Jury panel member equivocation during voir dire- Fairfax criminal lawyer addresses motions to strike them

Jury panel member equivocation can be common during the voir dire process of selecting and deselecting potential jurors / venire panel members. As a Fairfax criminal lawyer, I know that the voir dire process is so critical that some litigants spend hefty sums to hire consultants for the voir dire stage, including investigating the backgrounds of potential jurors, creating proposed questionnaires for the court to send them before the voir dire / trial date, advising questions and follow up questions to ask during voir dire, and recommending which venire members to move to strike for cause and with whom to use peremptory strikes. A recent guest on my Beat the Prosection podcast who is one of the nation’s great criminal defense lawyers, in an interview with another lawyer said she is so successful with the voir dire stage that she does not need juror selection consultants. Whether or not a criminal defense lawyer uses consultants for the voir dire stage, the attorney must know that the lawyer must still engage with and persuade the jurors and listen to the lawyer’s own intuition, together with listening to their client, and not abdicate the entire juror selection role to any consultant.

The criminal defense lawyer and Virginia assistant commonwealth’s attorney both want the most favorable jury panel for them

The Virginia criminal defense lawyer and prosecutor each want the most favorable jury panel for them. Through the peremptory strike stage, each side is going to remove venire members who appears most favorable to the opposite side. Each side has a finite number of peremptory strikes that they may exercise. Virginia Code § 19.2-262. Unlimited are the number of strikes for cause that a lawyer may seek, which are only effectuated if granted by the court. “’It is a trial court’s responsibility to ensure that jurors are free from bias.’… To test impartiality, the trial court must determine ‘whether the venireperson can lay aside the preconceived views and render a verdict based solely on the law and evidence presented at trial.’… ‘In conducting our review, we consider the juror’s entire voir dire, not merely isolated statements.'” Grimaldo v. Commonwealth of Virginia, ___ Va. App. ___ (Oct. 8, 2024). 

Virginia criminal lawyers must have the record reflect venire member equivocation that will not otherwise appear in the transcript

As a Fairfax criminal lawyer, I thank the lawyer of Jose Saul Grimaldo for setting up the appellate record sufficiently to obtain a reversal of Grimaldo’s rape conviction by making sure not only that the record showed the substantial equivocation of jury panel member 14 about her ability to be impartial or not, but also assuring the record showed that she was crying while being examined: “Juror 14 stated that she had been a victim of sexual assault. The following exchange ensued between Grimaldo’s attorney and Juror 14: [Counsel]: I mean, I knew this was a hard question to ask, but we really can’t thank all of you enough for being honest. Do you feel like that experience will influence your decision-making today? [Juror 14]: (Nodded her head up and down). [Counsel]: You do? [Juror 14]: I mean, I would hope not, but, I don’t know. It’s hard.” Grimaldo. “As Grimaldo’s attorney moved to strike Juror 14 for cause, she noted that the potential juror was crying. Although the trial court acknowledged that Juror 14 was u’pset, ‘it determined that ‘given her situation, she did very well with the level of commitment to try to do the right thing.'” Grimaldo. In reversing Grimaldo’s conviction for the trial judge’s refusal to remove Juror 14 from the trial, the Virginia Court of Appeals stated: “Then she was noted to be crying and ‘upset’ and was never rehabilitated so as to respond unequivocally that she could—or could try to—evaluate the case impartially.” Grimaldo.

Grimaldo’s conviction reversal is not a windfall. His Virginia prosecutor can choose to re-prosecute him

Grimaldo’s conviction reversal based on the jury panel issue, only goes so far in helping him. As a Fairfax criminal lawyer, I know that his prosecutor can still decide to reprosecuted him. Grimaldo likely remained incarcerated pending the many months for his appeal to be pursued and decided, and may be  incarcerated / denied bail / bond / pretrial release pending any retrial. The ideal place for a Virginia criminal defendant to win is at the trial state.

Fairfax criminal lawyer Jonathan Katz relentlessly fights for your best possible defense against Virginia DUI, felony and misdemeanor prosecutions. Schedule your free in-person, initial confidential consultation with Jon Katz about your court-pending prosecution at 703-383-1100, info@BeatTheProsecution.com, and (text) 571-406-7268. Jon can usually meet with you within one business day of your contacting us.