Understanding Jury Selection

Jury selection in Colorado and across the country can be the single most important part of any criminal trial. Uncovering jury bias is critical to selecting a defendant friendly panel of jurors.

Jury selection, also known as voir dire, is intended to expose those jurors who can hurt your case. It is a tool to identify jurors who may hold overt or sometimes covert biases which run contrary to the defense theory of the case.

While voir dire proceeds the lawyers have the option of attempting to remove a juror who is biased “for cause.” This means that the juror can be removed without using the limited number of assigned jury selection strikes known as “peremptory challenges.” Peremptory challenges are challenges which can remove a juror without a stated reason.

Challenging a juror “for cause” means the juror is “not legally qualified” to act as a empaneled juror in this case. Removal for cause is is difficult. The lawyers must persuade a judge that the juror has an “actual bias.” Actual bias means the juror’s belief system or state of mind “would interfere with his or her ability to try the issue impartially and without prejudice to the substantial rights of a party.”

What follows is a description by the Colorado Court of Appeals as to the meaning of “bias.”

There can be no question that the trial court must grant a challenge for cause directed to a prospective juror who is unwilling or unable to accept the basic principles of law applicable to a criminal trial and to render a fair and impartial verdict based upon the evidence admitted at trial and the instructions of law given to the jury by the court.

It is the law in Colorado that the Trial Judge is in the best position to determine whether a juror is unable to serve. Simply put the Judge has the ability to view the demeanor of the jury under questioning of the parties to the case and the judge him or herself. Before a judge’s exercise of this wide latitude of trial court discretion will be reversed on appeal the court record must affirmatively demonstrate that the trial court abused that broad discretion .

It may seem clear to the ordinary citizen that a new trial would be required if a juror conceals important information that may make that juror removable for cause that is to excused by the lawyers because of a bias that could hurt their side of the case. However, it is not that simple.

Jurors answer questions under oath. A Trial Judge gives considerable weight to a juror’s assurances that he or she “can fairly and impartially” try this case according to the law and to the facts. A Judge will ask a juror whether he or she “can put aside” any pre-held opinions and be fair and impartial in this case.

If a juror mistakenly inadvertently fails to disclose important information, the Defendant must prove that the undisclosed fact demonstrates “actual bias for the prosecution or against the defendant.” This is an important aspect of the challenge to the fairness of the trial because, if the Defendant can show a bias, even if the bias is not a ground for a challenge for “cause” (see below), the Defendant can establish that he would have used a peremptory challenge to replace the biased juror with an alternate juror.

If the non-disclosure is one where a juror deliberately misrepresents or knowingly conceals information relevant to a challenge for cause, the violation of due process is more egregious in the eyes of the law and the expected remedy to be exercised by the Trial Judge should be more drastic a possible mistrial or at least the removal of the juror.

To help in the analysis of whether a juror’s failure to disclose information is important enough to take action Colorado Trial Judges consider the following “FIVE factor analysis:

1. the juror’s assurances of impartiality;
2. the nature of the undisclosed information;
3. whether the juror deliberately withheld the information;
4. the prejudice to either party that the non-disclosure caused, including the defendant’s right to exercise peremptory challenges; and
5. the practical remedies available when the information is revealed.

IF the trial judge finds from this analysis that bias existed and was withheld, then the Trial Judge will exercise it’s discretion and replace the biased juror with an alternate juror (if that is still possible during the stage in the case) when the discovery is made.

Depends. In small communities many jurors may know one or more of the witnesses. Colorado law maintinas that “ absent a showing that a juror’s prior acquaintance with a witness created an actual bias” the Courts assume that the juror can follow the jury instructions and decide a case solely on the basis of the evidence and the law.

In larger communities, with an abundance of panel jurors available, the preferred procedure is to excuse the juror.

Generally, a juror’s acquaintance with a witness that is only minimal is believed not to affect his or her ability to weigh the credibility of that witness.

A criminally accused has a right to a fair trial by a panel of impartial jurors.

The Colorado law read to jurors in every criminal trial to help exclude biased jurors is Section 16-10-103(1), which provides as follows:

1. The court shall sustain a challenge for cause on one or more of the following grounds:
   1. Absence of any qualification prescribed by statute to render a person competent as a juror;
   2. Relationship within the third degree, by blood, adoption, or marriage, to a defendant or to any attorney of record or attorney engaged in the trial of the case;
   3. Standing in the relation of guardian and ward, employer and employee, landlord and tenant, debtor and creditor, or principal and agent to, or being a member of the household of, or a partner in business with, or surety on any bond or obligation for any defendant;
   4. The juror is or has been a party adverse to the defendant in a civil action or has complained against or been accused by him in a criminal prosecution;
   5. The juror has served on the grand jury which returned the indictment, or on a coroner’s jury which inquired into the death of a person whose death is the subject of the indictment or information, or on any other investigatory body which inquired into the facts of the crime charged;
   6. The juror was a juror at a former trial arising out of the same factual situation or involving the same defendant;
   7. The juror was a juror in a civil action against the defendant arising out of the act charged as a crime;
   8. The juror was a witness to any matter related to the crime or its prosecution;
   9. The juror occupies a fiduciary relationship to the defendant or a person alleged to have been injured by the crime or the person on whose complaint the prosecution was instituted;
   10. The existence of a state of mind in the juror evincing enmity or bias toward the defendant or the state; however, no person summoned as a juror shall be disqualified by reason of a previously formed or expressed opinion with reference to the guilt or innocence of the accused, if the court is satisfied, from the examination of the juror or from other evidence, that he will render an impartial verdict according to the law and the evidence submitted to the jury at the trial;
   11. The juror is a lawyer or a compensated employee of a public law enforcement agency.

The above statute provides the legal basis for challenging a juror for cause. If a Colorado criminal lawyer believes there are grounds to challenge a potential juror for cause, that lawyer must clearly state the particular ground on which the challenge for cause is made. It is at that point that the opposing lawyer can ask questions of that juror to determine whether the challenge for cause can be established.

If the Colorado criminal defense lawyer can establish that a juror has formed an opinion about the guilt or innocence of the defendant and is incapable of setting that opinion aside, a challenge for cause must be sustained. A juror who refuses to agree that he or she is biased on the ultimate issue of the case guilt or innocence is NOT neutral and detachedand can never deliberate the case as a fair and impartial fact finder.

Jurors withhold information. That is a fact. On average one in four jurors expresses bias. Jurors view the world eyes that are impacted by the strange environment that is jury selection. For most jurors their entry is the first time they have ever been in a courtroom. They are asked to talk about their personal experiences in an open public location. Jurors seek to create a favorable impression in the eyes of their fellow jurors.

Of course under these circumstances jurors are loathe to admit they do not have the ability to be fair and impartial or to follow the law. Thus jurors often tell their questioners what they think the lawyers and the judge want to hear.

Withholding information or failing to answer questions would be a serious breach of the juror’s oath. If a juror forgets and later remembers information concerning a critical question asked voir dire, that juror is under a duty to bring this information immediately to the attention of the trial judge.

A mistrial may result if the juror fails to disclose key information that reflects some form of bias to the judge’s attention. The need to retry a case is not only wasteful of precious court time, the expense to the defendant may be prohibitive.

If jurors are forthright and honest during jury selection Colorado criminal lawyer’s job to make certain that juror CAN and WILL BE FAIR AND IMPARTIAL TO THEIR CLIENT becomes much more certain.

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Never stop fighting never stop believing in yourself and your right to due process of law.

ABOUT THE AUTHOR: H. Michael Steinberg Email The Author at [email protected] A Denver Colorado Criminal Defense Lawyer or call his office at 303-627-7777 during business hours or call his cell if you cannot wait and need his immediate assistance 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

You must make a responsible choice for a Colorado Criminal Defense Lawyer we encourage you to look at our firm. Over the last 30 plus years H. Michael has mastered nearly every area of criminal law, procedure and trial and courtroom practice and he is passionate about getting you the best result in your case. He has written and continues to write extensively on Colorado criminal law and he hopes this article helps you in some small way. H. Michael hopes you found this page helpful Colorado Criminal Law Understanding Jury Selection Jury Non-Disclosure Or Bias.