Co. v. Kennedy.[13] There, the Colorado Supreme Court rejected the premise that an erroneous denial of a challenge for cause supported a new trial if and only if another objectionable juror took the place of the juror and actually heard the case. Although Denver City Tramway was a civil case, the Macrander Court found the holding applied with "even greater force to a felony prosecution."[14]
The issue in Macrander involved a defense challenge for cause to a prospective juror, McNulty.[15] During the trial court's questioning, McNulty disclosed that her son worked as a deputy district attorney in the same office prosecuting the defendant—although he was not directly involved in the prosecution.[16] The defense challenged her pursuant to CRS § 16-10-103(l)(b) (which establishes a challenge for cause for any juror who is related within the third degree to any attorney of record), arguing that because her son worked in the same office as the prosecuting attorney, he qualified as an attorney of record.[17] After the trial court denied the challenge for cause, the defendant used a peremptory challenge on McNulty and exhausted all his other peremptory challenges.[18]
The Macrander Court reversed the defendant's conviction. First, the Court ruled that McNulty's son qualified as an attorney of record and found the trial court should have granted the challenge on that basis.[19] However, the real thrust of the opinion is what the Colorado Supreme Court said about the nature of the harm (if any) suffered by the defendant as a result of the trial court's error.
The Court concluded that the trial court, in effect, took a peremptory challenge away from the defendant by failing to grant the challenge for cause, forcing the defendant to use one of his peremptory challenges on McNulty.[20] Regardless of the defendant's inability to show that any of the jurors who actually heard the case was biased or unqualified, the Court concluded that the denial of the defendant's ability to exercise his full complement of peremptory challenges was so fundamental that it required a new trial.[21]
In its reasoning, the Macrander Court distinguished a U.S. Supreme Court opinion. The decision, Poss v. Oklahoma, involved a death penalty case in which the trial court, like the Macrander trial court, erroneously denied a challenge for cause.[22] As in Macrander, Ross used a peremptory challenge on the juror the Court should have excused for cause and then exhausted his other peremptory challenges. The U.S. Supreme Court found no violation of the defendant's Sixth Amendment right to an impartial jury because, in part, "peremptory challenges are not of constitutional dimension."[23] Further, the U.S. Supreme Court found no violation of the Fourteenth Amendment's Due Process protections because peremptory challenges are a creature of state law. Under Oklahoma law, a defendant had to exercise his or her peremptory challenges to cure the trial court's error. Because the defendant did so, the defendant received the benefit to which he was entitled (having peremptory challenges to guarantee an impartial jury).[24]
Even with the Ross decision, the Macrander Court found that in Colorado, the tactical advantage (if any) afforded to the prosecution, and the denial of the defendant's right to exercise an equal number of peremptory challenges warranted automatic reversal.[25] The Macrander Court distinguished Ross on one fundamental ground—namely, it found the right to exercise peremptory challenges to be a "substantial right" of the defendant.[26] By characterizing the right as "substantial, " the Court, in modern parlance, found the error in Macrander to be structural. Even without a showing of harm, the loss of a peremptory challenge supported an automatic reversal.
Colorado extended the automatic reversal rule in People v. Lefebre.[27] There, the Court applied the rule to situations in which the trial court erroneously granted a prosecution's challenge for cause. During jury selection, the trial court granted the prosecution's motion to strike several jurors based on their questionnaires before either side questioned them.[28] The Court reasoned that excusing those jurors gave an unfair tactical advantage because the prosecution did not have to exercise a peremptory challenge on any of the stricken jurors.[29] The Court found the defense might have been able to rehabilitate...
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