In my last Blog, I wrote about the Illinois "set-aside" rule. Under the set-aside rule, the trial judge can deny your challenge for cause to remove a juror based on personal, negative beliefs of the juror; provided, however, the juror also testified that he or she will set-aside those beliefs and will be fair. For example, a judge can validly deny your challenge for cause where the juror answered "I think jury trials are like high stakes casino gambling for the people, but I can set my personal opinion and be fair to both sides."
Obviously, a juror who testifies that he unequivocally cannot be fair is disqualified. Vrzal v. Contract Transportation Systems Co, 312 Ill. App. 3d 755 (1st D. 2000) Or, a juror who testifies she “might be prejudiced” based on past experiences, attitudes or beliefs is excused for cause. People v. Seaman, 203 Ill.App.3d 871, 889 (5th D. 1990) In this Blog, I will address other grounds for successfully challenging a juror for cause.
Juror Has Per Se Bias
In Illinois, you have limited grounds for challenging a juror for cause based on per se ("automatic") bias, despite the prospective juror stating that he or she can set aside their bias and be fair. Specifically, when a juror has a close relationship to the party, witness or attorney in the case, the judge should grant your challenge for cause based on per se bias under the following scenarios:
- Error not to excuse a prospective juror who has a current physician-patient relationship with the defendant physician. Marcin v. Kipfer 117 Ill. App. 3d 1065, 1067 (4th D 1983);
- Error not to excuse a prospective juror who was employed as a secretary in State's Attorney's office which was prosecuting the case against the defendant. People v. Green, 199 Ill. App. 3d 927, 930 (1990);
- Prospective juror who is a police officer employed by the same Police Department as a testifying police officer who is witness in the case. People v. Stremmel, 258 Ill. App. 3d 93, 111 (2nd D. 1994)
But beyond these close current, direct relationships to a party, witness or attorney in the case on trial, the Illinois courts have not upheld a challenge for cause based on a per se bias objection. For example, a juror who is employed in the medical field, married to a nurse, and is acquainted with the defendant's witnesses does not establish either per se or probable bias in favor of the defendant. Taylor v. R.D. Morgan & Associates, Ltd., 205 Ill. App. 3d 682 (5th D 1990). You have to prove something more. The judge must look at the evidence on a juror-by-juror basis.
The Juror Is Equivocal or Wavering Implying Bias Against Being Fair
As I have pointed out in other Blogs, all prospective jurors drag to court their belief system—their experiences, attitudes and background which shape their world view. The law recognizes that every juror is entitled to have a world view. But the juror must be able to commit to an unwavering assurance to set aside a personal belief and be fair and impartial to survive a challenge for cause. Thompson v. Altheimer & Gray, 248 F.3d 621, 627 (7th Cir., 2001) (juror couldn't say her “background” would not cloud her judgment) If a prospective juror who equivocates about setting aside their world view, then grounds for challenging the juror's removal for cause are established.
Despite a prospective juror testifying that he or she could set-aside their beliefs and listen to the evidence, apply the law and be fair, a challenge for cause was established as follows:
- Prospective jurors had expressed “doubt” and “reluctance to assume an impartial position.” People v. Stone, 61 Ill. App. 3d 654, 667 (5th 1978);
- Prospective juror expressed doubt that she could be fair in a case involving a gun, because she had been a prior victim of a crime involving a gun. People v. Pendelton, 279 Ill. App. 3d 669 (1st 1996);
- Prospective juror equivocated on being fair because he had a “close friend” who died from a drug overdose and the defendant on trial was charged in a controlled substance case. People v. Delgado, 231 Ill. App. 3d 117 (1992);
- Prospective juror gave inconsistent statements about her ability to follow law. The totality of her examination indicated an inability to hold the State to its burden of proof beyond a reasonable doubt. People v. Pendelton, 279 Ill. App. 3d 669 (1st 1996);
- Prospective juror who gave “contradictory” statements about death penalty established cause to remove. People v. Shaw, 186 Ill. 2d 301, 713 N.E. 2d 1161 (1998);
- Prospective juror who's body language said “no” when he verbally answered “yes was contradictory about ability to be fair. People v. Harris, 225 Ill. 2d 1, 33, 866 N.E. 2d 162, 181 (2007)
Hopefully, I have shown you that you some grounds for overcoming the set-aside rule and successfully challenging a prospective juror for cause when you decide that the jurors beliefs are dangerous to your case. The trick is to pin the juror down on his or her beliefs before being rehabilitated under the set-aside rule. in my next Blog, I will show techniques for discovering a prospective juror's beliefs and establishing a bulletproof challenge for cause before opposing counsel or the judge rehabilitates the juror back into the case.