Challenges for cause in New York criminal cases.

• Author: Abramovsky, Abraham

1. INTRODUCTION

   The right to an impartial jury has long been recognized by both the United States Supreme Court and the New York Court of Appeals as one of the most fundamental rights guaranteed to the accused.(1) Without an impartial jury, the other constitutional and statutory rights granted to the accused are all but meaningless.(2) If the jurors have prejudged the case, it matters little that the defendant is represented by art attorney or that he has the right to present witnesses.(3) Consequently, jury selection is one of the most critical stages of a criminal proceeding.(4)

   An indispensable component of the defendant's right to an impartial jury is the elimination of biased jurors,(5) and this has formed one of the most frequently litigated issues in New York criminal cases.(6) The New York Criminal Procedure Law provides three methods for challenging biased jurors: challenges to the entire panel, peremptory challenges, and challenges for cause.(7) The grounds for which an entire panel may be challenged are extremely narrow, relating only to the method of selecting the jury pool and requiring the defendant to prove "substantial prejudice."(8) In contrast, peremptory challenges may be used for nearly any reason or none,(9) but they have the disadvantage of being limited in number,(10) Thus, challenges for cause--which are unlimited and which may be brought for a much wider variety of reasons(11)--are an indispensable method of ensuring that prospective jurors who are biased against the a party are not permitted to sit.

   Among the most common statutory provisions under which prospective jurors are challenged for cause is section 270.20(1)(b) of the Criminal Procedure Law,(12) which provides that a juror should be disqualified if "[hie has a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at the trial."(13) This provision allows prospective jurors to be challenged for a wide range of preconceived opinions and biases. (14) However, once a prospective juror expresses such a bias, it is frequently difficult, or even impossible, to determine whether he has truly prejudged the case or whether he can set his prejudice aside.(15) The discretion granted to trial judges by the Court of Appeals in adjudicating such challenges has thus led to numerous claims of error by defendants who allege that biased jurors were improperly empanelled.(16)

   The New York Court of Appeals has correctly described this as a "bothersome area of law."(17) In five cases during the past thirty years, the high court has wrestled with the interpretation of Criminal Procedure Law section 270.20,(18) and despite its attempts to arrive at a definitive construction of the statute, lower courts continue to differ as to the proper standard for adjudicating challenges for cause.(19) Thus, in April 2000, the Court of Appeals, in People v. Johnson,(20) made its most recent attempt to lay the unresolved issues in criminal jury selection to rest. This article will examine, in light of the history of challenges for cause under New York law, whether it has succeeded.

   Accordingly, Part II of this article will analyze the evolution of challenges to biased jurors in New York from the beginning of the nineteenth century to the enactment of the Criminal Procedure Law in 1972.(21) Part III will examine the interpretation of Criminal Procedure Law section 270.20(1)(b) by the Court of Appeals and lower New York courts between 1972 and 2000, and discuss the difficulties faced by those courts in interpreting the statute.(22) Part IV will discuss the Court of Appeals' holding in Johnson and determine whether any or all of these difficulties have been successfully resolved.(23)

2. JUROR DISQUALIFICATION PRIOR TO THE CRIMINAL PROCEDURE LAW

   In 1878, the New York Court of Appeals noted that, at common law, any venireman who had formed or expressed an opinion of the defendant's guilt or had otherwise demonstrated that he was not indifferent between the parties was, "as a rule of law, disqualified."(24) Despite the confidence with which the high court made this pronouncement, however, the disqualification of prospective jurors for bias had actually been a settled principle of law for fewer than fifty years.(25)

   To be sure, certain categories of persons had been prohibited from sitting on trial juries for centuries due to the implied bias that might arise from their relationship with the accused.(26) As early as the reign of Edward III of England in the fourteenth century, it was forbidden for members of the grand jury that indicted the defendant to sit on the petit jury that tried him.(27) At least one commentator noted that this prohibition was an "affirmance of the common law"(28) that trial jurors cannot be indifferent if they did their duty as grand jurors.(29) In succeeding centuries, other legal disqualifications, such as blood relationships between a prospective juror and a party, were also developed under a theory of implied bias.(30) However, the formation of an opinion as to the guilt or innocence of the accused was, as late as 1827, not firmly established as a disqualifying factor.(31)

   The development of appellate precedent on this issue was complicated by the fact that the common law recognized two kinds of challenges to a prospective juror--challenges for principal cause and challenges to the favor.(32) "The former is for what, in judgment of law, will disqualify a juror," while "[t]he latter is any thing [sic] else which operates to render him partial."(33) As explained by the Court of Appeals in the 18130 decision Sanchez v. People,(34) a challenge for principal cause was adjudicated by the court, while a challenge to the favor was commonly made before triers of fact appointed by the trial judge.(35) The testimony given before the triers of a challenge to the favor was off the record, and their ruling was final and not subject to appeal.(36) This rule applied even if a challenge to the favor were tried by the court on consent of the parties, as was periodically done during the nineteenth century.(37)

   Accordingly, it was necessary for New York courts during the early nineteenth century to settle two issues: first, whether a prospective juror's preconceived opinion was a ground for challenge at all, and second, whether an erroneous ruling regarding his bias was subject to appeal. As early as 1806, the New York Supreme Court, which was then the highest court of the state,(38) held in Blake v. Millspaugh(39) that a juror who had formed an opinion as to the controversy between the parties could be challenged, and that the denial of such a challenge could constitute error.(40) Seventeen years later, in Pringle v. Huse,(41) the court explicitly stated that a preconceived opinion provided grounds for a challenge for principal cause.(42) These rulings, however, were in civil cases,(43) and their applicability to criminal jury selection remained in doubt until the 1827 decision People v. Vermilyea.(44)

   In Vermilyea, a prospective juror, one Norwood, declared during voir dire that he knew the facts of the case and that he had formed an opinion as to the defendants' guilt.(45) Specifically, Norwood had attended a prior trial of the same defendants,(46) and stated that "if the evidence on the second trial should be the same as on the first, he should pronounce them guilty."(47) The trial court denied the defendants' challenge for cause, relying upon the English decision of The King v. Edmonds.(48) This decision was in keeping with other English decisions of its time, holding that a juror who had formed an opinion that the accused was guilty should not be discharged unless he also showed ill will.(49)

   The challenge in Vermilyea was appealed to the New York Supreme Court, where there was extensive discussion of English and American precedents during oral argument.(50) Under a New York constitutional provision that had considerably more relevance in 1827 than today, English decisions prior to 1775 had precedential effect in New York courts where they were consistent with the state constitution.(51) Thus, English decisions were cited as authoritative by both sides.(52) The result was a thorough examination, both by counsel and by the court, of the history of challenges for cause based on juror bias.

   Citing Blake v. Millspaugh(53) and Pringle v. Huse,(54) as well as the Federal treason trial of Aaron Burr before Chief Justice John Marshall,(55) the defense contended that it was established New York law that jurors who had formed an opinion concerning the defendant's guilt could be challenged for principal cause.(56) As to English precedent, it was argued that the Edmonds decision was inapplicable since it was decided after 1775,(57) and was based on a miscitation of an English treatise that in fact described the issue as unsettled.(58) In addition, defense counsel noted that a prior English decision had held that "if any of the jury had said [that the defendant] was guilty, or they would find him guilty, or he should suffer, or be hanged, or the like, they were not fit or proper men to be of the jury."(59) Finally, defense counsel invoked Sir Edward Coke's famous pronouncement that a juror must be "indifferent as he stands unsworne."(60) In any event, the defendants' attorney argued that "whatever may be the ancient or modern English practice, this court must be bound by the decisions of their own, and of other high American tribunals."(61)

   In opposition, the Attorney General, acting as prosecutor, admitted that "the case is one as to which an abundance of authority may be found on both sides."(62) Nevertheless, the prosecution argued that a challenge as fact-specific as one based upon a juror's preconceived bias was necessarily a challenge to the favor and was thus not subject to appeal.(63) In addition, it was argued, based on English precedent dating back to the seventeenth century,(64) that...