Before the 2019 amendments, counsel for the accused would present a written legal argument to the assigned trial Judge providing materials and evidentiary support alleging a need that each potential juror be questioned as to their possible bias against the accused that could make them unlikely or unable to render a fair verdict. These applications are usually based upon adverse pretrial publicity in the community where the accused is to be tried.
If the court, after receiving the written materials and hearing argument by the Crown and defence, determines that it is appropriate to grant an order that potential jurors be challenged for cause, the court then would order that challenging each potential juror for cause would be permitted. The court order permits counsel for the accused to ask questions approved in advance by the court, of all potential jurors in an effort to demonstrate that each potential juror(s) should be excluded from jury duty because of partiality based upon adverse pretrial publicity.
Partiality suggests that the potential juror may hold a negative opinion of the accused or an unfair bias against the accused based upon adverse or negative publicity about the accused and/or negative pretrial publicity concerning the circumstances of the case. The reason or reasons why a potential juror may not be impartial need not be specifically identified. The finding of potential partiality in favour of the prosecution or more specifically against the accused is sufficient for the court to order that the juror be questioned under oath as permitted by the court.
Usually, the specific questions that may be permitted by the court as appropriate are approved by the court before counsel embarks upon this inquiry. Most often partiality is successfully demonstrated by counsel by having the potential juror admit that the juror is aware of adverse publicity casting the accused in unfavourable light and potentially inflaming members of the community against the accused. Only impartial jurors, that is, only jurors without a pre-determined bias, are presumably appropriate to participate in the jury process aimed at finding guilt or innocence.
If an application to challenge potential jurors for cause is successful each potential juror is disqualified from participating in the trial based upon that apparent bias against the accused even before any evidence is called in the case. In the process of determining whether there is potential bias, counsel for the accused is permitted to ask questions of potential jurors related to the adverse effects on the potential juror of having read, seen or heard the negative pretrial publicity, and, usually includes an admission by the potential juror that the information has had a negative impact on their impression of the accused even before the trial begins.
Any questions posed to the potential jurors are usually vetted by the trial Judge in advance. Counsel for the accused is only permitted to ask the questions as pre-approved by the trial Judge in making the order permitting challenge for cause. The accused’s lawyer is usually only permitted to ask each potential juror the questions that the court ordered as appropriate to determine potential bias.
Thus, once the trial Judge has approved the appropriate question or questions to be asked of each potential juror counsel is permitted to ask each potential juror the approved questions. In each potential disqualification, the issue of partiality or lack of bias is not decided by the trial Judge but by two members of the jury panel who must be unanimous in the decision as to whether or not the potential juror is biased or not.
This mini ‘trial within a trial’ aims to determine whether a potential juror would likely be inappropriate as a juror to try the case based upon a perceived inability to be impartial in the decision-making process.
The 2019 amendments, while maintaining the possibility of this process, removed this process in its entirety and also placed challenges for cause squarely in the hands of the trial Judge. After the amendments, any questions the court determines as appropriate based upon possible partiality are now questions that will be posed, not by counsel for the accused who brought the application before the court, but instead will be asked of each potential juror by the trial Judge.
The methodology remains the same even after the amendments. The significant difference is that the questions ordered by the trial Judge will be asked by the trial Judge. The presiding Judge is therefore free to ask whatever questions the presiding Judge considers to be appropriate. The court is entirely in charge of these proceedings.
Trial counsel watches the proceedings without any possibility of input as to the appropriateness or inadequacy of the Judge’s questions, and, without any further argument by counsel.
Procedurally this mini ‘trial within a trial’ remains the same. From the jury panel, two potential jurors are selected to render a verdict as to whether a potential juror challenged is biased or not biased. The first two jurors are selected randomly to determine the issue of possible partiality.
Now, the questions posed to potential jurors are posed by the trial Judge.
After the 2019 amendments were enacted counsel was still required to apply to the court for a challenge for cause. Counsel is required to successfully argue that there should be a challenge for cause despite a presumption that every potential juror is a person presumed to be able to perform the duties of a juror impartially. The onus is therefore on the applicant to demonstrate that each potential juror should be challenged for cause based on a realistic potential for partiality.
If the trial Judge orders that challenges for cause will be permitted and approves certain “appropriate” questions that should be asked of each potential juror to ensure impartiality, then, it is now the trial Judge who asks the pre-approved questions of each potential juror. Counsel’s role in asking the questions has been eliminated.
The above is the an excerpt of Patrick J Ducharme’s book, Criminal Trial Strategies, available at Amazon or in bulk through MedicaLegal Publishing.
Read or listen to the Preface and Introduction and subscribe to Patrick Ducharme’s Youtube Channel.