One Bad Apple Can Spoil the Whole Bunch. When Should a Juror, Not Be a Juror?

20111004-080040.jpgJury selection is often where your case is won or lost. One bad juror can spoil your whole case. That one juror could lead the other jurors to render an adverse verdict, a compromise verdict or lead to gridlock and a hung jury. In civil cases, you often have limited peremptory challenges, where you can eliminate a juror without showing actual bias or other grounds for disqualification. So what exactly is the law? When is a judge obligated to grant your motion to strike a juror for cause? Below is a checklist of reasons which can be used to disqualify a juror in Indiana Courts:

Jury Objection Chart 6

Case Law in The State of Indiana

“In criminal cases the court must sustain a challenge for cause if the prospective juror: … is a defendant in a pending criminal case.” Ind. Jury Rule 17(b)(2). However, Indiana appellate courts will reverse a trial court’s decision regarding challenges for cause only where the decision is arbitrary or illogical and results in prejudice to the defendant. Smith v. State, 730 N.E.2d 705, 708 (Ind.2000). If a defendant uses a peremptory challenge to strike a problematic juror and does not complain that the use of this peremptory challenge prevented him from challenging another juror who was later seated, the defendant has not shown prejudice and any error will be found to be harmless. Shane v. State, 615 N.E.2d 425, 427 (Ind. 1993). This means that you need to have used all of your challenges and must be able to point to a later juror you were prevented from striking who is problematic. Otherwise, your objection is waived.

“A [criminal court] defendant is entitled as a matter of right only to an impartial jury, Ind. Const. Art. I, § XIII, and not to one of his precise choosing where the issue is merely replacing a regular juror with an alternate.” Jervis v. State, 679 N.E.2d 875, 882 (Ind.1997). Indiana Trial Rule 47(B) allows alternate jurors to replace regular jurors “who, prior to the time the jury returns its verdict, become or are found to be unable or disqualified to perform their duties.” Trial courts have significant leeway in determining whether to replace a juror with an alternate, and we will reverse only if there was an abuse of discretion. Harris v. State, 659 N.E.2d 522, 525 (Ind.1995); Ferry v. State, 453 N.E.2d 207, 213 (Ind.1983).

Constitutional Issues Regarding the Use of Peremptory Challenges

You cannot strike a member of a jury panel who is part of a protected class without being able to state a non-discriminatory reason for the use of your challenge. In J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S. Ct. 1419, 128 L.Ed.2d 89 (1994), the Court extended Batson (prohibiting the use of peremptory challenges along racial lines) to gender issues as well, holding that gender, like race, is an unconstitutional proxy for juror competence and impartiality. In so doing, the Court employed traditional equal protection analysis, observing that “the only question is whether discrimination on the basis of gender in jury selection substantially furthers the State’s legitimate interest in achieving a fair and impartial trial.” Id. at 136-37, 114 S.Ct. 1419. The J.E.B. Court rejected the justification offered by the state that jurors would be likely to sympathize along gender lines in a paternity action, declaring that “[w]e shall not accept as a defense to gender-based peremptory challenges the very stereotype the law condemns.” Id. at 138, 114 S.Ct. 1419. Emphasizing the harm that race or gender-based discrimination in jury selection causes “the litigants, the community, and the individual jurors who are wrongfully excluded from participation in the judicial process,” the Court reasoned that “[f]ailing to provide jurors the same protection against gender discrimination as race discrimination could frustrate the purpose of Batson itself. Because gender and race are overlapping categories, gender can be used as a pretext for racial discrimination.” Id. at 140, 145, 114 S. Ct. 1419. This restriction applies to civil cases as well as criminal cases.

Implied Bias Due to Close Relationship to State

Woolston v State, 453 N.E.2d 965, 968 (Ind.1983) involved a juror who had a close relationship to the State Police due to his wife’s employment. The juror was familiar with three of the officers who were to testify for the State and knew that his wife had worked on some of the evidence in the case. The Court noted that a challenge for cause had been held to exist in cases where a juror’s spouse had been hired for future employment by the prosecutor and in another where the juror’s wife was a second cousin to a member of the prosecutor’s staff, the Woolston court found that, based on the juror’s relationship to the State, it was error for the trial court to deny the challenge for cause.

Outside Knowledge, Evidence or Expertise

A jury should not be permitted to introduce outside evidence or knowledge which they may independently possess. This problem arises where a jury such as doctor, nurse or scientist has expertise which will be at issue in the case. Allowing this type of juror to bring expertise to the case, would be equivalent to allowing the juror to act as an expert witness who is never disclosed to either side and who cannot be cross-examined by either party. If the juror cannot leave this expertise, specialized information and such opinions behind in deciding the case, they are being allowed to act as an expert witness in the jury room. While there are no cases directly on this point, there are plenty of analogous authorities supporting such an objection. By analogy, judges are not permitted to act in this fashion. Our courts have held that where a judge based a verdict in a bench trial on an unannounced view of the accident scene he violated Federal Rule of Evidence 605. Lillie v. US, 953 F.2d 1188, 1191, 34 Fed. R. Evid. Ser. 938 (10th Cir. 1992). Likewise, it has been held where Judge relied upon his own personal experience as to the effects of anesthesia in determining the voluntariness of a confession, he violated the prohibition against being a witness under Federal Rule of Evidence 605. US v Lewis, 833F.2d 1380, 1385, 24 Fed. R. Evid. Ser. 432 (9th Cir. 1987). Indiana Rule of Evidence 606 provides that:

Competency of Juror as Witness

(a) At the Trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.
(b) Inquiry into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify (1) to drug or alcohol use by any juror, (2) on the question of whether extraneous prejudicial information was improperly brought to the jury’s attention or (3) whether any outside influence was improperly brought to bear upon any juror. A juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying may not be received for these purposes.

This rule of evidence concerning jurors is comparable to the same rule of evidence which prohibits judges from acting as a witness. I.R.E 605. Additional rules to consider are the following excerpts from Indiana’s Jury Selection Rules:


The court shall determine if the prospective jurors are qualified to serve, or, if disabled but otherwise qualified, could serve with reasonable accommodation.  In order to serve as a juror, a person shall state under oath or affirmation that he or she is:

(a) a citizen of the United States;
(b) at least eighteen (18) years of age;
(c) a resident of the summoning county;
(d) able to read, speak, and understand, the English language;
(e) not suffering from a physical or mental disability that prevents him or her from rendering satisfactory jury service;
(f) not under a guardianship appointment because of mental incapacity;
(g) not a person who has had rights to vote revoked by reason of a felony conviction and whose rights to vote have not been restored; and
(h) not a law enforcement officer, if the trial is for a criminal case.

Persons who are not eligible for jury service shall not serve.  Upon timely advance request from the prospective juror, the court may excuse from reporting for jury service any person whose bona fide religious conviction and affiliation with a religion prevents the prospective juror from performing jury service.


A person who has completed a term of jury service in the twenty-four (24) months preceding the date of the person’s summons may claim exemption from jury service.


(a) In both civil and criminal cases the parties shall make all challenges for cause before the jury is sworn to try the case, or upon a showing of good cause for the delay, before the jury retires to deliberate.   The court shall sustain a challenge for cause if the prospective juror:
(1)  is disqualified under rule 5;
(2)  served as a juror in that same county within the previous three hundred sixty-five  (365) days in a case that resulted in a verdict;
(3)  will be unable to comprehend the evidence and the instructions of the court due to any reason including defective sight or hearing, or inadequate English language communication skills;
(4)  has formed or expressed an opinion about the outcome of the case, and is unable to set that opinion aside and render an impartial verdict based upon the law and the evidence;
(5) was a member of a jury that previously considered the same dispute involving one or more of the same parties;
(6) is related within the fifth degree to the parties, their attorneys, or any witness subpoenaed in the case;
(7)  has a personal interest in the result of the trial;
(8) is biased or prejudiced for or against a party to the case; or
(9) is a person who has been subpoenaed in good faith as a witness in the case.
(b) In criminal cases the court shall sustain a challenge for cause if the prospective juror:
(1)  was a member of the grand jury that issued the indictment;
(2)  is a defendant in a pending criminal case;
(3) in a case in which the death penalty is sought, is not qualified to serve in a death penalty case under law; or
(4) has formed or expressed an opinion about the outcome of the case which appears to be founded upon
a.  a conversation with a witness to the transaction;
b.      reading or hearing witness testimony or a report of witness testimony.

(c) In civil cases the court shall sustain a challenge for cause if the prospective juror is interested in another suit, begun or contemplated, involving the same or a similar matter.


(a) In criminal cases the defendant and prosecution each may challenge peremptorily:
(1)   twenty (20) jurors in prosecutions where the death penalty or life without parole is sought;
(2)   ten (10) jurors when neither the death penalty nor life without parole is sought in prosecutions for murder, and Class A, B, or C felonies, including enhancements; and
(3)   five (5) jurors in prosecutions for all other crimes.
When several defendants are tried together, they must join their challenges.

(b) In civil cases each side may challenge peremptorily three (3) jurors.

(c) In selection of alternate jurors in both civil and criminal cases:
(1)   one (1) peremptory challenge shall be allowed to each side in both criminal and civil cases for every two (2) alternate jurors to be seated;
(2)   the additional peremptory challenges under this subsection may be used only in selecting alternate jurors; and
(3)   peremptory challenges authorized for selection of jurors may not be used in selecting alternate jurors.

(d) If it appears to the court that a particular peremptory challenge may have been used in a constitutionally impermissible manner, the court upon its own initiative may (a) inform the parties of the reasons for its concern, (b) require the party exercising the challenge to explain its reasons for the challenge, and (c) deny the challenge if the proffered basis is constitutionally impermissible.

Be prepared and ready, so that you can keep that one bad apple off your next jury. Good luck!

About Richard A. Cook

Richard Cook graduated from Purdue University in the Economics Honor Program in 1979 and obtained his Juris Doctor degree from Valparaiso University School of Law in 1982. Following law school, Richard served as a federal law clerk in the U.S. District Court for the Northern District of Indiana, Hammond Division. In 1984, Richard began working as Deputy Prosecutor for the Lake County Prosecutor's Office and from there, served as Assistant U. S. Attorney for the Northern District of Indiana, South Bend Division. There he handled a number of complex criminal matters and jury trials. While there, Richard received the Chief Postal Inspector's Special Award and a letter of commendation from the U.S. Attorney General for his work prosecuting a major money order fraud scheme being perpetrated out of the Indiana State Prison system. Since leaving the U.S. Attorney's office in 1989, Richard has focused primarily on civil work and is currently a member of the firm Yosha Cook & Tisch in Indianapolis. Richard is also a member of the ITLA, IBA and the ABA, as well as, a fellow for the American College of Trial Lawyers. He is AV rated by Martindale-Hubbell.

Posted on March 26, 2014, in Uncategorized and tagged , , . Bookmark the permalink. Leave a comment.

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