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Denied juror strike warrants new trial

Virginia Lawyers Weekly//September 6, 2023

Denied juror strike warrants new trial

Virginia Lawyers Weekly//September 6, 2023//

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Where a juror at appellant’s rape trial “never committed to ‘render[ing] a verdict based solely on the law and evidence presented at trial,’” the trial court erred by not striking the juror for cause.


Appellant “was convicted by a jury of rape, second or subsequent offense, … and assault and battery[.] …

“Appellant contends the court erred by failing to strike a juror for cause. For the following reasons, we reverse and remand appellant’s convictions for a new trial.”


“Appellant argues that the court abused its discretion by denying his motion to strike Juror 49 for cause. He asserts that Juror 49’s statements reveal a presumption of guilt because the juror expressed a belief that accusations of sexual assault are inherently credible.

“Additionally, he argues, Juror 49’s responses to the Commonwealth’s questioning did not evince an ability to set that bias aside. We agree.

“Juror 49 repeatedly demonstrated that he held a preconceived view which ‘repel[ed] the presumption of innocence.’ … Although Juror 49 initially stated that a complaining witness was only ‘more likely’ to be telling the truth, he later unequivocally stated, ‘do I believe if [a complaining witness] came forward and she says she was raped, that she was raped? Yes.’

“This apparent inconsistency in his responses did not elicit any further questions and was never resolved. Regardless, Juror 49 ‘start[ed] with the premise that he would believe a [complaining witness] over another witness. This is the lens through which he would evaluate whether the [complaining witness] is lying. It is not a neutral evaluation.’ …

“Juror 49’s answers to questions about whether he could set his bias aside were equivocal and insufficient to rehabilitate him. When asked if it would be difficult for him to ‘un-feel that bias,’ he stated that he could only ‘give [it his] best try to set that aside’ but immediately reiterated that ‘there is a bias in that regard.’ …

“Juror 49 never committed to ‘render[ing] a verdict based solely on the law and evidence presented at trial,’ … Juror 49 merely elaborated on his bias, maintaining that although ‘someone who said they were raped is more believable,’ the perpetrator’s identity might still be in question, and he would not find appellant guilty if the Commonwealth could not prove appellant’s identity as the rapist.

“This comment in and of itself required rehabilitation, as it indicates an unwillingness or inability to consider appellant’s consent defense and implies that such testimony by the complaining witness would automatically establish the corpus delicti. …

“Moreover, Juror 49 was never asked whether he could presume appellant innocent until proven guilty after he gave responses inconsistent with this principle of law. … ‘[C]onsider[ing] the juror’s entire voir dire,’ Juror 49’s responses created reasonable doubt about his qualifications to serve on a jury.”

Reversed and remanded for a new trial.

Hicks v. Commonwealth, Record No. 0659-22-4, Aug. 15, 2023. CAV (unpublished opinion) (per curiam) From the Circuit Court of Arlington County. (DiMatteo) Allison H. Carpenter, Marissa Ulman for appellant. Lindsay M. Brooker, Jason S. Miyares for appellee. VLW 023-7-329, 8 pp.

VLW 023-7-329

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