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Implied Bias Of Prospective Jurors And Challenging A Juror For Cause

People v. Furey 2011 NY SLip Op 09000

Decided New York Court of Appeals December 15, 2011

See also Dismissing a Prospective Juror and

Limiting Time For Jury Selection May Be Reversible Error and

Judge’s Duty To Ask Follow Up Questions During Jury Selection

Issue: Whether a prospective juror that knew several witnesses could be excluded for cause even though the prospective juror stated that she could be fair and give the testimony of the people she knew no greater weight than any other witness.

Holding: County Court abused its discretion as a matter of law when it denied defendant’s for-cause challenge to a prospective juror who had personal and professional relationships with several of the witnesses expected to testify at defendant’s trial.

Facts: Furey was charged with committing burglary, kidnapping and other offenses.     The wife of a captain on the investigating police force reported to County Court for jury duty and was picked to be on the panel of prospective jurors in this case.

During voir dire, Mrs. Comerford (Captain Comerford’s wife) was interviewed as a prospective juror. She acknowledged being familiar with some of the individuals who were listed as possible prosecution witnesses since they worked with her husband in the Oswego Police Department. With regard to two specific police witnesses, Mrs. Comerford informed the court that she knew them both professionally and personally.  County Court inquired whether Mrs. Comerford could consider the two officers’ “testimony in the same fashion and in the same light as any other witness or would you give their testimony greater or lesser consideration or subject their testimony to different tests of credibility because you know those witnesses?” She replied “I believe I can be fair” and agreed that she “would look at their testimony in the same fashion.”  In total, Mrs. Comerford was acquainted with eight of the 14 witnesses identified by the People.

The defense moved to dismiss Mrs. Comerford for cause. The People objected, relying on her statements that she would not give preferential treatment to the testimony of the witnesses she knew. County Court denied the for-cause challenge, explaining that Mrs. Comerford “indicated that she knows nothing about the facts and circumstances of this case and through her husband she knows who many of the People’s witnesses are potentially and she would treat them the same as any other witnesses.” Defendant then used a peremptory challenge to remove Mrs. Comerford from the panel and subsequently exhausted his allotment of peremptories.

Defendant was convicted of second-degree kidnapping, second-degree burglary and other offenses. He was sentenced to an aggregate term of 5½ years imprisonment and five years of postrelease supervision.

Legal Analysis: A prospective juror may be challenged for cause on several grounds, one of which is a preexisting relationship with a potential witness that “is likely to preclude [the prospective juror] from rendering an impartial verdict”. This is referred to colloquially as an “implied bias” and requires automatic exclusion from jury service regardless of whether the prospective juror declares that the relationship will not affect her ability to be fair and impartial.

Such bias, whether acknowledged by the declarant or not, cannot be cured with an expurgatory oath. “[T]he risk of prejudice arising out of the close relationship . . . [is] so great that recital of an oath of impartiality could not convincingly dispel the taint” (Branch, 46 NY2d at 651) and create the perception that the accused might not receive a fair trial before an impartial finder of fact. For this reason, we have advised trial courts to exercise caution in these situations by leaning toward “disqualifying a prospective juror of dubious impartiality”

The frequency of contact and nature of the parties’ relationship are to be considered in determining whether disqualification is necessary.

We conclude that Mrs. Comerford’s familiarity with numerous witnesses satisfied the implied bias standard under CPL 270.20 (1) (c), necessitating her removal for cause. Mrs. Comerford forthrightly disclosed that she knew eight of the witnesses  who were to testify at trial — more than half of the People’s potential witnesses — and had frequent professional and social relationships with at least two of the police officers. Although Mrs. Comerford offered unequivocal assurances of impartiality, those declarations were ineffective in a case like this because there was a considerable risk that she could unwittingly give undue credence to the witnesses she knew and her service would give rise to the perception that defendant did not receive a fair trial. It was therefore an abuse of discretion as a matter of law to deny defendant’s challenge for cause.

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.