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Can a biased juror sit on a jury if neither attorney objects?

Posted by Brian C. Zuanich | Jan 27, 2020 | 0 Comments

The right to a jury trial obviously means you have the right to have a fair and impartial jury hear your case.

Otherwise, the right to a jury trial is harmful, and hollow.

The problem is … juror bias can be hard to nail down.  Judges, defense lawyers, and prosecutors usually have to make informed and imprecise guesses based on incomplete and circumstantial evidence—the way a prospective juror answers a question, for instance, or something in a juror's background that suggests a certain predisposition. 

Rarely if ever does a prospective juror say, “I can't be fair.”  But in State v. Guevara Diaza case decided today in the Court of Appeals, that's exactly what happened.

Juror 23 is biased

Guevara Diaz was on trial for rape.  Before trial started (as before every jury trial starts in Washington), potential jurors answer a detailed written questionnaire. 

One question asked: “Can you be fair to both sides in a case involving allegations of sexual assault or sexual abuse?”  Juror 23 wrote no. 

Interestingly—and somewhat shockingly—no one asked juror 23 about her answer during voir dire (i.e. jury selection process).  Not the prosecutor, not the defense attorney, not even the judge.

The prosecutor asked a group of jurors (including juror 23) a series of questions to determine whether they could be fair and impartial.  According to the record, the jurors as a whole responded “yes,” but it's not clear whether juror 23 specifically answered “yes” to each question—or any of the questions, for that matter.

The court seated juror 23 on Diaz's case.  The jury found Diaz guilty. Diaz appealed.

Express juror bias is automatically error 

The Court of Appeals' ruling and rationale were simple: Juror 23 was clearly biased she expressed actual bias.  She said directly she couldn't be fair in sexual assault cases.

It didn't matter that the defense attorney should have challenged juror 23 for cause and had her kicked off the jury.  The trial judge has an “independent responsibility not to seat a biased juror.” 

The prosecutor's group-directed questions didn't rebut this obvious presumption of unfairness.  We don't know exactly how juror 23 responded, if she responded at all.  But even if she did, that wouldn't have been enough to help the State.  As the Court noted, a potential juror's silence and answers during a group voir dire setting “cannot substitute for individual questioning.”  In other words, saying you can be fair in front of other jurors doesn't equate to writing that you can't be fair when you're by yourself.  

For these reasons, the Court of Appeals vacated Diaz's conviction because the trial violated his rights to a fair and impartial jury under the Washington and U.S. Constitutions. 

About us:  Zuanich Law specializes in criminal and civil appeals, including DOL and family law appeals.  We also handle post-conviction relief, including vacating, expunging, and sealing criminal records.  Subscribe to our weekly criminal law newsletter.

About the Author

Brian C. Zuanich

I am the managing partner at Zuanich Law. I am a former prosecutor and insurance defense attorney, and have practiced law in state and federal courts for over a decade.


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