Juror concealment

Last month, in State v. Rowell, the South Carolina Supreme Court overruled a number of its prior decisions regarding how courts should deal with jurors who have been dishonest about their potential bias.

Adam Rowell was convicted by a jury of two counts of “felony DUI”—a DUI that results in death or great bodily injury to someone. After his conviction, he discovered that one of the jurors had pending criminal charges which the juror had failed to disclose. Rowell moved for a new trial and asked for a hearing regarding the juror’s failure to disclose his arrest.

The trial judge refused to hold a hearing, and the Court of Appeals affirmed. The South Carolina Supreme Court reversed the case and sent it back to the trial court for there to be a hearing on whether the juror’s failure to disclose the arrest prejudiced Rowell such that he should be given a new trial with a new jury. In doing so, the Court overruled several of its prior decisions in this area and created a new rule that both civil and criminal trial lawyers should be aware of.

Jury (de)selection and voir dire

It’s a real misnomer to say that lawyers “pick” juries. Jury selection in South Carolina is governed by a mess of statutes which, if you’re having trouble sleeping tonight, you can find here.

The Clerk of Court (basically) calls names out of a hat and lawyers have a limited number of “strikes” which he can use to remove a juror for almost any reason. Lawyers can also challenge a juror “for cause.” There's no limit to the number challenges for cause, but they are only granted if the judge believes that the juror can’t be fair and impartial, i.e., rarely. This is why sometimes you’ll hear seasoned trial lawyers say they “unpick” or “deselect” a jury.

Before the Clerk of Court begins calling out names to be struck or seated, there are two phases of jury selection not as widely known about. Jury qualification comes first. All the potential jurors get called into a courtroom before a judge who asks them general qualification questions and will remove anyone who is unqualified. For example, if a person doesn't understand English, they aren’t qualified and will be sent home.

Once unqualified people are removed, a smaller number of potential jurors will be called into a courtroom to go through a process called voir dire. How you pronounce that is totally up to you. I find myself saying “vwa deer” but sometimes it comes out the way old-school trial judges say it–“vor dyer.” Voir dire is a process where—in South Carolina—the trial judge will ask more specific questions of the potential jurors to determine possible biases individuals may have that are relevant to the particular case they will be asked to decide.

In many other states, lawyers conduct the voir dire, meaning lawyers ask the jurors questions directly. This isn't currently allowed in South Carolina (except in death penalty cases) and many trial lawyers are hoping to change that. But as it stands now, lawyers submit proposed questions to the trial judge to be asked of the potential jurors and the judge may or may not ask those proposed questions.

Juror concealment

The importance of voir dire really can’t be overstated. Lawyers want to probe an individual’s thoughts and feelings that might predispose them to vote a certain way in the jury room. It is the process by which lawyers, and the court, attempt to ensure that every juror who is seated can be fair and impartial in this case. And this goal can’t realistically be achieved if jurors conceal information about themselves or don't answer questions honestly during the voir dire process.

The Rowell case presented the Supreme Court with the question as to how trial judges should deal with jurors who fail to honestly answer questions during voir dire. Specifically in Rowell, the trial judge asked the potential jurors whether they had “ever been arrested or charged with a criminal offense.” Juror 164 didn’t respond to this question and was ultimately seated and voted to convict Rowell.

Afterwards, the defense team discovered that Juror 164 had been arrested the week before trial for drug crimes and unlawful neglect of a child. And interestingly, while there was no allegation made that the prosecutor knew of the arrest, the prosecutor assigned to prosecute Juror 164’s crimes was the same prosecutor who was prosecuting Rowell(!). I do wonder what criminal defendant would want to strike a juror who also had pending criminal charges with the same prosecutor's office. Maybe that juror would be more likely to be in your corner, right?  

The old rule

Until the Supreme Court’s ruling last month in Rowell, the rule regarding juror concealment was that a trial court first had to determine whether the juror’s failure to disclose information during voir dire was intentional or unintentional. If the judge determined that the juror intentionally failed to disclose information during voir dire, the juror was presumed to have been biased. Still, the party asking for a new trial would have to show that the information the juror concealed would have been a material factor in the use of one of its strikes.

If, on the other hand, the concealment was unintentional, the party asking for a new trial would have to prove that the concealed information showed bias on the part of the juror, and the concealed information would have been a material factor in the use of a strike or a successful challenge for cause. This rule came from a number of previous Supreme Court cases, most importantly State v. Coaxum, and State v. Woods.

The new rule

In Rowell, both the trial judge and the Court of Appeals determined that Juror 164’s failure to disclose his arrest was unintentional which ended their inquiry into the matter. Rowell’s motion for a new trial was denied without a hearing. But the Supreme Court held that “the time has come to abandon the intentional versus unintentional distinction.” The Supreme Court has now simplified the analysis as such: “Where a party claims a juror has withheld material information in response to a voir dire question, the trial court must determine, preferably after a hearing, whether the juror’s withholding suggests bias.”

Juror bias may no longer be presumed for a juror’s failure to truthfully answer a voir dire question. Instead, the party seeking a new trial based on juror concealment must show that the “concealed information reveals a potential for bias and would have made a difference in the moving party’s use of a peremptory strike or resulted in a successful challenge for cause.” The Court held that a hearing is not required based on the mere allegation of concealment, but “a trial court must document cogent and compelling reasons for not holding” a hearing on the matter.

Conclusion

The new rule is certainly simpler than the old one by removing the task of speculating as to whether a juror intentionally withheld information. It puts the ball in the challenger’s court—if you discover that a juror failed to answer a voir dire question truthfully, you had better be able to show why the concealed information was critical to the juror’s ability to be fair and impartial, i.e., had you known the concealed information you would have struck the juror.

One of the most common questions I get from friends and family is how to get out of jury duty. I hate the question, and it frustrates me that so many people loath the idea of serving on a jury. I suspect that most people who sit on a jury find the experience rewarding. So, what I would say to them, instead of trying to get out of jury duty, pay attention to the questions the judge and lawyers ask you, and answer them honestly.

adam@ruffinappeals.com

(803) 470-5629

1320 Main Street, Suite 300,

Columbia, SC 29201