DUI Law Blog : DUI Lawyer & Attorney : Drunk Driving Defense & DWI News : Dan Jaffe

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The District Court of Appeal of Florida, Fifth District, reversed a conviction for DUI based, in part, on the trial judge seating a juror who had expressed bias. In Ibarrondo v. Florida, decided on December 24, 2008, the court wisely held that the prosecutor's rehabilitation of the trial juror did not erase his bias and required a reversal of the DUI conviction. Quotes from the case dealing with DUI juror bias:

The defense moved to strike the potential juror for cause. The prosecutor asserted that she had inquired "if [he] would evaluate everyone equally before he made that decision, and he said he would, and he would evaluate everyone fairly. That he would hope that law enforcement officers would be more credible, which, I think, is a feeling everyone in society should have." The trial court denied the challenge for cause "simply because [the potential juror] said that he could be fair." In view of the denial of his strike for cause, defense counsel requested an additional peremptory challenge to exercise on the subject juror. The trial court asked if the next juror in line was acceptable to the defense and defense counsel answered affirmatively. The prosecutor, however, insisted on the use of the subject juror primarily because the defense had exhausted all of its peremptory challenges. The trial court announced the line-up of jurors, including the challenged juror, and asked if the parties had any objections. Defense counsel stated that the jurors announced were not acceptable and objected to the panel as a whole. The objection was acknowledged and the jury sworn in. We conclude that defense counsel properly preserved the error for review. The Florida Supreme Court has warned that the "statement of a juror that he can readily render a verdict according to the evidence, notwithstanding an opinion entertained, will not alone render him competent if it otherwise appears that his formed opinion is of such a fixed and settled nature as not readily to yield to the evidence."

Discussion: I see this all the time in court, especially with young prosecutors. They think that all they need to rehabilitate an obviously biased juror is to get the juror to say "I can be fair and impartial." Some judges still buy this, not realizing that it subjects them to reversal if the record is properly preserved. The prosecutor, wanting the trial win badly, doesn't realize that it subjects him or her to having to retry the case. The good and fair prosecutors (the most ethical ones) will agree to toss a juror for cause whenever there is the slightest hint of bias.