Friday, October 28, 2005

Court of Appeals: 'expurgatory oath' sufficient to cure potential juror's previous ambiguous statements on ability to be fair and impartial

People v Shulman, 2005 NY Slip Op 07827

The other decision of note handed down this week by the Court of Appeals is People v Shulman (2005 WL 2759199, 2005 NY Slip Op 07827 [available here]). The opinion (authored by Judge Read) is a big'un, as is to be expected in a death-penalty case. Besides being notable for one of the truly gruesome recitations of fact to be found in a published criminal decision (severed limbs figure prominently), the opinion does not break much new legal ground. In fact, beyond clarifying the first-degree "similar fashion" murder statute, the most interesting aspect of the opinion deals with Arnold-type jury selection issues.

Defendant argued on appeal that two prospective jurors should have been struck for cause because their responses during voir dire raised a doubt as to their ability to be fair and impartial. The first potential juror (a former correction's officer) wrote in his jury questionnaire that "life without parole" meant "'3 hots and a cot, free medical, $50[,]000 a year wasted." The second potential juror "answered questions probing her ability to put her opinion [regarding defendant's guilt] aside by stating that 'I think I can' or that she would 'try.'" (People v Shulman, 2005 WL 2759199 at *__ [2005].) Both jurors subsequently recited the 'expurgatory oath', i.e. each juror "assured the trial court and the parties that [they] could be impartial." (Id.) This was enough for the Judge Read and the unanimous Court:

As we have noted, words like 'think or try' are 'not . . . talismanic word[s] that automatically make[] a statement equivocal. [The juror's] other answers dispelled any doubt about her ability to deliberate impartially. [...] In light of that response as well as her many other assurances of impartiality, the trial court had ample basis for rejecting defendant's for cause challenge to [the juror].


Again, this opinion does not break any new ground, but it does reinforce an important concept for trial defense attorneys to keep in mind during jury voir dire--often, it is a juror's final statement on his or her ability to be impartial that controls. No matter how much a juror equivocates, an appellate court is probably not going to disturb a trial judge's denial of a 'for cause' challenge if the potential juror finishes her colloquy by agreeing that she can be fair and impartial. Prosecutors and trial judges are increasingly savvy on this score (perhaps because the Fourth Department continues to hand down reversals based on failure to elicit an unequivocal assurance that a juror can be fair and impartial (see my previous posts here and here.), and I think it is almost inevitable that this 'fertile ground' for reversal will eventually dry up.