Jan08 Advo.pmd - e-archives Home

More documents

Recommendations

Info

REHABILITATING BIASED JURORS THE ADVOCATE Volume 30, No. 1 January 2008 There is simply no “magic question” such as, “Can you set aside what you have heard, your connection, your religious beliefs, etc., and make a decision based only on the evidence and instructions given by the Court?” Montgomery v. Commonwealth, 819 S.W.2d 713, 717-718 (Ky.1992). In Montgomery, the Court declared “the concept of ‘rehabilitation’ is a misnomer in the context of choosing qualified jurors and direct[ed] trial judges to remove it from their thinking and strike it from their lexicon.” Id. at 718. This basic principle has been repeatedly upheld by the Court. Hodge v. Commonwealth, 17 S.W.3d 824 (Ky.2000), Gill v. Commonwealth, 7 S.W.3d 365 (Ky.1999). Where potential jurors’ attitudes and past experiences created a reasonable inference of bias or prejudice, their affirmative responses to the “magic question” did not eradicate the bias and prejudice. Alexander v. Commonwealth, 862 S.W.2d 856, 865 (Ky.1993), overruled on other grounds. Once a potential juror expresses disqualifying opinions, the potential juror may not be rehabilitated by leading questions regarding whether she can put aside those opinions and be fair and impartial. Thomas v. Commonwealth, 864 S.W.2d 252, 258 (Ky.1993), overruled on other grounds (juror expressing strong opinion on death penalty). “Even where jurors disclaim any bias and state that they can give the defendant a fair trial, conditions may be such that their connection [to the case or the parties] would probably subconsciously affect their decision in the case.” Thomas at 255. See also Gamble v. Commonwealth, 68 S.W.3d 367 (Ky.2002) (juror expressing strong racial bias). The Kentucky Supreme Court has also held that the answers of prospective jurors “to leading questions, that they would disregard all previous information, opinions and relationships should not be taken at face value.” Marsch v. Commonwealth, 743 S.W.2d 830, 834 (Ky.1988) (emphasis added). “Mere agreement to a leading question that the jurors will be able to disregard what they have previously read or heard, without further inquiry, is not enough...to discharge the court’s obligation to determine whether the jury [can] be impartial.” Miracle v. Commonwealth, 646 S.W.2d 720, 722 (Ky.1983). PEREMPTORY STRIKES Legal Standard – In Thomas v. Commonwealth, 864 S.W.2d 252 (Ky.1993), the court established a bright line rule which required automatic reversal whenever a defendant had to use his peremptory strikes in order to remove jurors who should have been struck for cause. The premise of the rule was that a defendant is entitled to the free use of all his peremptories without having to use them on jurors who should have already been removed. This rule was abandoned in Morgan v. Commonwealth, 189 S.W.3d 99 (Ky.2006), overruling Thomas. However, Morgan was itself overruled on December 20, 2007 in Shane v. Commonwealth, 2007 WL 4460982 (Ky.2007), to be published, not yet final. So the Thomas rule is once again the law: being forced to use a peremptory challenge on a juror who should have been struck for cause is a denial of the full use of a defendant’s peremptory strikes and, as such, is reversible error per se. Number of - In District Court each side gets 3 peremptory strikes, in Circuit Court each side gets 8. KRS 29A.280(1) and RCr 9.40(1). Additional peremptories are required when alternate jurors are seated and also when codefendants are tried together. RCr 9.40(1),(2), and (3). When alternates are seated, there is one more strike per side and also one more per defendant. In addition, when co-defendants are tried together the defense gets one more defense strike for each co-defendant, to be exercised independently of any other defendant. 32 NOTES
THE ADVOCATE Volume 30, No.1 January 2008 So, for example, in a trial with two co-defendants and two alternate jurors, the peremptories would be distributed as follows: “per side” “per defendant” pros. def. co-def 1 co-def 2 normally 8 8 w/altern. 1 1 1 1 co-defs 1 1 As one can see on the chart: Each side starts with 8 peremptories. Since there are alternates, there is one more strike per side and also one more strike per defendant (the strikes per defendant are to be used independently). Lastly, since there are 2 co-defendants, each co-defendant gets one more strike apiece, to be also used independently of each other. That would give the Commonwealth 9 total peremptories and the defendants 13, in that trial. Springer v. Commonwealth, 998 S.W.2d 439 (Ky.1999). “[T]he basic entitlement to peremptory challenges under RCr 9.40(1) is eight for the Commonwealth and eight for the defense. If more than one defendant is being tried, the defendants are entitled to a total of ten peremptory challenges: eight to be exercised jointly pursuant to RCr 9.40(1), and one each to be exercised independently pursuant to RCr 9.40(3). If one or two additional (alternate) jurors are seated, the defendants are entitled to a total of thirteen peremptory challenges: nine to be exercised jointly pursuant to RCr 9.40(1) and (2); one each to be exercised independently pursuant to RCr 9.40(3); and an additional one each to exercised independently pursuant to RCr 9.40(2)....” Id., 444. The exception is that in cases with just a single defendant and alternate jurors, the defendant only gets one extra peremptory, like the prosecution, for a total of 9. The reasoning is that, if there are not multiple co-defendants, there is no “side,” but rather just the single defendant. Stopher v. Commonwealth, 57 S.W.3d 787 (Ky.2001), Furnish v. Commonwealth, 95 S.W.3d 34 (Ky.2002). Practice Tip: You must object to not getting your correct number of peremptories. Failure to give the correct number of peremptories is grounds for automatic reversal. The objection is waived, however, once the jury is sworn. Springer v. Commonwealth, 998 S.W.2d 439 (Ky.1999), Commonwealth v. Young, 212 S.W.3d 117 (Ky.2006). BATSON CHALLENGES The Equal Protection Clause of the 14 th Amendment prohibits the discriminatory use of peremptory strikes in order to exclude members of a cognizable minority from participation in jury service. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Batson applies to both prosecutors and defendants. Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992), Wiley v. Commonwealth, 978 S.W.2d 333 (Ky.App.1998). “[A] criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same race.” Powers v. Ohio, 499 U.S. 400, 401, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). Batson challenges can also be made to peremptory strikes which are discriminatory on the basis of gender. J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), Wiley v. Commonwealth, 978 S.W.2d 333 (Ky.App.1998). (Hannan v. Commonwealth, 774 S.W.2d 462 (Ky.App.1989), which says that Batson does not apply to gender discrimination in the use of jury strikes, was decided before J.E.B.) 33 NOTES
Page 1 and 2: The Advocate Journal of Criminal Ju
Page 3 and 4: DPA TRIAL LAW NOTEBOOK Table of Con
Page 5 and 6: BIFURCATION THE ADVOCATE Volume 30,
Page 7 and 8: COMMONWEALTH, GENERALLY THE ADVOCAT
Page 9 and 10: THE ADVOCATE Volume 30, No.1 Januar
Page 17 and 18: MOTIONS IN LIMINE THE ADVOCATE Volu
Page 31: Juror Has A Close Relationship With
Page 35 and 36: CHECKLIST FOR STRIKING JURORS THE A
Page 37 and 38: ANNOUNCING “READY” THE ADVOCATE
Page 39 and 40: PROSECUTION WITNESSES THE ADVOCATE
Page 43 and 44: 43 THE ADVOCATE Volume 30, No. 1 Ja
Page 45 and 46: CROSS-EXAMINATION THE ADVOCATE Volu
Page 55 and 56: IMPROPER CLOSING ARGUMENTS, EXAMPLE
Page 59 and 60: DEADLOCK, THE “ALLEN CHARGE” TH
Page 67 and 68: THE ADVOCATE Volume 30, No. 1 Janua
Page 75 and 76: GUIDE TO KENTUCKY SENTENCING LAW AG
Page 77 and 78: PROBATION ELIGIBILITY THE ADVOCATE
Page 81 and 82: 1 2 3 4 5 6 7 8 9 10 11 12 In anoth
Page 83 and 84:
THE ADVOCATE Volume 30, No. 1 Janua
Page 85 and 86:
Photographs The witness is familiar
Page 87 and 88:
TO JURY SELECTION A. Batson issues.
show all

Jan08 Advo.pmd - e-archives Home

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?