This article originally appeared in Volume 17, Issue 1 of the Defense Research Institute’s (DRI) “Certworthy – The Newsletter of the Appellate Advocacy Committee.” The original article can be found here.
Parties are entitled to full and accurate responses to their voir dire questions to help them make informed decisions in challenging jurors for cause and in exercising their peremptory strikes. When jurors fail to answer questions correctly, parties are denied that right, but such failures do not automatically entitle a party to a new trial. In fact, more often than not, a motion for new trial or an appeal asserting “misconduct” by a juror in failing to provide accurate and complete information in voir dire will be denied. No matter how interesting the subject matter and no matter how much the judge may like the parties and their counsel, most judges simply do not want to retry a case unless it is absolutely necessary, and the applicable standards provide courts ample bases upon which to conclude that a new trial is not required.
Success in obtaining a new trial based on juror misconduct in failing to disclose information in voir dire is largely dependent upon the skill and diligence of trial counsel in examining the jury venire. While appellate counsel may be able to assure that the issues are presented in the most favorable light and that the appropriate proof is timely presented, by the time appellate counsel is usually consulted, the best opportunities to affect the result have long past. For that reason, it is crucial that trial counsel understand – before striking the jury- the pivotal points affecting juror misconduct issues. That understanding will both increase the likelihood of obtaining accurate and complete information in voir dire and put trial and appellate counsel in the best position to seek relief if inaccurate or incomplete information is provided.
The Standard on Appeal
Trial courts are generally vested with broad discretion in determining issues regarding juror qualification and misconduct. As a result, a trial court’s rulings on qualification and misconduct issues ordinarily will not be disturbed on appeal absent a clear abuse of discretion – a tough standard to meet under the best of circumstances.
The Standards for New Trial
A timely and properly supported motion for new trial is generally required to preserve the issue of juror misconduct in failing to properly respond to voir dire, but courts apply widely varying standards in determining whether a new trial is warranted in such circumstances. Some courts grant a new trial only if the nondisclosure was intentional, while others view the juror’s intent or lack of intent as irrelevant. Compare Berry v. St. Paul Fire & Marine Ins. Co., 944 S.W. 2d 838, 841 (Ark. 1997) with State v. Thomas, 830 P.2d 243, 246 (Utah 1992). A third approach is to apply different standards depending on whether the failure to disclose was intentional or inadvertent. See Brines v. Cibis, 882 S.W.2d 138, 140 (Mo. 1994).
Approaches also vary regarding the type and degree of prejudice that must be shown to support a new trial. In federal court, the movant must prove that a correct response would have provided a valid basis for a challenge for cause. McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984). Because the right to the intelligent exercise of peremptory challenges is not deemed to be of constitutional magnitude, the failure to disclose accurate information is considered harmless if truthful disclosure would not have resulted in removal of the juror for cause. Id. at 549.
Many state courts approach the issue differently. Some courts will grant a new trial when a truthful response would have supported even a peremptory challenge. State v. Kelly, 502 S.E. 2d 99, 106 (S.C. 1998)(new trial required if information intentionally concealed would have supported a challenged for cause or would have provided a basis for a peremptory challenge); Robinson v. Safeway Stores, Inc., 776 P.2d 676, 679 (Wash 1989)(new trial required when juror’s inaccurate responses prevent the intelligent exercise of litigant’s right to exercise a peremptory challenge). Other courts apply a probable prejudice standard, allowing a new trial if the moving party might have been prejudiced by the nondisclosure. Union Mortgage Co. v. Barlow, 595 So. 2d 1335, 1342 (Ala. 1992)(“The proper inquiry on a motion for new trial based on improper or nonexistent responses to voir dire questions is whether the response or lack of response resulted in probable prejudice to the rights of the movant.”). Others have concluded that a juror’s intentional failure to disclose material information raises a presumption of prejudice that must be rebutted by the opposing party to avoid a new trial. See People v. Blackwell, 191 Cal.App.3d 925, 930 (1987). At least one court applies a per se rule; so long as counsel exercises due diligence, a new trial is required whenever a juror fails to disclose material information that prevents counsel from exercising informed judgment during jury selection. See De La Rosa v. Zequeira, 659 So. 2d 239 (Fla. 1995).
Although the applicable standards differ depending on the jurisdiction, every jurisdiction considers, in one manner or another, the materiality of the matter inquired about and the due diligence of counsel. Trial courts seem to manipulate these factors to justify denial of requests for new trials based on jurors’ failures to disclose information in voir dire. Consequently, counsel can increase their chances of obtaining post-judgment relief by honing in on these factors and thereby removing likely excuses for denying relief.
Some courts consider the materiality of the withheld information in determining prejudice and others consider materiality as a threshold requirement, but all courts require that information be material before a new trial will be granted based on its nondisclosure. If the information is not deemed material, interest in the finality of the judgment outweighs any perceived unfairness to a party in jury selection. See generally, David Crump, Peremptory Challenges After McDonough Power Equipment, Inc. v. Greenwood: A Problem of Fairness, Finality, and Falsehood, 69 Or. L. Rev. 741 (1990). Again, standards vary, but to be “material” the concealed information generally must tend to support a challenge for cause in jurisdictions following the federal standard and must be relevant to a peremptory challenge in jurisdictions that allow relief based on the impairment of the right to informed exercise of peremptory challenges.
Because peremptory challenges can be based on virtually any non-discriminatory ground, any undisclosed information could arguably be relevant to a peremptory challenge. For this reason, some courts limit the availability of a new trial by applying an objective standard in assessing the concealed information – that is, whether reasonable counsel under the same circumstances would have exercised a peremptory strike to remove the juror had the information been disclosed. See State v. Thompson, 361 A.2d 104, 107 (N.J. Super. 1976). Other courts examine whether the information is of such a character that a presumption of prejudice or bias would naturally arise; still others consider only whether the information might tend to suggest bias. See Decker v. State, 717 S.W. 2d 903, 907 (Tex. Crim. App. 1983).
Regardless of the standard, however, courts tend to construe the materiality factor extremely narrowly to avoid the need to grant a new trial. Consequently, it is crucial that counsel articulate their questions in a manner that responsive information can be shown to be directly relevant to the determination of whether a potential juror can be fair and impartial.
In determining whether a new trial is warranted, all courts also consider whether the moving party has exercised due diligence. Two distinct diligence requirements are universally imposed: (1) diligence in bringing potential issues to the court’s attention at the earliest opportunity and (2) diligence in discovering information regarding the potential jurors.
Due diligence in bringing matters to the court’s attention. It should come as no surprise that counsel cannot wait until an unfavorable verdict is returned and then raise a ground of juror misconduct that was discovered prior to or during trial. Generally, counsel’s failure to timely challenge a juror on any basis of potential disqualification that is known (or through due diligence should be known) results in waiver. See, e.g.,Apple, Inc. v. Samsung Electronics Co. LTD,2012 WL 654785 (N.D. Cal. 2012)(Samsung waived its claim that juror lied about his involvement in litigation against a company that was partially owned by Samsung because Samsung could have discovered that fact with reasonable diligence based on information disclosed in voir dire). Even when a party learns of a ground of potential disqualification after the jury is seated, the issue is waived if the party fails to raise it immediately. See Eaton v. Horton, 565 So. 2d 183, 185 (Ala. 1990)(failure to investigate and raise issue when defendant learned during the course of trial about a pending lawsuit involving a juror’s company constituted waiver); McGlone v. Superior Trucking Company, Inc., 363 S.E.2d 736, 746 (W.Va. 1987)(juror’s failure to disclose acquaintance with defense counsel was waived by plaintiff’s failure to immediately raise the issue when it came to light during closing arguments).
Due diligence in discovering information. The law is clear in most jurisdictions that the failure to use due diligence in testing jurors as to qualifications or grounds of challenge is an effective waiver of those grounds of challenge. In some jurisdictions that is true even if the basis of disqualification is statutory. See, e.g., State v. Bongalis, 180 W.Va. 584, 378 S.E.2d 449 (1989)(where there is a statutory or common law basis for disqualification, a party must avail himself of the opportunity to explore the potential disqualification or he may be deemed not to have exercised reasonable diligence). Exactly what constitutes due diligence, however, is not always clear.
At its most basic, due diligence requires that counsel explore and follow up on all areas relevant to the jurors’ qualifications and potential biases. Venire members are not required to volunteer information that is not specifically requested, so if a party fails to inquire specifically about a matter during voir dire, he has no basis to complain thereafter if a juror fails to disclose information regarding that matter.
Unfortunately, counsel’s ability to fully explore all areas potentially relevant to the qualifications and biases of the jurors is sometimes limited by the court. Even when specific limitations are not imposed, if plaintiff’s counsel has conducted lengthy voir dire, the judge and the venire members may grow impatient with what they view as redundant or unnecessary questions, and defense counsel may be tempted to forego certain areas of inquiry. A party who chooses not to explore relevant subject areas or relies upon the examination by the court or the opposing party does so at his peril, however. See GMC v. Hooper, 681 So. 2d 1273, 1374 (Ala. 1996)(noting that while counsel was not required to conduct voir dire examination that was repetitious of that conducted by the court, the ground of challenged could have been discovered before trial as easily as it was after trial and was therefore waived); Lopez v. State, 769 P.2d 1276, 1291 (Nev. 1989)(defendant was not entitled to a new trial based on the failures of two jurors to disclose they had been victims of sexual abuse in response to the court’s inquiry regarding whether any juror had been a victim of any crime because counsel could have followed up by asking specifically about sexual abuse). Responses to juror questionnaires are treated no differently than responses to voir dire questions, and failure to follow up on questionnaire responses also waives any objection counsel might have to any incorrect or incomplete responses. See, e.g., Taylor v. Pub. Health Trust of Dade Cty., 546 So. 2d 733, 734 (Fla. Dist. Ct. App. 1989)(denying motion for new trial where juror failed to disclose prior lawsuits on juror questionnaire but counsel failed to explore the issue in voir dire). Even if not deemed a waiver, courts may conclude that if a subject was not significant enough for a party to ask about, the party could not have been prejudiced by the failure of a juror to disclose information on the subject. So, the lesson here is that counsel must find a way to explore all areas that are relevant to a juror’s service under the circumstances of the case.
Due diligence also requires that counsel exercise a high degree of specificity and precision in examining the jury venire. Courts utilize lack of specificity to avoid granting a new trial, readily attributing jurors’ nondisclosures to counsel’s failure to articulate a question in a clear and precise way. See, e.g., U.S. v. Estey, 595 F.3d 836, 841 (8th Cir. 2010), cert. denied, 560 U.S. 933 (2010)(“defendant is not entitled to a new trial when any problem with a juror’s answer during voir dire was caused by the poor quality of the question asked.”) Courts also tend to excuse jurors’ failures to disclose by citing their misunderstanding of the question or the ambiguity of the question. Indeed, the case law is replete with examples of voir dire questions that courts have found to be ambiguous or to not clearly require a response from a juror who is later claimed to have withheld information. See, e.g., Commonwealth v. Didyoung, 535 A.2d 192, 193 (Pa.Super. 1988)(excusing juror’s failure to disclose because “family” and “immediate family” were ambiguous and could mean different things to different people); Willison v. Ard, 611 So. 2d 274, 277 (Ala. 1992)(the phase “a lawsuit for damages” could reasonably be interpreted by a jury as excluding collection case). Thus, to limit the court’s opportunity to excuse juror’s nondisclosures, counsel must carefully formulate questions that are easily understood, unambiguous and specific enough to demand an express response from the jurors.
If counsel has reason to suspect that a juror has failed to provide accurate information in voir dire, due diligence requires that additional investigation must be made. Where counsel could have elicited the desired information or cleared up any doubts by asking follow up questions, courts conclude that due diligence is lacking and that any argument for new trial based on that matter has been waived. See In re Nash, 614 A.2d 367, 371 (Vt. 1991)(juror’s evasive answer put lawyer on notice of issue and his failure to pursue the matter further waived the issue); Vivion v. Brittain, 510 P.2d 21, 25 (Wyo. 1973)(lawyer should have known of juror’s prior involvement in litigation in which lawyer’s firm was involved.)
Information about venire members is now just one Google search away. That reality may place a higher burden on lawyers conducting voir dire. Does due diligence require that lawyers investigate the jurors before (or during) trial to locate criminal convictions, prior lawsuits, social media posts, and the like? The answer depends on the jurisdiction. However, courts around the country are increasingly less likely to grant a new trial based upon juror disqualifications that could have been discovered before trial with a simple internet search. In fact, some jurisdictions have imposed new standards of diligence that requireonline research during the voir dire process. See Johnson v. McCullough, 306 S.W. 3d 551 (Mo. 2010) (counsel must “use reasonable efforts to examine the litigation history on Case.net of those jurors selected but not empanelled and must present to the trial court any relevant information prior to trial.”); Mo. Sup. Ct. R. 69.025(c)(the trial court “shall give all parties an opportunity to conduct a reasonable investigation as to whether a prospective juror has been a party in litigation”). Such diligence requirements may soon be expanded to include websites like Facebook, LinkedIn, and Twitter, as well as other information publicly available online. See Sluss v. Commonwealth of Kentucky, 381 S.W.3d 215, 229 (Ky. 2012) (ultimately concluding that counsel’s failure to investigate potential jurors’ Facebook accounts was excused, since the jurors’ potentially false answers during voir dire had given him “little reason to think he needed to investigate” the Facebook accounts). In fact, some commentators have suggested that it may be malpractice not to conduct internet research regarding potential jurors. See Thaddeus Hoffmeister, Investigating Jurors in the Digital Age: One Click at A Time, 60 U. Kan. L. Rev. 611, 630-31 (2012).
Arguments that due diligence requires counsel to explore electronic and other publicly available information about venire members will likely gain momentum as more and more information becomes easily accessible. Certainly, prudence dictates that trial counsel fully understand a jurisdiction’s then-current requirements regarding internet research of potential jurors to assure they act with due diligence to timely discover relevant information that would disqualify a juror.
If identifying good jurors (or removing bad ones) is key to a good result at trial, and if getting full and complete information in voir dire is key to identifying “good” and “bad” jurors, counsel should focus on (1) formulating the most precise questions possible with respect to all relevant and material areas of inquiry so as to require a response from the venire members and (2) exercising diligence in uncovering information to timely challenge the jurors. Obtaining post judgment or appellate relief based on a juror’s failure’s to respond to voir dire questions is challenging, to say the least. By making the proper inquiries on the front end, however, trial counsel may actually get all the information needed to strike that ideal jury – or at least put appellate counsel in the best position to seek post judgment relief if he does not.