Juries

Should This Juror Have Been Excused for Cause in a Child Rape Prosecution?

|The Volokh Conspiracy |

Tristan James Morales was convicted of raping his 8-year-old niece; he argued that one of the jurors was improperly biased, and should have been excused for cause (as the defense lawyer had argued). Here's the Montana Supreme Court's summary of the facts; do you think the juror should have been excused? The court split 4-3 on this, but you'll need to check the opinion to see which side prevailed.

"On the first day of trial, prior to voir dire, the court distributed a questionnaire to prospective jurors asking whether they or anyone they knew had been a victim of sexual assault or whether they held strong beliefs that would make it difficult to serve as a juror in Morales's case. The court then conducted individual in-chambers voir dire of sixteen prospective jurors based on their responses to the questionnaire. The court released seven of nine jurors Morales challenged for cause based on their experiences with or strong beliefs about sexual assault, one over the prosecution's objection.

"When the questioning turned to prospective juror R.C., she revealed in chambers that her sister, foster children with whom she grew up, and a close friend all had been sexually abused as children. The District Court questioned R.C.:

[Q.] Okay. We all come to the courtroom with personal experiences and our background that shapes how we see the world, our issue here is can you take that information that you have with your friends and whatnot and set that aside and listen to the evidence as it comes in fairly and impartially and follow the instructions on the law that I give you?

[A.] I don't think that I could.

[Q.] And could you elaborate on that, please?

[A.] Because I've seen the emotional damage that it caused later on through these things that — and between that and my religious belief that sexual relations are between a man and woman who have been lawfully married, it is hard for me to set those beliefs aside.

[Q.] Even if I instructed you on the law regarding the State's burden of proof, Mr. Morales'[s] presumption of innocence, and the fact that Mr. Morales does not have to present any evidence in this case whatsoever, do you feel like your background and experience would cause you a problem?

[A.] Probably not, then.

[Q.] So you would follow my instructions?

[A.] I would follow your instructions, yes, although it would be difficult to set this aside.

[Q.] Okay.

[A.] It's a hard place for me to be to try to—I've never been in that situation where I've had to separate those two beliefs.

[Q.] It's not necessarily separating, you can't forget everything you know, that's the reality. The issue, ma'am, is—like I say, we all come to this with backgrounds and experiences; the issue is Mr. Morales is guaranteed a fair trial; that during this trial process, it's the State that has the burden of proof, and that burden of proof is beyond a reasonable doubt; and because the State has the burden of proof, Mr. Morales doesn't have to present any evidence whatsoever. Furthermore, you cannot draw any type of negative inference if he chooses not to present any evidence.

Furthermore, he also has a guaranteed constitutional right not to testify. I would instruct you specifically on his constitutional right to testify, it's a right we all enjoy as citizens, but you can't consider it in any way, and furthermore, you cannot let it enter into your jury deliberations in any way.

So that's a synopsis of some of the law I would instruct you on in this case with regard to some of those issues; would you follow the law I give you?

[A.] (No verbal response.)

[Q.] And there's no right or wrong answer here, what I and the parties are looking for is for you just to tell us the truth.

[A.] (No verbal response.)

"At this point, the prosecutor asked the court if she could elaborate and engaged R.C. in the following line of questioning:

[Q.] [Morales is] charged with something; right?

[A.] Right.

[Q.] We are not asking you to say that an act is okay, you are not setting aside your religious beliefs, the law is that it's not okay, so what you need to decide is if he did it, he's guilty, right, and so the State has to prove that to you.

[A.] Right.

[Q.] So do you understand that difference?

[A.] I do understand that difference.

[Q.] That we are not asking you to decide that conduct is okay.

[A.] Right.

[Q.] Can you fairly listen to the evidence and be impartial when you are deciding another person's guilt?

[A.] I think that I could.

[Q.] You think that you could?

[A.] I think, I'm not—

[Q.] But can you—if the State fails to prove its case, you're listening to our witnesses, and it doesn't come together and we don't prove it, can you find him not guilty?

[A.] Yeah, I guess you're unable to prove—if all the facts are laid out and you are unable to prove without a doubt, then that's what it is.

"Defense counsel then followed up:

[Q.] Do you like judging people?

[A.] Not particularly.

[Q.] Does your religious belief system suggest you not judge people?

[A.] Yes.

[Q.] Your personal experience with the group of people you've identified— your sister, the foster children and friends—does that make you feel pretty angry?

[A.] Not angry.

[Q.] Resentful?

[A.] Pained, is that the same thing—I don't think that's resentful.

[Q.] Do you feel a need to exercise out that pain?

[A.] No.

[Q.] If Mr. Morales says nothing, does nothing, do you expect him to defend himself?

[A.] I would expect his—you, as his representative, to defend him.

[Q.] And if we choose to sit quietly and say to the Court we choose not to put on a defense, will you hold that against him?

[A.] No, because they would be expected to prove their case.

[Q.] Would you anticipate that he—would you infer anything by him not putting on a case?

[A.] Yeah, I think so.

[Q.] What would you infer?

[A.] Probably guilt, because if you have nothing to hide, you hide nothing.

"Morales moved to strike R.C. for cause. The prosecutor asked R.C. whether she would be able to follow the court's instructions and not infer guilt if Morales exercised his constitutional right to not testify. R.C. replied, 'As a citizen, I would have to follow the law. Personal beliefs, I would have to set aside.' The court addressed R.C.:

[Q.]… I want to come back to your job as a juror [] to listen to the evidence and make a decision on whether he's guilty or not guilty, and that's on the evidence presented in the courtroom only and the law as instructed by me. Now, I can tell you right now what I'm going to instruct you on if you serve as a juror, number one, they have the burden of proof.

[A.] Right.

[Q.] They have to prove the offense, every element of it beyond a reasonable doubt; two, if the State doesn't meet their burden of proof, you must find him not guilty; three, the Defendant has absolutely no burden of proof, he may choose to rely on the State's failure to prove their case; four, individually, he has a constitutional right guaranteed by the United States and Montana constitutions, something we all enjoy as citizens, not to testify; and furthermore, you cannot infer anything based on his decision not to testify, and you cannot let that enter into your jury deliberations in any way; can you follow the law that I give you?

[A.] Yes.

[Q.] And despite knowing former foster children and relatives and friends who have been sexually abused, can you put that aside and judge Mr. Morales based solely on the evidence in this courtroom and not let that personal bias or knowledge that you have impact Mr. Morales and the evidence you hear in this courtroom?

[A.] Yes.

[Q.] Are you certain?

[A.] Yes.

Read the opinion to see the court's analysis. [UPDATE: Note that "Morales subsequently used a peremptory challenge to strike [R.C.] from the panel and exhausted all of his peremptory challenges"; the basis for his appeal was that the trial court erred in refusing to remove R.C. for cause, and that, though R.C. didn't end up on the jury, Morales had to use a peremptory challenge on her that he should have otherwise been able to use to strike someone else. My question here is what the trial court should have done.]

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  1. One of the (many) reasons why I oppose jury trials in general is that I don’t think there is a truly right answer to this kind of question.

    1. I think most trial judges I’ve appeared before would have excused her. But I don’t think it’s reversible error.

    2. I don’t follow the logic. I agree that there is not truly a right answer to this kind of question, but that is true in close cases of a judge’s recusal. Or any number of situations. It doesn’t seem that the solution is simply to avoid having to answer that question.

      I know you come from a different legal culture and your opinions are always thoughtful, so could you expand on that?

  2. Well, it can get complex, because society has changed a whole lot since a ‘jury of you peers’ was based in existing class distinctions.
    A true jury of the accused’s peers would have to be made up of child molesters.
    I think a jury of ‘real’ people is preferable to trusting only lawyers and judges. The current system of each side trying to stack the jury ahead of the trial, however, is ridiculous. It would be more fair to just randomly assign the jury pool into groups of 12 plus the state’s designated number of alternates, and assign those groups to trials at random.

    1. “A true jury of the accused’s peers would have to be made up of child molesters.”

      alleged child molestors, but even with that modifier it isnt right. “peers” in this context has never meant only people accused or convicted of the instant offense.

    2. “A true jury of the accused’s peers would have to be made up of child molesters.”

      Or people falsely accused of child molestation?

  3. or whether they held strong beliefs that would make it difficult to serve as a juror

    Exactly who the hell doesn’t have strong feelings about the rape of an 8 year old? And if you do find someone who doesn’t what is there about that makes them qualified as juror?

    1. Right. I don’t really understand why prospective jurors are questioned about their feelings about the alleged crime.

      Nobody thinks child rape, or murder, or whatever, is no big deal. The question is whether they can impartially – insofar as humanly possible – evaluate the evidence, in accordance with instructions, as to whether this particular defendant is guilty or not.

      Based on the hesitancy about her reaction to the defendant not testifying I think she should be dismissed.

      1. While I do not think that R.C. lied to the judge, I do have the impression that she answered as she felt she was expected to answer. The power dynamic in this question exerts a pressure that would not necessarily be present during jury deliberations and despite legal instructions might not overcome the inevitable emotional reaction to the states evidence.
        I was not satisfied with RC’s answer to the defense council. Absent the presentation of convincing exculpatory evidence presented by the defense, I expect that there is already a thumb on the scale in RC’s psyche.

    2. And the logic of this sort of argument has no limit. Victim of domestic violence can’t serve on a domestic violence case? Black guy who got beaten up or stopped for driving while Black can’t serve on a police abuse case? Christian conservative who sends kids to religious schools can’t serve in a case alleging a public schoolteacher’s alleged misconduct?

      I’m inclined to go in the other direction; that absent actual proof that a person cannot fairly decide a case on the evidence, a juror should not be excluded based on this sort of experience. We WANT jurors to be able to draw on their life experiences in deciding cases.

      1. I agree.

        1. I agree too. And I agree with bernard11 that being questioned on the feelings about the crime is wrong and, actually, might prime them to believe being fair somehow means they don’t have strong feelings. As he says, much better to ask if they are able to judge the case impartially, to apply the reasonable doubt standard, to not hold the exercise of 5th amendment rights against the accused notwithstanding strong feelings about the alleged crime.

      2. “Black guy who got beaten up or stopped for driving while Black can’t serve on a police abuse case?”

        Anybody who’s had a “bad experience” with the police can’t serve on a case where police credibility is at issue.

  4. Read the article, not the opinion, before typing this. Thoughts: I think for a trial phase, it’d be acceptable to have this juror. As long as the juror is not biased against the defendant and can decide if the defendant is guilty or not impartially, there’s no issue. The strong opinion issue would come in to play if the juror had a predisposition to rendering a guilty/not guilty verdict. So long as the juror wants to ensure only the guilty are convicted and the innocent go free, there’s no issue.

    Now, during sentencing phase? That’d be a different question to consider.

    1. Notwithstanding her comment that she’d consider the defense not presenting a case an admission of guilt?

      1. “Notwithstanding her comment that she’d consider the defense not presenting a case an admission of guilt?”

        That comment gave me pause as well, but further questioning by the court made it seem like that sentiment is what she believes generally, but in a trial setting she wouldn’t hold it against him.

        “[Q.] They have to prove the offense, every element of it beyond a reasonable doubt; two, if the State doesn’t meet their burden of proof, you must find him not guilty; three, the Defendant has absolutely no burden of proof, he may choose to rely on the State’s failure to prove their case; four, individually, he has a constitutional right guaranteed by the United States and Montana constitutions, something we all enjoy as citizens, not to testify; and furthermore, you cannot infer anything based on his decision not to testify, and you cannot let that enter into your jury deliberations in any way; can you follow the law that I give you?

        [A.] Yes.”

        So unless we are to assume she was lying in her response to the judge — don’t we kind of have to give her the benefit of the doubt? She didn’t come off as someone who was being evasive or trying to avoid jury duty or whatnot…she came off as someone who was trying to be as honest as possible about what she believes and what kind of juror she would be.

        I would assume that a typical juror under most circumstances would be influenced in some minor or major way due to a refusal to testify by a defendant…the idea that only the guilty have something to hide is a pretty common sentiment.

        She still believes the prosecution has to prove the case beyond a reasonable doubt.

        This is a case that I think could have gone either way and either outcome would have been acceptable

        1. That response seems to be dependent on the assumption that the prosecution proves their case. I think the judge missed a good follow up question of “What if you thought the prosecution didn’t prove their case?”

          1. [i]”the judge missed a good follow up question of “What if you thought the prosecution didn’t prove their case?”[/i]

            That was kind of included in the question when the judge stated :

            “if the State doesn’t meet their burden of proof, you must find him not guilty”
            — but I agree it would be valuable as an explicit follow-up question. The judge’s question was long and the simple YES doesn’t make it obvious she is agreeing to the everything being asked,

            1. I think the judge erred in making that a statement rather than a question.

              As to the yes/no responses, I’ve found that’s what they’re looking for in cases. I haven’t yet come across a judge say “please answer in paragraph form”.

              1. “As to the yes/no responses, I’ve found that’s what they’re looking for in cases”

                I got called for jury duty once. Actually had to sit through voir dire for one case. A DUI.

                All they wanted was yes or no answers. On potential juror (not me) was adamant that a yes/no answer wasn’t adequate on a particular question and refused to answer yes or no. The judge spent several minutes (without prompting by either lawyer) trying to coax a yes/no answer out of that person before finally relenting.

                One of the questions was “Do you drink?”. Every one who answered “no” was excused from that jury.

                Several people tried to get out of jury duty completely. For the most part the judge wasn’t having any of that.

                Only two people got any relief on that point.

                A pregnant woman who was told to talk to the Clerk of the Courts and have her jury duty rescheduled for nine months hence.

                A man who said he had been tried for a crime he didn’t commit and would never vote to convict anyone. The judge ordered that the Clerk of Courts take him off the jury duty roll permanently.

        2. In the published opinion one if the precedents speaks to “single word” or “single syllable” answers as being suspect of real intent. In other words… the setting and power dynamic is such that a prospective juror being further questioned in an attempt to get the juror to clearly understand the distinction between the heinous nature of an act and the concept of guilt may produce the desired answers “Can you set aside bias? A: Yes” that are evidence of compliance and a desire to make the judge happy (who wants to give an answer the judge doesn’t want?) rather than a change of heart or real understanding of the juror’s role. In this particular case it seems like R.C should have been dismissed. What is the harm of being overly cautious in the construction of a jury?

        3. “can you follow the law that I give you?”

          Did she understand the law as he gave her?

          I’d have serious doubts that someone unfamiliar with all those concepts could have comprehended what he said.

          1. I would have asked her to restate each (of the four) concepts in her own words before going on to the next. If someone can’t do that, the person didn’t understand what you said — no matter how much the person wishes to please you by pretending otherwise.

            It’s why on a submarine each order is repeated back by two different people — to give the Captain time to say “no…”

  5. Since the juror was ultimately dismissed why was this challenge relevant? If the defendant had more challenges which juror would he have dismissed and how would that have affected th outcome?

    Could not the defendant simply exhaust their premptory challenges whenever a court refuses to release a juror for cause and have a built in appeal?

    1. The law in Montana is that if the juror should have been struck for cause and the defense uses up their peremptory challenges, then automatic reversal is required. (From the case.)

      My first thought was also that, if you get overruled on any challenge for cause, the defense will definitely use up all their peremptory challenges. In fact, I think it would likely be malpractice not to do so.

      Which raises the issue if the rule makes sense. I don’t have a strong feeling about that.

  6. At a recent jury selection, when I was defending a nursing home in a civil case, one prospective juror said he had a bad opinion of nursing homes based on past experiences with his parents, but he thought he could be objective individually on this one case. Over objection, I got him struck for cause. The same should have been done here.

  7. I’m going to give my take before reading the opinion so I have some skin in the game, so to speak. After doing numerous sex crime trials in Alaska, that juror would be excused. We typically do individual voir dire in sex cases to discuss issues like this and given the history she described, she would be excused.

    1. “I’m going to give my take before reading the opinion so I have some skin in the game, so to speak. After doing numerous sex crime trials in Alaska, that juror would be excused. We typically do individual voir dire in sex cases to discuss issues like this and given the history she described, she would be excused.”

      Based on your experience….if she wasn’t excused, would you think that’s wrong or unfair ?

      Personally I think both outcomes (excuse/not excuse) would be acceptable/fair

  8. I think the first court should have dismissed RC for cause. But, since the defense was able to dismiss her anyway, I think the resulting jury’s verdict should stand.
    I am no a lawyer and have no idea what the correct legal ruling should be. I just think this is the just one.
    Now I’ll need to go read what the court decided. 🙂

    1. The problem is what if there was a juror the defendant would have liked to excuse with a challenge but didn’t have a challenge because he was (potentially wrongly) forced to use it on a juror that should have been dismissed for cause? That is the issue. To me there is no harm in being overly protective of the make up of a jury. The bar to be on a jury being high (meaning clearly understanding the role of the jury being a decider of fact and guilt rather than moralizing on the act in question regardless of the defendant’s guilt or innocence) causes no damage to justice that I can see.

      1. To me there is no harm in being overly protective of the make up of a jury.

        The prosecution — and the public it represents — is also entitled to a fair jury. “Overly protective” sounds to me like the court “not following the law,” and there is indeed harm in that: Deliberately skewing the system, being “overly protective,” would eventually result in juries guaranteed to acquit.

  9. UPDATE: Note that “Morales subsequently used a peremptory challenge to strike [R.C.] from the panel and exhausted all of his peremptory challenges”; the basis for his appeal was that the trial court erred in refusing to remove R.C. for cause, and that, though R.C. didn’t end up on the jury, Morales had to use a peremptory challenge on her that he should have otherwise been able to use to strike someone else.

    This is not my area of speciality, but my understanding is that “I had to waste a peremptory challenge on this person because you wouldn’t strike them for cause” is not a winning argument in the vast majority of jurisdictions (but I guess not Montana), because you didn’t actually suffer any harm; that juror didn’t serve. You just had to keep some other juror that you didn’t want, but that isn’t a constitutional harm, because there was no cause to strike that other juror either. (You’d face the same problem if you ran out of peremptories for any other reason.) Of course, if you ran out of peremptories before the judge denied your motion to strike for cause, that would be a different story. I know that wasn’t your point, but I just wanted to mention that.

    As to what the trial court should’ve done: it’s a close call, but I think this juror adequately said she could be fair; this wasn’t a case where the judge and prosecutor twisted arms for a grudging answer.

  10. I have not yet read the opinion, but will do so after leaving this comment:

    Were I the trial judge, I wouldn’t have permitted some of the questions that were asked, even though they weren’t objected to. They’re slightly skewed — not quite accurate statements of the law — which can and often does, in turn, cause the answers thereto to be confused, contradictory, and ultimately irrelevant.

    The trial judge had the benefit — and we do not — of hearing and seeing the prospective juror as she answered. But just based on the transcript, and presuming there wasn’t anything in the prospective juror’s demeanor which struck the judge as more important than her answers:

    There is certainly is a sufficient basis for the trial judge to have concluded that the juror could follow the court’s instructions and obey her oath. There’s no reason apparent from the transcript to believe that she was insincere in her promises to follow the court’s instructions, despite some other answers which might suggest otherwise.

    So I would have denied the challenge for cause, had I been the trial judge. And in general, muddy records work to the disadvantage of appellants. If I were an appellate judge sitting in review, I would affirm the denial of the challenge for cause.

    1. Having now read the majority & dissenting opinions:

      I think the dissents essentially ignore the appropriate standard of review and are unpersuasive.

      My own jury trial experience is in the civil courts of Texas, rather than the criminal courts of Montana, but I think this case would probably have come out the same way, at both levels, had it been tried in Texas.

      How’s that for avoiding spoilers? 🙂

      1. Funny, I thought the majority ignored the appropriate standard of review and was unpersuasive.

        They restated the standard as:

        “If a prospective juror makes a suspect statement, counsel or the court may ask open-ended questions to investigate, clarify, or confirm whether a serious question exists about the juror’s bias or impartiality. Johnson, ¶ 12; Allen, ¶ 26. It is improper, however, for counsel or the court to attempt to rehabilitate the juror by asking leading or loaded questions eliciting a one-syllable answer, such as whether the juror will follow the law, jury instructions, or an order of the court.”

        I think the majority was wrong and the dissent was right regarding whether the trial court followed this standard. While I think the issue of whether the rules should be such that this juror should be stricken is a very debatable, I don’t actually think this case was very close, given Montana precedent.

  11. This is definitely a tough call and I can see why it split the Court as sharply as it did. I generally err on the side of deferring to attorneys when it comes to challenges “for cause” unless there is discrimination or an attorney looks like he/she is trying to skirt limits on peremptory challenges. The fact that the Court required such an extensive voir dire to satisfy itself is all the more reason to defer to the requesting attorney in my opinion. There is comparatively little harm to the State in seating one different juror (especially if it is one that both sides are comfortable with) versus the Constitutional harm to the Defendant.

    1. I very much agree.

  12. I would have stricken this juror. But since the only effect was to use up a peremptory challenge I would not vote to require a retrial.

    1. But Montana law is that, if the juror should have been stricken and, as in this case, the defense uses a peremptory challenge to strike the juror and uses up all its remaining peremptory challenges, then reversal and retrial is required.

  13. The elephant in the room here is that we all know that a man accused of a sex crime against a child can’t possibly get a fair trial.

    1. Doesn’t matter, since we all know that a man accused of a sex crime against a child is guilty.

  14. I read the article, the opinion and the dissents. I’m with Justice Gustafson’s dissent:

    “¶36 In my opinion, the direction we have provided for district courts to reach consistent decisions regarding for-cause challenges to jurors has been lacking, resulting in an increased number of such appeals. I believe our prior holdings to err on the side of caution and remove a juror if questioning raises considerable doubts as to the juror’s ability to be fair and impartial can and should be interpreted as a presumption for recusal if a juror expresses unprompted statements indicating she or he could not be impartial or advances a fixed or set belief indicating the existence of a bias or prejudice to either side. The presumption could then only be overcome if, in the course of open-discussion—not leading questions followed by monosyllabic responses—the juror unequivocally expresses an ability to set aside the set belief or bias or otherwise expresses recognition that his or her shared experience would not impact the way in which the juror perceives the alleged victim, the defendant, or the state.”

    RC sounds to me like she wants to sound competent and gets talked into temporarily agreeing by giving monosyllabic answers, which is supposed to be a giveaway.

    In the opinion the justices deciding for the majority do say that it is reversible, if the defendant had to use their last challenge to get rid of this juror who proved partial in voir dire. So I think they should have recognized RC was being led and at that point they had to give him a new trial. If he had had that extra challenge and they had to replace both RC and someone else, it might have had a different outcome. I’m not a lawyer.

  15. She told ’em, up-front, to the very first question, that she didn’t think she could be fair.

    Everything after that point is the state’s lawyer trying to downplay her initial answer, and badger her into changing it.

    Someone needs to tell that lawyer that “no means no”.

    1. Perfect.

    2. See, the thing is, it turns out that lots of people don’t want to serve on juries. If we just accepted “No” to the question “Can you be fair” without probing, we’d have juries full of only retired people who are bored and get a thrill out of leaving the house for trials.

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