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Case 1:20-cr-00330-PAE Document 342 Filed 10/13/21 Page4of17 ARGUMENT I. THE APPLICABLE LAW A prospective juror may be excused for cause based on many forms of bias or partiality. As the Second Circuit has explained, juror partiality can be actual, implied, or inferred: Actual bias is “bias in fact,” generally evidenced by “express proof,” such as a juror’s admission to “a state of mind prejudicial to a party’s interest.” Implied bias is “bias conclusively presumed as a matter of law” from circumstances in which an average person in the position of the prospective juror would be prejudiced. Inferred bias exists “when a juror discloses a fact that bespeaks a risk of partiality sufficiently significant to warrant granting the trial judge discretion to excuse the juror for cause, but not so great as to make mandatory a presumption of bias.” United States v. Quinones, 511 F.3d 289, 301 (2d Cir. 2007) (quoting United States v. Haynes, 398 F.2d 980, 984 (2d Cir. 1968) and United States v. Torres, 128 F.3d 38, 45 (2d Cir. 1997)). All types of bias can properly form the basis to excuse a juror for cause. See id. Thus, the jury selection process should screen for each type. See id. Voir dire plays an important role in ensuring that juries are fair and impartial by allowing the Court and parties to uncover unfair actual, implied, or inferred bias. It serves to protect the Constitutional right of a fair trial “by exposing possible biases, both known and unknown, on the part of potential jurors.” United States v. Stewart, 433 F.3d 273, 303 (2d Cir. 2006). For these reasons, district courts routinely use their broad discretion to issue written jury questionnaires in conducting voir dire, particularly in cases involving extensive pretrial publicity or hot-button issues. See, e.g., Skilling v. United States, 130 S. Ct. 2896, 2919 (2010) (approving district court’s use of questionnaire in trial of former Enron executive, Jeffrey Skilling); United States v. Robert Sylvester Kelly, 19 Cr. 286 (AMD) (EDNY) (“R. Kelly case”); United States v. Elizabeth Holmes, 18 Cr. 258 (EJD) (NDCA) (“Theranos case”); United States v. Keith Rainier, 18 Cr. 204 (NGG) (EDNY) (“Nexium case”). DOJ-OGR-00005209