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Refusal to exclude juror for cause upheld

Virginia Lawyers Weekly//February 4, 2023

Refusal to exclude juror for cause upheld

Virginia Lawyers Weekly//February 4, 2023

Where a juror at appellant’s trials for rape, unlawful filming and other sex and assaultive crimes stated during voir dire that she had a friend who was raped, the trial court properly denied a defense motion to strike the juror.

Motion to strike juror

“During voir dire, the prosecutor asked the jurors whether they would be able to watch a video showing the rape of the unconscious victim.” Another person made a video of appellant attacking the victims.

“Juror 19 said that she had a friend who was raped while unconscious. Following additional questioning, defense counsel objected to the seating of Juror 19. The trial court denied the motion to strike her for cause. …

“[T]he trial court found that Juror 19 could be impartial, and that finding is entitled to deference on appeal unless plainly wrong.”

Support for finding

“Additionally, the voir dire as a whole supports the trial court’s finding of impartiality. Juror 19 explained that she had a close friend who had been raped.

“She initially stated that she would ‘be fine’ considering the rape charge fairly ‘without a video’ but that ‘with a video’ and in light of the appellant’s defense of consent, she was ‘not sure [she] could do that fairly.’

“In response to further questioning, Juror 19 responded that she could evaluate evidence in addition to the video but would probably be ‘sway[ed]’ by the video.

“Additional voir dire blended several subjects, including the juror’s possible bias and her thoughts about the persuasive value of video evidence. The juror also volunteered what she knew about the law of unconsciousness and consent.

“The trial court’s exchange with her constituted merely clarifying the juror understood that, after receiving the court’s instructions on the law of consent, she would be free to consider all of the evidence and would need merely to ‘be open to consider’ the defense. Juror 19 replied that she ‘would try to’ and ‘th[ought]’ she could do so.

“The court again instructed her that she would have to wait for the evidence and that the voir dire was just to ‘know’ if she ‘c[ould] apply the law that [the court would] give [her].’ After that further explanation by the court, the prosecutor again asked Juror 19 whether she could consider evidence that the alleged victim consented and evidence that she did not consent.

“Both times the juror responded unequivocally in the affirmative.”

No fixed bias

“Juror 19’s combined responses indicate that she did not present a fixed bias based on her experience with her friend. To the contrary, she indicated merely that the existence of a video of the contact could be persuasive evidence on the issue of consent.

“This record supports the trial court’s finding that the challenged juror never stated a fixed opinion and indicated that she could be impartial. It was within the province of the trial court, the finder of fact on these issues, to determine what significance to give the juror’s statements, including her use of the language, ‘I think.’”


“The appellant suggests that the trial court engaged in overly ‘aggressive questioning’ of the juror while attempting to rehabilitate her and thereby ‘undermined the confidence in the voir dire examination.’

“We recognize that ‘when a trial court itself becomes involved in the rehabilitation of a potential juror, we must review the court’s decision to retain the person on the panel more carefully.’ …

“The record here supports the conclusion that the trial judge, while ‘remain[ing] relatively detached,’ was able to assess whether Juror 19 was impermissibly biased or would be able to apply the law in the instructions after the presentation of all the evidence. …

“To the extent the juror gave responses that were unclear, the judge clarified them and confirmed that the juror could sit impartially. Although the court asked a series of questions regarding the law, the prosecutor asked the final questions.

“When the juror was asked if she could consider evidence from both the prosecution and the defense on the issue of consent, she responded, ‘Yes,’ and ‘Absolutely.’ In the end, the record supports the conclusion that the juror did not demonstrate a fixed bias and that the trial court’s questioning and instruction constituted appropriate clarification, not improper rehabilitation.

“Accordingly, the court’s denial of the appellant’s motion to strike the juror was not error.”

Harvey v. Commonwealth, Record No. 0723-21-2, Jan. 24, 2023. CAV (published opinion) (Decker). From the Circuit Court of the City of Richmond (Marchant). Kelsey Bulger for appellant. Rosemary V. Bourne, Jason S. Miyares for appellee. VLW 023-7-032, 38 pp.

VLW 023-7-032

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