Jury selection issues continue to be fertile ground for reversal.

In two cases this term, the Fourth Department reversed lower courts that failed to strike potential jurors for cause when those jurors could not give unequivocal assurances of their ability to be fair and impartial. In People v Davis, (2005 NY Slip Op 04719), a corrections officer told the court, in front of the panel of prospective jurors, that he knew defendant. The lower court instructed the panel that the fact of incarceration did not mean the defendant had previously been convicted of a crime; nevertheless, one prospective juror "responded that she could not promise the court that her 'thought processes' would not be affected by the fact that the correction officer knew defendant." (Davis at 2.) The trial court would not excuse the juror for cause, and the Fourth Department found this to be reversible error. (Id.) In People v Papineau, a prospective juror "expressed doubt concerning his ability to be impartial based upon what he had heard from bar patrons who were present on the night of the incident." (Papineau, 2005 NY Slip Op 04894.) The lower court should have elicited an unequivocal assurance from the juror that he could be fair and impartial--the lower court failed to even seek such an assurance, and the Fourth Deparment reversed. (Id.)

Standing alone, these cases are not much worthy of note--neither breaks new ground, and each simply follows the Court of Appeals precedent set in People v Arnold, (96 NY2d 358 [2001].) However, I highlight Davis and Papineau because they represent one of the few consistently winning criminal appellate issues in the Fourth Department.

An aside about Davis--the Fourth Department, assuming in its decision for the sake of argument that "defendant failed to preserve his contention for our review by a timely objection to that prospective juror", reached the Arnold issue in the interest of justice. Maybe I'm just fixated on preservation issues, but it seems to me that a defendant who challenges a juror for cause registers a "timely objection" to that prospective juror. The fact that the Fourth Department felt the need to even discuss whether the Arnold issue was preserved in Davis--when defendant admittedly challenged that juror for cause--is yet another example of the Fourth Department's rigid tightening of preservation doctrine (a phenomenon I've discussed before here and here).