PRACTICE AND PROCEDURE

JURY SELECTION - PART II

William F. Gallagher

Editors' Note: Jury Selection - Part I appeared in the November/December 1994 Forum, 12 Forum No. 6, p. 41.

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VII. Requirement of Judge to Sit on Bench During Voir Dire.

In State v. Lopez, 34 Conn. App. 717, cert. dismissed 230 Conn. 910 (1994), relying on its decision in State v. Patterson, 31 Conn. App. 278, cert. granted 227 Conn. 901 (1993), the court reversed the judgment and ordered a new trial. The state requested the Appellate Court to withhold opinion on the issue until the Supreme Court had the opportunity to review the issue in the certified appeal in State v. Patterson, and then to order supplemental briefs after the Supreme Court announced its decision. The Appellate Court declined to follow this procedure, and announced its decision on June 21, 1994.

On July 26, 1994 the Supreme Court reversed the per se error holding of the Appellate Court in Patterson, and held that the failure of the trial judge to remain on the bench during voir dire was waived by the defendant. However, under its supervisory powers, it held that henceforth trial judges must stay on the bench during voir dire in criminal trials. State v. Patterson, 230 Conn. 385, 397 (1994), and that this duty in the future is non-waivable. 230 Conn. at 400.

In the Appellate Court decision, Judges Lavery, Landau and Freedman held that a trial judge's absence from the courtroom during voir dire in a criminal trial was per se reversible error.

The issue raised by the defendant on the appeal was whether the trial court had improperly concluded that the state did not discriminatorily employ a peremptory challenge to exclude a black venireperson from the jury. The Appellate Court did not reach the merits of this issue because it held that it was not possible to review the claim when the trial court was not in a position to make the necessary findings underlying the claim. 31 Conn. App. at 280-281.

The trial judge had stated at the commencement of voir dire: "I'm going to leave the voir dire up to you people, and I'll be in my chambers if I'm needed."

The Appellate Court reviewed extensive Connecticut authority, all of which required the court to maintain a visible presence in the courtroom. It reviewed the authorities from other states and federal courts, nearly all of which were criminal cases.

It concluded as follows (31 Conn. App. 286-87):

The court continued (31 Conn. App. at 288-289):

The court reasoned further that the nature of peremptory challenges in light of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d. 69 (1986) mandates that the trial judge be present during voir dire. The Batson decision established the guidelines for evaluating a criminal defendant's claim that the state's exercise of peremptory challenge was based on purposeful racial discrimination. The court reviewed the procedure, which is set out at 31 Conn. App. 289-291, and held that a trial judge cannot possibly make the required determination of whether a defendant demonstrated that a prosecutor has used peremptory challenges in a racially discriminatory manner unless he or she is present on the bench, and the failure to be present on the bench precludes review.

The court went on to hold that the ruling could not be considered harmless nor could the defendant waive his right that the judge be present. The waiver is not possible, the court reasoned, because the defendant is not the only party with substantial constitutional rights entitled to protection during the voir dire. The U.S. Supreme Court in Powers v. Ohio, 111 S.Ct. 1364, 113 L.Ed.2d 411, 59 USLW 4268 (1991) expanded the right of an accused to challenge the exclusion of a prospective juror on the basis of racial discrimination regardless of the race of the juror. The court permitted the defendant to raise the equal protection rights of a juror excluded from jury service. The court noted that every person has a right to participate in the democratic process through their inclusion on a jury, and the defendant cannot waive this right of each prospective juror.

The Appellate Court held that because the error cannot be considered harmless, and because the defendant could not waive the requirement that the judge be on the bench, the error was per se reversible. 31 Conn. App. at 301-303.

In Batson v. Kentucky, supra, the U.S. Supreme Court prohibited prosecutors from exercising peremptory challenges based on race, holding that such challenges violated the equal protection rights of criminal defendants. More recently, the Supreme Court has broadened this justification and held that race based peremptory challenges also violate the equal protection rights of excluded jurors. Powers v. Ohio, supra. On this basis, the Supreme Court in Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) extended Batson to prohibit race based peremptory challenges in civil cases. 111 S.Ct. at 2083.

These decisions rest, in part, on the determination that civil litigants and prosecutors are state actors when they make peremptory challenges. The court recently has extended this rationale to criminal defendants, holding that they also are state actors constrained by Batson when they exercise peremptory challenges. Georgia v. McCollum, 112 S.Ct. 2348, 2356, 120 L.Ed.2d 33, 60 USLW 4574 (1992) ("Regardless of who precipitated the juror's removal, the perception and the reality in a criminal trial will be that the court has excused jurors based on race, an outcome that will be attributed to the state.")

The Supreme Court, in reversing the Appellate Court holding, stated (230 Conn. at 390):

The Supreme Court analysis rested on the proposition that because a criminal defendant can waive his equal protection right against discriminatory peremptory challenges, Ford v. Georgia, 498 U.S. 411, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991), he can also waive the right to judicial supervision over the voir dire process itself. The means of protecting the right "should not receive greater protection than the right itself." 230 Conn. at 393.

The court also held that if the defendant can waive a constitutional challenge for himself, he can waive his right to assert the juror's interest. 230 Conn. at 395:

The court specifically refused to decide whether the same rule applies to civil cases. 230 Conn. at 397 n. 12. The court's discussion of what is at stake in a criminal trial appears at 230 Conn. 398-399. It is very difficult to assess from this discussion what the court will do when faced with the same issue in a civil case.

Finally, although it found waiver in the matter before it, the court specifically provided, 230 Conn. at 400, that the requirement that the trial judge remain on the bench during voir dire in a criminal case "cannot be waived by either party in future criminal cases."

VIII. Constitutional Challenges.

The competing interests of preserving the peremptory challenge and preventing discrimination in jury selection has plagued trial lawyers and judges since the U.S. Supreme Court decision in Batson v. Kentucky, supra. This debate is gaining new momentum in light of the U.S. Supreme Court's decision in J.E.B. v. Alabama Ex Rel T.B., 114 S.Ct. 1419, 128 L.Ed.2d 89, 62 USLW 4219 (1994); and Martins v. Connecticut Light & Power Company, 35 Conn. App. 212, cert. denied 231 Conn. 915 (1994).

Jury selection has always been at least in part an intuitive process. The process is based on experience, instinct, intuition, and in modern times, the advice of jury consultants. The ability to excuse a given number of potential jurors without reason or cause has always been viewed by trial lawyers as one of their most valuable tools in obtaining a fair and impartial jury. Essentially, peremptory challenges give the trial lawyer control over what he or she perceives as the unspoken bias of a particular juror.

The limits placed by Batson and the cases following it, discussed hereinafter, represent the judiciary's continuing attempt at balancing the litigant's need for peremptory challenges and the right of everyone to be free from discrimination. The distinction here is that there is no limit on the use of peremptory challenges for permissible biases, such as dislike of trucks or motorcycles, unlike discriminatory biases, for which use of the peremptory challenge is a pretext. The erosion in the heretofore absolute freedom associated with the exercise of peremptory challenges is merely an attempt to eliminate discrimination within the jury selection process.

In 1991 the U.S. Supreme Court decided Edmonson v. Leesville Concrete Co., supra, extending the Batson rationale to civil cases, holding that potential jurors have an equal protection right to be free of racial discrimination in jury selection by civil litigants. Batson involved a violation of the defendant's rights by the exercise of the challenge by a state employed prosecutor. Edmonson involved private parties in a civil case. It placed the right squarely on the potential juror, not the parties. The Equal Protection Clause of the U.S. Constitution was seen as protecting the rights of potential jurors from racial discrimination in the exercise of peremptory challenges. All litigants, in both criminal and civil actions, because of their extensive reliance on the courthouse and the judge, were seen as state actors, and thus prohibited from engaging in racially discriminatory challenges. This was an expansion from Batson, which relied on the equal protection rights of the accused for its holding. Although Edmonson found state action because the court systems and procedures under which they operate are products of governmental action, nevertheless it held that potential jurors are entitled to be free on equal protection grounds from racial discrimination.

The following groups are protected, or, stated another way, it is impermissible to excuse a juror on the grounds listed below:

1. Race. Batson v. Kentucky, supra.

2. Hispanics. "Ethnicity." Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). (National origin)

3. Ancestry. Edmonson v. Leesville Concrete Co., supra, referred to "ancestry" as the basis for a challenge. (National origin)

4. American Indians. U.S. v. Chalan, 812 F.2d 1302 (10th Cir. 1987); U.S. v. Bedoine, 913 F.2d 782 (10th Cir. 1990); but see, U.S. v. Willie, 941 F.2d 1384 (10th Cir. 1991).

5. Mexican-Americans. Bueno-Hernandez v. State, 724 P.2d 1132 (Wyo. 1986).

6. Italian-Americans. U.S. v. Biaggi, 853 F.2d 89 (2d Cir. 1988); but see, U.S. v. Angiulo, 847 F.2d 956 (1st Cir. 1988).

7. Irish-Americans. One court held that Irish Americans are not within the "ethnicity" or "ancestry" prohibitions covered by the rule. Murcha v. U.S., 926 F.2d 50 (1st Cir. 1991).

8. Gender. J.E.B. v. Alabama, 114 S.Ct. 1419, 128 L.Ed.2d 89, 62 USLW 4219 (1994); Martins v. Connecticut Light & Power Company, 35 Conn. App. 212, cert. denied 231 Conn. 915 (1994).

On April 19, 1994 the U.S. Supreme Court in J.E.B. v. Alabama held that the equal protection clause bars discrimination in jury selection on the basis of sex. In a 6-3 ruling, Justice Harry Blackmon, writing for the majority, held that discrimination in jury selection, whether based on race or on gender, causes harm to the litigants, the community, and to the individual jurors who are wrongfully excluded from participation in the judicial process.

The decision came in a paternity action in which state lawyers representing the mother of the child used nine of their ten peremptory challenges to remove men from the jury. The all-female jury found against the defendant, and ordered him to pay $415 a month in child support.

The court held that the litigants are harmed by the risk that the prejudice which motivated the discriminatory selection of the jury will effect the entire proceedings. The community is harmed by the state's participation in the perpetuation of invidious group stereotypes and the inevitable loss of confidence in our judicial system that state-sanctioned discrimination in the courtroom engenders.

Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, dissented, arguing that the court had imperiled "a practice that has been considered an essential part of fair jury trials since the dawn of the common law." He ridiculed the majority for its demonstration of how thoroughly up-to-date and right-thinking it was on "matters pertaining to the sexes." He went so far as to reject the now fairly standard phrase of "gender discrimination" in favor of "sex discrimination."

In Martins v. Connecticut Light & Power Company, supra, during the selection of alternate jurors the defendant exercised a peremptory challenge to excuse a black female. The plaintiff objected based on defendant's unconstitutional exercise of a venireperson's race. In response defendant claimed that the challenge was exercised because the venireperson was a young woman, not because of her race. The trial court conducted a hearing and ruled that Batson v. Kentucky did not prohibit gender or age discrimination claims with regard to the exercise of peremptory challenges.

The Appellate Court, noting that the issue of whether federal constitutional equal protection prevents a civil litigant from peremptorily challenging a potential juror on the basis of gender was recently decided by the United States Supreme Court in J.E.B. v. Alabama, supra, held that Connecticut's jury selection procedures must comply with the federal constitution and that the use of preemptory challenges is limited by the equal protection clause of the federal constitution "as enunciated in the J.E.B. decision, as potential jurors may no longer be peremptorily challenged on the basis of gender." 35 Conn. App. at 225. The Appellate Court further held that the language of the majority opinion in J.E.B. left "little doubt that it's principles will be applied to the parties in a civil action in which the government is not involved." 35 Conn. App. at 226.

The decisions have caused a great deal of controversy. In the June 27, 1994 Connecticut Law Tribune (20 CLT 26) former CTLA president Robert Adelman stated (20 CLT 26 at 17):

Retired U.S. District judge Robert C. Zampano, quoted in the same Connecticut Law Tribune article, stated that it would be difficult to force trial lawyers to disregard the lessons and lore of their own experience (20 CLT 26 at 17):

Judge Zampano also stated that experienced judges may well defer to an attorney's "unarticulated hunch" on a peremptory challenge. He stated (20 CLT 26 at 17):

On August 23, 1994 the Supreme Court, in State v. Williams, 231 Conn. 235 refused to review propriety of a state's attorney's final argument on the basis that the defendant failed to object to the argument "with any specificity." 231 Conn. at 246.

The argument was (231 Conn. at 263):

The objection interposed by defense counsel was (231 Conn. at 264):

The trial court refused to give a curative instruction. Nonetheless, the Supreme Court majority held that the objection was not specific enough, and that it therefore refused to review the issue. It stated, however (231 Conn. at 247):

In Justice Berdon's dissent, he pointed out that telling female jurors that they are thought to be weak and emotional, and that they may dispel this notion by voting to convict, is not only reprehensible conduct by the state's attorney, it violates the defendant's right to a fair trial, and mandates a new trial.

One wonders how much more specific defense counsel could have been in her objection.

9. Jews. Held to be "ethnic group." Decision on state constitutional grounds in Joseph v. State, 636 So.2d 777 (Fla. App. 3d 1994). Here, a prosecutor excused a juror because she was Jewish. The court held that it was unconstitutional based on state constitutional grounds. The court said that the reason Jews could not be discriminated against was not because of their religion, but because they are an ethnic group. As such, it could also be included within the U.S. Supreme Court's prohibition on "race," as the Supreme Court treated Hispanics as a type of racial discrimination where a Hispanic is excused from a jury, however reference in the decision was to "ethnic group." Hernandez v. New York, supra.

Jews had been held to be a race for purposes of 42 U.S.C. §1982. Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 107 S.Ct. 2019, 95 L.Ed.2d 594 (1987); see also: U.S. v. Greer, 939 F.2d 1076 (5th Cir. 1991). But see, State v. Couture, 218 Conn. 309, 316-316A (1991).

10. Religion. Three justices in J.E.B. v. Alabama, supra, suggested that the court's decision invalidating peremptory challenges based on sex could also be applied to religion (Scalia, J., dissenting, joined by Rehnquist, C.J., and Thomas, J.). Their analysis was that logic which invalidated sex discrimination implicates much more that sex-based jury strikes, because it applies the heightened scrutiny mode of equal protection analysis, which is also used for discrimination based on religious beliefs. In 1991 the Fifth Circuit stated in dicta that jurors could not be stricken simply because they were Jewish. U.S. v. Greer, 939 F.2d 1076 (5th Cir. 1991).

The Minnesota Supreme Court has held that religion is not a basis for a constitutional objection to a peremptory challenge. Minnesota v. Davis, 504 N.W.2d 767 (Minn. 1993), cert. denied, 114 S.Ct. 2120, 128 L.Ed.2d 679, 62 USLW 3771 (1994). The U.S. Supreme Court apparently has drawn the line against extending its non-discrimination rule to religion by denying certiorari in Davis v. Minnesota.

In Davis the prosecutor in an aggravated robbery trial used a peremptory challenge to remove a black man from the jury. When asked for a race neutral explanation for the strike, the prosecutor explained that the man was a Jehovah's Witness and that those adherents are reluctant to judge their fellow human beings. The trial judge allowed the challenge and the state Supreme Court affirmed, four to three.

The Supreme Court justices gave no reason for declining to review the Minnesota Supreme Court ruling. Justice Thomas, joined by Justice Scalia, dissented, saying that after J.E.B., no "principled" reason appears for not extending Batson to any strike based on a classification that is given heightened scrutiny under the equal protection clause - and that includes religion.

Traditionally, trial lawyers have been very interested in religious affiliations in particular cases. For example, where alcohol is involved, religious affiliation can be something of a predictor.

Justice Thomas's opinion, joined by Justice Scalia, stated (114 S.Ct at 2121-2122):

Justice Ginsberg wrote a short opinion in which she pointed out that the Minnesota Supreme Court's decision was not based solely on the fact that the U.S. Supreme Court hadn't ruled on the issue. Rather, she stated that the Minnesota Court included some reasoning of its own, including the fact that religion is not as self-evident as race or gender, and that asking jurors about their religion is irrelevant and prejudicial, and to ask such questions is improper.

11. Marital status. U.S. v. Omoruyi, 7 F.3d 880 (9th Cir. 1993). A prosecutor used peremptory challenges against two single women because he was afraid they would be attracted to the defendant's "good looks." The prosecutor attempted to justify his use of the challenges on the basis of marital status. He argued that he had discriminated on the basis of marital status, not gender, but the court did not buy it. The prosecutor had not used any peremptory challenges against single men, and although the women who were stricken were single, they were still stricken because they were women, which was a "purposeful gender discrimination" prohibited by J.E.B.

12. Age. In State v. Ruffin, 20 CLT 26, p. 1 (6/27/94), defendant was accused of the murder of a 7-year old girl caught in the cross-fire of a shootout between Stamford area gang members. A female prospective juror went through voir dire without incident. When it came time to exercise peremptory challenges, the prosecutor exercised a challenge and rejected her, claiming that she did not take the proceeding seriously enough and did not properly understand legal terminology.

The defense claimed that the prosecutor's reasons were a sham. It argued that the reason the prosecutor wanted the juror off the panel was because of her age. They claimed that the prosecutor was systematically excluding anyone under 26 from the panel and this juror was 22.

Superior Court Judge Martin Nigro agreed with the defense. He held that the prosecutor could not exclude jurors solely because of their age. He stated (20 CLT 26 at 1):

B. Factors determining if prima facie case exists.

Courts have looked to the following factors to determine whether a prima facie case exists:

1. The racial composition of the jury compared to the racial composition of the venire. Batson, 476 U.S. at 96; U.S. v. Esparsen, 930 F.2d 1461 (10th Cir. 1991); U.S. v. Wilson, 867 F.2d 486 (8th Cir. 1989)(prima facie case found where lawyer struck 3 of 4 blacks on the venire); U.S. v. Sangineto-Miranda, 859 F.2d 1501 (6th Cir. 1988); U.S. v. Williams, 822 F.2d 512 (5th Cir. 1987); Ex Parte Bird, 594 So.2d 676 (Ala. 1991); Williams v. State, 368 S.E.2d 742 (Ga. 1988).

2. The racial composition of the jury compared to the racial composition of the community. U.S. v. Woods, 812 F.2d 1483 (4th Cir. 1987).

3. The percentage of the lawyer's strikes used against the ethnic group in question. Batson, 476 U.S. at 96; U.S. v. Esparsen, 930 F.2d 1461 (10th Cir. 1991); U.S. v. Tindle, 860 F.2d 125 (4th Cir. 1988)(lawyer used 5 of 6 challenges against blacks, and no black served on jury); U.S. v. Wilson, 853 F.2d 606 (8th Cir. 1988)("one must compare the characteristics of the individual which prompted the . . . strike with the characteristics of those not struck"); Ex Parte Branch, 526 So.2d 609 (Ala. 1987); but see, U.S. v. Sangineto-Miranda, 859 F.2d 1501 (6th Cir. 1988)(no prima facie case even though lawyer struck only blacks); U.S. v. Willie, 941 F.2d 1384 (10th Cir. 1991)(no prima facie case where prosecutor struck two Indians from panel, but did not strike one who served on jury).

4. Whether the striking lawyer allowed one or more jurors from the ethnic group on the panel. U.S. v. Esparsen, 930 F.2d 1461 (10th Cir. 1991); U.S. v. Lane, 866 F.2d 103 (4th Cir. 1989)(fact that lawyer accepted two black jurors "weighs heavily in support of the district court's finding of no discrimination"); U.S. v. Sangineto-Miranda, 859 F.2d 1501 (6th Cir. 1988); U.S. v. Forbes, 816 F.2d 1006 (5th Cir. 1987); Dennis v. State, 555 So.2d 679 (Miss. 1989), U.S. v. Willie, 941 F.2d 1384 (10th Cir. 1991).

5. Whether the struck jurors have anything in common other then their race or ethnicity. Garrett v. Morris, 815 F.2d 509 (8th Cir. 1987); Ex Parte Bird, 594 So.2d 676 (Ala. 1991); People v. Scott, 522 N.Y.S.2d 94, 516 N.E.2d 1208 (1987).

6. How thoroughly the striking lawyer examined the jurors on voir dire, and whether he examined the struck jurors as thoroughly as the other jurors. Batson, 476 U.S. at 96; State v. Thomas, 407 S.E.2d 141 (N.C. 1991).

7. The race or ethnic background of the parties and witnesses. State v. Thomas, 407 S.E.2d 141 (N.C. 1991).

8. Strike patterns of the striking lawyer in past trials. Ex Parte Bird, 594 So.2d 676 (Ala. 1991).

Generally, the stronger the prima facie case, the stronger the reason needs to be. Ex Parte Bird, 594 So.2d 676 (Ala. 1991). But the reason doesn't have to be good enough to justify a challenge for cause. Batson, supra.

1. Relationship with a party or counsel or a witness. U.S. v. Hendrieth, 922 F.2d 748 (11 Cir. 1991)(knew witness); U.S. v. Love, 815 F.2d 53 (8th Cir. 1987)(same); U.S. v. Fuller, 942 F.2d 454 (8th Cir. 1991)(had met defendant at a party); U.S. v. Tindle, 860 F.2d 125 (4th Cir. 1988)(juror appeared to know people associated with the defendant); U.S. v. Williams, 822 F.2d 512 (5th Cir. 1987)(juror lived in county where defense counsel was well known); U.S. v. Woods, 812 F.2d 1483 (4th Cir. 1987)(defendant was a minister, and juror attended "various churches" in the city); U.S. v. Cartlidge, 808 F.2d 1064 (5th Cir. 1987)(knew attorney); Ex Parte Lynn, 543 So.2d 709 (Ala. 1988)(juror's husband related to defendant); Commonwealth v. Young, 517 N.E.2d 130 (Mass. 1987)(prosecutor believed juror had same last name and was from same locale as defense witness in different trial); U.S. v. Briscoe, 896 F.2d 1476 (7th Cir. 1990)(juror lived near witness).

2. Age. U.S. v. Day, 949 F.2d 973 (8th Cir. 1991)(juror was young, had a sporadic employment history, and did not own property); U.S. v. Clemons, 941 F.2d 321 (5th Cir. 1991); U.S. v. Williams, 934 F.2d 847 (7th Cir. 1991)(lawyer believed that young single mother "might have other concerns"); U.S. v. Moreno, 878 F.2d 817 (5th Cir. 1989)(jurors were young, single unemployed and inexperienced); U.S. v. Garrison, 849 F.2d 103 (4th Cir. 1988)(juror close in age to defendant); U.S. v. Lewis, 837 F.2d 415 (9th Cir. 1988)(juror's age and lack of family, in a child abuse case); State v. Everett, 472 N.W.2d 864 (Minn. 1991); Harrell v. State, 555 So.2d 263 (Ala. 1989).

3. Type of employment. U.S. v. Fuller, 942 F.2d 454 (8th Cir. 1991)(one juror employed by business which prosecutor believed had ties to drug dealers; another was a teacher, and prosecutor believed teachers were more forgiving and sympathetic to defendants); U.S. v. Briscoe, 896 F.2d 1476 (7th Cir. 1990)(prosecutor believed juror might be sympathetic toward defendants because she had worked at a correctional center); U.S. v. Moreno, 878 F.2d 817 (5th Cir. 1989)(prosecutor had "gut reaction" that commercial artist would sympathize with defendant in drug case); U.S. v. Davis, 871 F.2d 71 (8th Cir. 1989)(lawyer believed juror whose job required little independent thinking would not be able to follow case well); U.S. v. Tindle, 860 F.2d 125 (4th Cir. 1988)(prosecutor believed juror who was a horse-trainer might be contemptuous of two government witnesses who were also horse-trainers and would testify about illegal activities in which they had been involved); U.S. v. Garrison, 849 F.2d 103 (4th Cir. 1988)(juror was unemployed; lawyer said he "almost always" prefers employed persons on a jury); U.S. v. McCoy, 848 F.2d 743 (6th Cir. 1988)(lawyer feared young, unemployed juror would sympathize with young, unemployed defendant); State v. Green, 409 S.E.2d 785 (S.C. 1991)(juror unemployed); People v. Harris, 554 N.E.2d 357 (Ill. 1989)(prosecutor believed teachers and their spouses tend to give people the benefit of the doubt, and musicians are creative and thus willing to move beyond the strictures of the law); Simpkins v. State, 558 A.2d 816 (Md. App. 1989)(prosecutor "traditionally struck jurors who worked for the Social Security Administration); Lockett v. State, 517 So.2d 1346 (Miss. 1987)(prosecutor believed ministers tend to sympathize with criminal defendants).

4. Gender. U.S. v. Wilson, 867 F.2d 486 (8th Cir. 1989)(prosecutor believed women were more afraid to convict people of "street" crimes); People v. Hooper, 552 N.E.2d 684 (Ill. 1989)(no longer a permissible basis for a strike, J.E.B. v. Alabama, supra).

5. Marital status. U.S. v. Valley, 928 F.2d 130 (5th Cir. 1991)(prosecutor believed single person had lesser tie to community); U.S. v. Ross, 872 F.2d 249 (8th Cir. 1989)(juror was young, unemployed, single and had little education); U.S. v. Davis, 871 F.2d 71 (8th Cir. 1989)(lawyer believed unwed people over 30 have trouble making a commitment and may be unable to reach a verdict); U.S. v. Cartlidge, 808 F.2d 1064 (5th Cir. 1987)(juror was single and unemployed, and so was defendant); State v. Lindsay, 543 So.2d 886 (La. 1989)(juror had four children out of wedlock).

6. Lawyer's "hunch." State v. Thomas, 407 S.E.2d 141 (N.C. 1991)(lawyer "may exercise peremptory challenges on the basis of legitimate `hunches' and past experience"); State v. Brinkley, 753 S.W.2d 927 (Mo. 1988)("Batson does not prohibit `hunch' challenges so long as racial animus is not the motive.").

7. Hostility toward striking party. U.S. v. Hendrieth, 922 F.2d 748 (11th Cir. 1991); U.S. v. Roan Eagle, 867 F.2d 436 (8th Cir. 1989)(dress and mannerism suggested hostility toward prosecution); U.S. v. Forbes, 816 F.2d 1006 (5th Cir. 1987); U.S. v. Mathews, 803 F.2d 325 (7th Cir. 1986); People v. Walker, 765 P.2d 70 (Cal. 1988)(juror dressed in metal-studded leather jacket and said he had been repeatedly harassed by police while riding his motorcycle).

8. Hostility and body language in general. Reynolds v. Benefield, 931 F.2d 506 (8th Cir. 1991); U.S. v. Moreno, 878 F.2d 817 (5th Cir. 1989); U.S. v. Biaggi, 853 F.2d 89 (2d Cir. 1988)(angry, arrogant and flippant demeanor); U.S. v. Vaccaro, 816 F.2d 443 (9th Cir. 1987)(poor attitude); U.S. v. Forbes, 816 F.2d 1006 (5th Cir. 1987)(juror had arms crossed and seemed hostile to serving on jury); Lockett v. State, 517 So.2d 1346 (Miss. 1987)(one juror rolled eyes when not excused to care for sick mother; another wore hat into courtroom and appeared contemptuous of proceedings).

9. Hesitant or unwilling to follow the court's instructions. Hayes v. State, 405 S.E.2d 660 (Ga. 1991)(juror said it would bother her if defendant didn't testify).

10. Inattentive. U.S. v. Sherrills, 929 F.2d 393 (8th Cir. 1991); U.S. v. Hendrieth, 922 F.2d 748 (11th Cir. 1991)(juror "inattentive and rubbing and rolling her eyes"); U.S. v. Garrison, 849 F.2d 103 (4th Cir. 1988)(juror chatted with other juror and appeared bored).

11. Sleepy. People v. Harris, 544 N.E.2d 357 (Ill. 1989)(juror was "meek and sleepy" and did not answer questions in forthright manner).

12. Slouched. Smith v. State, 734 S.W.2d 694 (Tex. App. 1987).

13. Didn't make eye contact. U.S. v. Terrazas-Carrasco, 861 F.2d 93 (5th Cir. 1988).

14. Looked gentle. Barnett v. State, 771 S.W.2d 654 (Tex. App. 1989).

15. Hairstyle. U.S. v. Clemons, 941 F.2d 325 (5th Cir. 1991)(prosecutor said he would strike any juror with a ponytail).

16. Size and appearance similar to defendant, where defense is mistaken identity. U.S. v. Tindle, 860 F.2d 125 (4th Cir. 1988).

17. Unreceptive to party's theory of case. People v. Chambie, 234 Cal. Rptr. 308 (Cal. 1987).

18. From liberal neighborhood. People v. Harris, 544 N.E.2d 357 (Ill. 1989).

19. Legal background. U.S. v. Miller, 939 F.2d 605 (8th Cir. 1991); U.S. v. Wilson, 867 F.2d 486 (8th Cir. 1989)(juror worked in juvenile court and had too much understanding of justice system.

20. Bilingual. Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)(prosecutor afraid juror would not accept official translation of testimony); but see, Pemberthy v. Beyer, 800 F.Supp. 144 (D.C. N.J. 1992).

21. Had read newspaper stories about case. U.S. v. Woods, 812 F.2d 1483 (4th Cir. 1987); State v. Thomas, 407 S.E.2d 141 (N.C. 1991).

22. Appeared to be lying about age. Commonwealth v. Young, 517 N.E.2d 130 (Mass. 1987).

23. Appeared unintelligent or confused. State v. Lindsay, 543 So.2d 886 (La. 1989)(juror was smiling and giddy and had trouble answering questions about name, address, etc.); Splunge v. State, 526 N.E.2d 977 (Ind. 1988)(juror didn't seem to understand standard of proof).

24. Hard of hearing. U.S. v. Alston, 859 F.2d 1362 (11th Cir. 1990); Ex Parte Lynn, 543 So.2d 709 (Ala. 1988).

25. Unable to be impartial. State v. Thomas, 407 S.E.2d 141 (N.C. 1991)(juror would not convict without an eyewitness); People v. Bittaker, 774 P.2d 659 (Cal. 1989)(one juror said he would try to be amateur psychiatrist; another doubted she could convict of first degree murder unless body were found); People v. Walker, 765 P.2d 70 (Cal. 1988)(juror said police frequently harassed her husband and she couldn't imagine siding with prosecution); Thorne v. State, 509 N.E.2d 877 (1987).

26. Prior jury experience. U.S. v. Roan Eagle, 867 F.2d 436 (8th Cir. 1989)(prior service on jury that reached verdict of not guilty).

27. Criminal record. U.S. v. Briscoe, 896 F.2d 1476 (7th Cir. 1990); Maloney v. Plunkett, 854 F.2d 152 (7th Cir. 1988); U.S. v. Garrison, 849 F.2d 103 (4th Cir. 1988); Kelley v. State, 622 So.2d 473 (Ala. 1992); State v. Porter, 326 S.E.2d 144 (N.C. 1990)(drunk driving record).

28. Relative has criminal record. U.S. v. Tindle, 860 F.2d 125 (4th Cir. 1988)(prosecutor feared relationship based on same last name, although this was not shown); U.S. v. Vaccaro, 816 F.2d 443 (9th Cir. 1987)(brother in prison); U.S. v. Forbes, 816 F.2d 1006 (5th Cir. 1987); Hightower v. State, 386 S.E.2d 509 (Ga. 1989).

29. Crime victim. U.S. v. Briscoe, 896 F.2d 1476 (7th Cir. 1990)(juror had been victim of violent crime and appeared to resent government for not charging anybody).

30. Known to have used an alias. U.S. v. Fuller, 942 F.2d 454 (8th Cir. 1991).

D. Impermissible strikes: Reasons that have been held insufficient.

1. Reasons not applied consistently to other jurors. U.S. v. Chincilla, 874 F.2d 695 (9th Cir. 1989)(lawyer said he struck juror because of residence in particular city, but he didn't strike another juror who lived in same city); Garrett v. Morris, 815 F.2d 509 (8th Cir. 1987)(lawyer feared that juror lacked enough education to understand scientific evidence, but the juror had a high school education and some of the other jurors on the panel didn't); Ex Parte Bird, 594 So.2d 676 (Ala. 1991); State v. Belnavis, 787 P.2d 1172 (Kan. 1990); State v. Collier, 553 So.2d 815 (La. 1989)(juror struck for religious affiliation, but other jurors who were kept had same affiliation); Roundtree v. State, 546 So.2d 1042 (Fla. 1989)(black males struck because of causal dress, but some white jurors who were accepted dressed even more casually).

However, where a lawyer gives multiple reasons for a strike, the fact that other jurors who were kept shared some of the characteristics of the struck juror may not invalidate the strike. See, Moore v. Keller Industries, Inc., 948 F.2d 199 (5th Cir. 1991) ("existence of other jurors to whom the reasons also apply does not demonstrate that the reasons are pretextual"); Lockett v. State, 517 So.2d 1346 (Miss. 1987)(juror was struck because she was young, single and poorly educated; some other jurors had one or two of these characteristics but not all three).

2. Reasons not supported by facts in the record. U.S. v. Chinchilla, 874 F.2d 695 (9th Cir. 1989)(lawyer cited age, but ages of jurors were not in record); State v. Marrs, 379 S.E.2d 497 (W.V. 1989)(prosecutor thought juror might have relative with outstanding warrant, but failed to ask about this).

3. General denials of discriminatory intent. Batson, 476 U.S. at 98.

4. "Just a gut feeling" about a juror. Ex Parte Bird, 594 So.2d 676 (Ala. 1991).

5. Residence in high-crime area or community hostile to police. U.S. v. Bishop, 959 F.2d 820 (9th Cir. 1992)(prosecutor surmised that juror in low-income black neighborhood was likely to believe that police "pick on people"); Ex Parte Bird, 594 So.2d 676 (Ala. 1991).

6. Reasons based on stereotypes of ethnic groups or gender. State v. Burch, 830 P.2d 357 (Wash. App. 1992)(lawyer struck one woman because he believed she would be "easily swayed," and another because she was a "social worker type"); U.S. v. Bishop, 959 F.2d 820 (9th Cir. 1992).

7. Fear that the other party's friends will contact juror because they live in the same community and are of the same race. U.S. v. Wilson, 884 F.2d 1121 (8th Cir. 1989).

8. Belief that juror of same race as other party might be sympathetic toward him. Batson, 476 U.S. 79 (1986); U.S. v. Alcanter, 897 F.2d 436 (9th Cir. 1990).

9. Presumption that black attorney would have unfair advantage with black jurors. U.S. v. Brown, 817 F.2d 674 (10th Cir. 1987).

10. Striking blacks to compensate for opposing counsel's striking of whites. People v. Pagel, 232 Cal. Rptr. 104 (1986).

11. Juror has a friend who is a criminal defense lawyer. People v. Harris, 544 N.E.2d 357 (Ill. 1989).

12. Walked slow and talked low. State v. Tomlin, 384 S.E.2d 707 (S.C. 1988).

E. How to exercise constitutional challenge.

A constitutional challenge consists of the following:

1. The objecting party must make out a prima facie case of discrimination. In Connecticut if the juror is of the same cognizable racial or gender group as the party objecting to the challenge, a prima facie case is presumed.

2. The excusing party must then give a neutral explanation for the challenge or challenges. This explanation does not have to amount to a challenge for cause, but it must be something more than a general denial of wrongdoing.

3. The objecting party then has a chance to show that the explanation is a pretext.

4. If the objection is overruled, the peremptory challenge is upheld and the juror leaves. If the objection is sustained, the court either declares a mistrial or places the stricken juror on the jury.

The above procedure applies to all constitutional challenges. Connecticut, as noted, has a more relaxed rule where the party objecting to the challenge is a member of a cognizable racial group and the other side exercises a peremptory challenge to remove members of that party's race from the jury. In this instance the Supreme Court has adopted the South Carolina rule that a prima facie case does not have to be shown, and that a Batson hearing must be held whenever such a party requests. This rule was adopted in State v. Holloway, 209 Conn. 636, 646, cert. denied 490 U.S. 1071, 109 S.Ct. 2078, 104 L.Ed.2d 643 (1989).

In Holloway the trial court found that the defendant had failed to establish a prima facie case of purposeful discrimination in the state's use of a peremptory challenge to exclude a black venireperson from the jury that convicted him. The court held that although the trial court's consideration of the circumstances under which the peremptory challenge was exercised was incomplete, it correctly determined that the defendant failed to present a prima facie case of purposeful discrimination where the state asked the same number or fewer questions of other prospective jurors who were not black, where there had been no pattern of excluding blacks and the state accepted another black juror after it exercised the peremptory challenge in question.

The court, in adopting the bright line rule above-referenced, stated (209 Conn. at 645-646):

The court's consideration of this issue is not complete without quoting footnote 4 (209 Conn. at 646 n. 4):

The Appellate Court has determined that the rule applies only in the circumstance where the defendant is a member of a cognizable racial group and the state's attorney exercises a challenge to remove a member of that racial group. State v. Rivera, 23 Conn. App. 592, 597-598 (1990), cert. denied 217 Conn. 807 (1991).

The defendant in Rivera was a black Puerto Rican, who argued that the trial court violated his state and federal constitutional rights to equal protection by failing to find that the state's attorney's exercise of a peremptory challenge against a black prospective juror amounted to purposeful racial discrimination. The objection was based solely on the grounds that because the defendant was a black Puerto Rican, the removal of a black venireperson constituted purposeful racial discrimination by the state. The court noted, 23 Conn. App. at 597 n. 2, that it was not following the procedure set out in State v. Holloway, apparently because it was a black Puerto Rican complaining about the exclusion of a black prospective juror. The footnote reads:

Holloway was published January 29, 1989, and Rivera was published December 11, 1990. The Rivera decision does not indicate when that case was tried, however, in light of the importance of the issue and the Supreme Court's statement that in all future cases it was adopting a bright line per se rule, it is most extraordinary that the Appellate Court would not at least note the reason it was not following Holloway, unless it believed that for purposes of a Batson claim a black Puerto Rican is a member of a different class than a black Afro-American. It seems to be a distinction without a difference in the context of a criminal trial.

In any event, where the Holloway rule does not apply the defendant bears the burden of persuading the trial court by a preponderance of the evidence that the use of the peremptory challenge was tainted by a purposeful racial discrimination.

The court held that the party aggrieved by the exercise of the peremptory challenge must satisfy three elements to raise an inference of purposeful racial discrimination:

The Holloway rule, although announced in a criminal case involving race, clearly under Edmonson applies to civil cases, and on the same basis also applies to claims based on gender.

F. When to exercise constitutional challenge.

Because a pattern of discriminatory use of the peremptory challenge may not be apparent when the first, or even the second or third challenge is used, it would appear that the rule applicable for the exercise of non-constitutional challenges cannot be followed. That rules provides that a party is entitled to exercise the peremptory challenge up to the time that the juror has been accepted. After the juror has been accepted, the party loses his right to exercise the challenge. Its exercise is held to be discretionary after acceptance up to the time the jury is sworn. See: Supra, Section V (12 Forum, No. 6, p. 47 (Nov/Dec 1994)).

A constitutional challenge would be required to be made prior to the swearing of the jury. Other than this, it is difficult to articulate a bright line rule, as much depends on the circumstances.

The Supreme Court in State v. Patterson, 230 Conn. 385, 396 (1994) held that not only may a criminal defendant waive a constitutional challenge, that waiver can be inferred from the absence of an objection. It is manifest that in order to avoid waiver, a timely objection must be asserted, and this very likely will be held to be some time during the selection process prior to the actual swearing of the jury.

IX. Unity of Interest.

Public Act 93-176, the "unity of interest" in jury selection legislation, amended §§51-241 and 51-243 to provide for a pooling of peremptory challenges where certain parties are found to have a "unity of interest." This legislation is set out in Section I C, 12 Forum No. 6, p. 42 (Nov/Dec 1994).

Prior to this legislation, each party to a civil action was entitled to four challenges (assuming alternates were chosen). Krause v. Almor Homes, Inc., 147 Conn. 333, 335 (1960). In multiple party litigation it frequently took weeks, sometimes months, to select a jury. Occasionally, jury selection took as long or longer than the trial.

This legislation will be the subject of a separate article in a later issue of the Forum. Of note is Louis Pepe and Anthony Natale's article "The New "Unity of Interest Rule" in Voir Dire, and Its Applicability to Pending Cases," 11 Forum No. 5, p. 9 (Sept/Oct 1993).

X. Appellate Considerations.

A. Preservation of record.

1. Non-constitutional challenges.

(a) Must exhaust for error.

There is a presumption of no prejudice in rulings permitting a juror to serve unless all peremptory challenges have been exhausted. State v. Mercer, 208 Conn. 52, 61 (1988). In Mercer, the defendant had AIDS and prospective jurors were questioned about whether this would affect their judgment in the case. The trial court granted both parties' additional peremptory challenges. Upon selection of the jury, the defendant had not exhausted all of his peremptory challenges. The court held (208 Conn. at 61):

In State v. Vitale, 190 Conn. 219, 224-225 (1983), the court stated:

Implicit in this rule is that the offending juror could have been excused by means of a peremptory challenge if the same had not been exhausted. Were the challenge for cause comes early in jury selection, counsel wishes to preserve the refusal of the court to excuse for cause, it is essential that the challenges not only be exhausted, but counsel then attempt to exercise an additional challenge, which would have been available but for the ruling claimed to be erroneous on the earlier challenge for cause.

In Krause v. Almor Homes, Inc., 147 Conn. 333 (1960) a minor child was injured. His mother brought suit. The Supreme Court held that a cause of action was stated for the child as well as the parent, and that each party was entitled to four peremptory challenges in the selection of the jury. The trial court, however, after the plaintiff had utilized four challenges, stated that the plaintiff only had four challenges, and could not exercise any additional challenges.

The plaintiffs did not attempt to exercise any further challenges. On appeal the defendants claimed that the plaintiff, having failed to exhaust and attempt to utilize an additional challenge to test the court's ruling, waived it. The Supreme Court held (147 Conn. at 336):

In circumstances where a proper question was not permitted to be answered, it is impossible for the party to show that he or she could have discovered information that would have justified a challenge for cause or induce an exercise of a peremptory challenge. Accordingly, the court in this circumstance will find that the trial court's restriction placed on the voir dire examination was harmfully prejudicial. Lamb v. Burns, 202 Conn. 158, 165 (1987).

Constitutional challenges complain about one's adversary's impermissible discriminatory motive in the exercise of a peremptory challenge. If the objection is sustained, the challenge is overruled and the juror is seated (or mistrial declared). If the objection is overruled, the challenge is sustained and the juror goes. The exhaustion rule to preserve error is not involved.

One reason why issues concerning constitutional challenges will flood the Appellate and Supreme Courts is that there is no harmless error analysis when a peremptory challenge is found to be discriminatory on appeal, just as there is no harmless error analysis if a non-constitutional challenge for cause is erroneously denied.

For example, in J.E.B. v. Alabama, the defendant will get a new trial even though blood tests showed a 99.92 percent probability that he was the father of the child in question. There is no evidence based analysis giving rise to a holding that the error is harmless.

In Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) the court held that "trial errors," such as the admission of an involuntary confession, are subject to harmless error analysis, but that "structural defects" in the trial itself can never be considered harmless error. The court listed as structural defects deprivation of the right to counsel, trial before a biased judge, exclusion of members of the defendant's race from the grand jury, and deprivation of the right to self-representation. Lyons v. U.S., ___ A.2d ___, 1994 WL 392726, 63 USLW 2104 (D.C. App. 1994) added infringement of the peremptory challenge right to the list of "structural defects" set out in Fulminante.

In Lyons the prosecutor inadvertently failed to identify some of the government's witnesses names when, during voir dire, he attempted to ascertain whether any prospective jurors knew any of the witnesses. One of the unmentioned witnesses was a police officer, who, upon taking the witness stand for the government, recognized a juror as the girlfriend of his former partner. It was not until deliberations had begun that this was disclosed to counsel and the court. A motion for mistrial was denied.

The court observed that had the defense known of the connection, it almost certainly would have exercised a peremptory challenge. The prosecutor's omission had the effect of depriving the defendants of the opportunity to exercise a peremptory challenge. The impact of this deprivation could not be assessed in the context of other evidence, the court held, because it affected the composition of the jury rather than the weight of the evidence. The trial court's failure to declare a mistrial upon learning of the facts therefore constituted a "structural defect" in the trial to which harmless error analysis is inapplicable. A new trial was ordered.

This rule, although not specifically articulated in Connecticut, nevertheless is followed in practice. Consider the following from Lamb v. Burns, 202 Conn. at 165:

The same rule was followed in State v. Anthony, 172 Conn. at 177, where an arbitrary time limit was placed on voir dire. The harmless error analysis in State v. Williams, 231 Conn. 235, 244-245 (1994), where the court held that the trial court substitution of a discharged alternate juror after deliberations had commenced in violation of §54-82h(c), is distinguishable. The trial court was forced to substitute an alternate because a juror, after deliberations had commenced, believed that he had been contacted by an associate of the defendant who he believed had attempted to bribe him. This juror was excused, and an alternate, who had previously been excused, was recalled and placed on the jury. This case is distinguishable on the basis that the ruling did not implicate in any way the seating of a prejudiced juror or the impairment of the defendant's use of his peremptory challenges.

Constitutional challenges do not involve the restriction on the use of one's own challenge, but the discriminatory use of a challenge by one's adversary. Where the challenge is in fact discriminatory, harmless error analysis is inapplicable, as to hold discriminatory use of a peremptory challenge harmless would be to countenance the very discrimination that the cases seek to avoid.

If the trial court erroneously holds that the peremptory challenge has been used in a discriminatory manner, the aggrieved party has lost legitimate use of a challenge, and this interference with the right cannot be held harmless.

Finally, in Rozbicki v. Huybrechts, 218 Conn. 386, 395 (1991), the court, in placing the burden on appeal to prove prejudice on the party advantaged by the erroneous ruling (proceeding with voir dire in absence of plaintiff), stated:

The line between opinions, impressions, and predispositions that can be "put aside" and a fixed and abiding prejudicial bias mandating an excuse for cause is often very blurry.

We are all, plaintiff, defendant and the court, interested in a fair and impartial jury. Generally there are plenty of jurors to draw from. Why not, when in doubt, exercise discretion in favor of a fair and impartial jury, notwithstanding that the juror insists that he or she can "put aside" the articulated predisposition?

For example, in Johnson v. New Britain General Hospital, 203 Conn. 570 (1987), the juror, a retired dentist with an articulated antagonism against malpractice cases who claimed that he could put it aside, was the foreman of the jury. A defendant's verdict was returned. The plaintiff in that case will never believe that he was granted a fair trial. The foreman of the jury had antagonism towards malpractice cases, and the case was lost. The plaintiff will never know if the case was lost on the merits, or whether the dentist was unsuccessful in "putting aside" his "antagonism."

The right to challenge a juror involves a right to reject, not the right to select. State v. Mercer, 208 Conn. 52, 65 (1988). The right of the trial court to discharge a juror of its own motion, for good cause, is generally recognized and obviously salutary. State v. Mercer, supra, 208 Conn. at 64; State v. Parker, 112 Conn. 39, 56-57 (1930). The "good cause" authorizing the court to reject a juror is not identical to the basis for a challenge for cause. The good cause standard authorizing a judge to reject a juror is predicated on sound exercise of discretion.

Had the court in Johnson v. New Britain General Hospital excused the retired dentist, there could not possibly have been a reviewable issue for an appeal for two reasons. First, the right on the voir dire for issues not involving race or gender is to exclude, not include. The defendant in Johnson had no right to include the retired dentist on the jury, and would have had no standing to raise the issue had the juror been excused. Second, the Supreme Court focuses on those jurors who actually decide the case, rather than those persons who were excused for cause or peremptorily. State v. Tucker, 226 Conn. 618, 631-632 (1993). If a prospective juror is excused by the court, and the right is to exclude, not include, neither party has a right to that juror and the court's exercise of discretion is not reviewable. Moreover, since the juror did not sit, there was no way for the litigant to show he or she was harmed. There is no reviewable issue. Whether the exercise of the court's discretion in the interest of obtaining a fair and impartial jury was abused is not reached as neither party has standing to raise the issue.

Why, then, where there is some doubt, cannot the juror be simply excused in the discretion of the trial judge?

Supposing that a prospective juror had herself been a plaintiff in a malpractice case, had been disgusted with the care she received from her physician and appalled by her experience in the hospital, and a physician and hospital were defendants in the malpractice case on trial. Notwithstanding this, the juror insists that she could "put aside" these feelings and listen to the case and decide it based on the evidence and applicable law. Why take a chance? Even though the juror insists that she can put it aside, the court is not bound by the juror's statement. In Johnson, 203 Conn. at 584, the juror repeatedly stated that he could be fair and impartial. The Supreme Court stated:

The Supreme Court, in effect, has shifted the issue back to the exercise of discretion of the trial judge. The discretion is exercised based on the credibility of the juror, the existence of the predisposition or bias, the importance of this predisposition or bias to the juror, leading to an assessment by the trial judge whether it is merely an opinion or predisposition that can be "put aside" or whether it is a fixed and abiding prejudicial bias. The questioning that goes into this determination usually takes no more than five minutes, and frequently doesn't clear the doubt about jurors' ability to put the opinion, antagonism, attitude, or bias "aside." The risk is an unfair juror and possibly an unfair jury. A wrong decision casts a shadow over the entire proceeding.

There is nothing fair about a retired dentist with an antagonism towards malpractice cases sitting on a jury in a malpractice case, just as there is nothing fair about a malpractice victim unhappy with her physician and hospital care sitting on a jury in a malpractice case.

The ball is in the trial court, where the discretion is exercised. The trial judge is the arbiter of fairness, and he or she can rest assured that even if the issue is reviewable, the standard of review is abuse of discretion, and the court's discretion, exercised with a view towards obtaining a fair and impartial jury, is not going to be upset on appeal.