DOJ-OGR-00010325.jpg

Case 1:20-cr-00330-PAE Document653 Filed 04/01/22 Page 2 of 40 questioned the juror under oath and under the penalty of perjury. The Court inquired about whether his answers were false, his explanation for giving those answers, and how he would have responded to follow-up questions if accurate answers had been provided at the time of jury selection. This inquiry was limited by Federal Rule of Evidence 606, which prohibits a juror from testifying about the content of deliberations or his mental processes in evaluating the evidence at trial. The rule embodies long-accepted federal law and is an important safeguard of the integrity of the jury trial system. The hearing was further limited by Supreme Court and Second Circuit law that permits inquiry only if there is clear and incontrovertible evidence of potential misconduct by the juror. Based on the hearing record, the questions before the Court are whether Juror 50 failed to answer honestly a material question during jury selection, and whether, if he had provided a correct response, the Court would have struck him “for cause” because he was biased. Controlling law is clear that the question is not whether the Defendant would have chosen to exercise one of her discretionary peremptory strikes against this juror had he accurately disclosed his prior sexual abuse. It is only whether the Court would have struck him for cause due to actual, implied, or inferred bias. See McDonough Power Equip., Inc., 464 U.S. at 555-56. The limits on the nature of the post-trial inquiry serve the important interest in the finality of judgments. The Court concludes that the Defendant has failed to satisfy the demanding requirements of the controlling Supreme Court decision, McDonough v. Greenwood. The Court finds Juror 50 testified credibly at the hearing. There are many reasons for that finding. He appeared to testify frankly and honestly, even when the answers he gave were the cause of personal embarrassment and regret. His incentive at the hearing was to testify truthfully or face criminal perjury charges. DOJ-OGR-00010325