EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, August 29, 2012

A Certain Relation: 3rd Circuit FInds Only "Close Relatives" Of Principles Need To Be Excluded As Jurors

It is well established that a juror cannot be seated if the juror is some degree of relation to one of the principle in the case, i.e., a party or an attorney. But how closely related does the jurors need to be to a principle for the seating of that juror to automatically mean that the opposing party was denied the right to a trial by an impartial jury? That was the question addressed by the Third Circuit in United States v. Mitchell, 2012 WL 3171563 (3rd Cir. 2012).

In Mitchell, Ricardo Mitchell appealed from his conviction on charges related to his possession of a firearm with an obliterated serial number. During voir dire, the judge asked prospective jurors if anyone was related by blood, business, or marriage to the prosecutor, prompting the following exchange with Juror No. 28: 

Juror 28: He's my blood relative.
The Court: How is he related to you?
Juror 28: By father side.
The Court: What is his relation to you?
Juror 28: Cousin.
The Court: All right. Is there anything in that relationship that would—are you a close cousin or a distant cousin?
Juror 28: Close. But I don't think that have anything to do with it.
The Court: All right. Is there anything in that relationship that would prevent you from following my instructions on the law?
Juror 28: No, Your Honor.
The Court: Is there anything in that relationship that would prevent you from listening to the evidence in this case fairly and impartially?
Juror 28: No, Your Honor.
The Court: All right. Thank you.

After he was convicted, Mitchell appealed, claiming that the seating of Juror No. 28 (as well as Juror No. 97, who was a co-worker of key witnesses in the case) denied him of his right to an impartial jury.

In resolving this issue, the Third Circuit cited the Justice O'Connor's concurrence in Smith v. Phillips, 455 U.S. 209 (1982), in which she stated that those "extreme situations" able to "justify a finding of implied bias" include

a revelation that the juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction. 

The Third Circuit latched onto this "close relative" language and found that

Our Court has not considered the parameters of the kinship category. The touchstone of the inquiry, as previously discussed, is whether the average person in the position of the juror would be prejudiced and feel substantial emotional involvement in the case. In view of that inquiry, we reject the most expansive formulations that categorically presume bias whenever a juror shares any degree of kinship with a party in a case. A distant relative, on average, is unlikely to harbor the sort of prejudice that interferes with the impartial discharge of juror service. On the other hand, the bond between close relatives is intimate enough, on average, to generate a stronger likelihood of prejudice, whether unconscious or intentionally concealed....

In adopting the "close relative" standard, we are concerned both with the right of the defendant to an impartial jury and with preservation of the appearance of justice in the courts....If the seating of a party's relative as a juror would lodge serious doubts in the public's mind about the neutrality of the proceedings, that consideration favors legal attribution of bias. Public confidence in the fairness of the proceedings would suffer if a trial court permitted a juror to deliberate and pass judgment in a case in which her close relative labored as prosecutor to procure a conviction or faced years in prison and the moral and societal condemnation that accompanies a criminal conviction. We cannot say the same for distant relatives, whose relationship is sufficiently attenuated so as not to undermine the appearance of fairness in judicial proceedings.

That said, the Third Circuit found that it had "only a bare-bones description of Juror 28's relationship to the prosecutor" and thus remanded for further factfinding.



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In Michigan, where I practice, the state court rules exclude people related within the ninth degree of consanguinity or affinity. Basically, it covers all fourth cousins and nearer relations, without getting into the "x times removed in the ascendency/descendency" aspect of things.

Posted by: Greg Jones | Aug 30, 2012 7:52:13 AM

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