Friday, February 5, 2010
All challenges, whether for cause or peremptory, should be addressed to the court outside of the presence of the jury, in a manner so that the jury panel is not aware of the nature of the challenge, the party making the challenge, or the basis of the court's ruling on the challenge.
Conversely, "[s]everal jurisdictions have determined that whether challenges for cause are made and argued in open court is a matter of discretion left to the trial court." In its recent opinion in People v. Flockhart, 2009 WL 4981910 (Colo.App. 2009), the Colorado Court of Appeals agreed with the ABA. I agree based upon the reasons cited by the court as well as Federal Rule of Evidence 606(a).
In Flockhart, Rhoderick T. Flockhart was convicted of possession of marijuana and distribution of marijuana. Before trial, defense counsel informed the judge that he planned to challenge several prospective jurors for cause, and the judge informed him that such challenges would be conducted in front of all of the prospective jurors. Without objection, defense counsel proceeded to challenge the prospective jurors for cause, and "[t]he court questioned the challenged jurors until it was satisfied they could be fair and impartial, and then denied the challenges."
After Flockhart was convicted, he appealed, claiming, inter alia, that the court should not have heard argument on challenges for cause in front of the prospective jurors. The Colorado Court of Appeals noted the split between court following the aforementioned ABA approach and courts leaving the matter to the discretion of the trial court. The court then agreed with the ABA approach, first noting that
The ABA Commentary to Standard 15-2.7 explains that statements made by counsel in the course of a challenge may offend a challenged juror and might tend to bias that juror against the challenging counsel and his client.
The court then noted that
Likewise, the Virginia Court of Appeals found that where the trial judge stated in a juror's presence that defense counsel was challenging him for cause and then heard the prosecution's response to the challenge in front of the juror, the procedure "created the possibility of bias in the mind of the juror against the defendant, where bias may not have previously existed."
While the court thus adopted the ABA approach, it nonetheless affirmed Fockhart's conviction, finding that he failed to object to the court's procedure, meaning that he had to establish plain error. And it found that he could not establish such error because "the bases for the challenges [were not] so obviously inflammatory as to raise a presumption that bias resulted." (Unfortunately, the court didn't explain the bases for Flockhart's challenges for cause).
I agree with the ABA approach. As I argued in my recent article, Dismissed with Prejudice,
requiring criminal defendants to inquire into the biases of prospective jurors would be fundamentally unfair because such questions could easily inject race into trial as a primary issue and alienate jurors who might feel implicitly accused of harboring said bias. [FN477]
[FN477] See Butler v. Hosking, No. 93-5976, 1995 WL 73132, at *9 (9th Cir. 1995) (“[C]ounsel may have wished to avoid implicitly accusing potential jurors of racism or expressly injecting race into the trial as a primary issue.”); Leading Cases, supra note 476, at 247 (“A lawyer cannot easily inquire into a potential juror's biases without insulting or alienating that person, onlooking jurors or prospective jurors.”).
There is, however, another reason that I agree with the ABA approach. Federal Rule of Evidence 606(a) provides that
A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.
If a party must be afforded the opportunity to object to juror testimony outside the presence of the jury, why shouldn't a party be afforded the opportunity to challenge prospective jurors outside the presence of the prospective jury? Moreover, some states, like Colorado, have versions of Federal Rule of Evidence 606(a) which do not even require an objection to jury testimony to preserve the issue for appeal. For instance, Colorado Rule of Evidence 606(a) provides that
A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. No objection need be made in order to preserve the point.
In states where parties don't even have to object to jury testimony based upon fears about how the jury would react, surely parties must be allowed to challenge prospective jurors outside the presence of the prospective jury.