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After Sentencing, Defense Counsel Learns a Juror Failed to Disclose Material Information During Pretrial Voir Dire. Now what?

In many jurisdictions, jurors receive pretrial questionnaires that let parties and attorneys get to know them.  But what happens when a juror forgets or lies in response to some of the questions and the inaccurate responses are discovered after trial?  That was the question for the First Circuit in United States v. French.

Malcolm French owned approximately 80,000 acres of land in Washington County, Maine.  Rodney Russell was an office manager of sorts.  It turns out people were using pieces of Mr. French’s land to grow considerable amounts of marijuana.  Mr. French and Mr. Russell both claimed they didn’t know about the farming operation and were thus innocent.  A jury disagreed and found them both guilty.

Shortly after sentencing, defense counsel reported that they had just learned that a prisoner housed in the Somerset County Jail with another co-defendant told the co-defendant that Juror 86, who sat on the jury before which the case was tried, was the mother of a small-time marijuana trafficker.


The problem was that prior to trial, Juror 86, along with the other prospective jurors, filled out a questionnaire, which included the following prompt:

  1. a.) Please describe briefly any court
    matter in which you or a close family member
    were involved as a plaintiff, defendant,
    witness, complaining witness or a victim.
    [Prospective jurors were given space to write]

b.) Was the outcome satisfactory to you?
[Prospective jurors were given “yes” and “no”
check boxes here]

  1. c) If no, please explain. [Prospective jurors
    were given space to write]

Juror 86 wrote “n/a” after part (a), and left parts (b) and (c) blank. She also did not complete the second page of the questionnaire, which contained six additional prompts and a space to sign and declare under penalty of perjury that the prospective juror had answered all the questions truthfully and completely. And when jury selection began, the magistrate judge asked the prospective jurors a series of other questions Juror 86 should have answered, but Juror 86 remained silent.

In a motion for a new trial filed a week after sentencing, defendants argued that Juror 86’s answers to the questionnaire and her lack of a response to oral voir dire questions amounted to dishonest answers to material questions, and that had the answers been honest, there would have been a valid basis for a challenge for cause. They also asked for an evidentiary hearing to question Juror 86 about her answers. The district court denied the motion in all respects.  Mr. French and Mr. Russell appealed to the First Circuit.

The First Circuit reversed, explaining that the defendants came forward with factual information fairly establishing that Juror 86 likely gave an inaccurate answer to question 3 on the written questionnaire.  Further, the First Circuit held that the uncontested facts submitted by defendants also made it “quite likely — although not certain — that the juror’s inaccuracy was knowing.”  Defendants also showed that the correct answer to question 3 may well have been quite relevant to assessing the juror’s ability to fairly sit in judgment in this case. To wit, the mother of a drug user arrested for dealing to support his drug habit might have some strong thoughts about those who produce the drugs.

According to the First Circuit, the “defendants’ initial burden is only to establish that their claim of juror misconduct is ‘colorable or plausible.'”  Defendants “need not show at the outset that their claim is so strong as to render contrary conclusions implausible. Nor need the defendants support their claim initially with testimony from the juror.”  In the First Circuit, “counsel cannot even question the juror until the court gives permission.” See United States v. Kepreos, 759 F.2d 961, 967 (1st Cir. 1985). As a result, a court-supervised investigation aimed at confirming and then exploring further Juror 86’s apparent dishonesty was required.  The First Circuit vacated the denial of defendants’ motion for new trial and remanded for further proceedings on the motion for new trial.  Presumably, that would be an evidentiary hearing.  Mr. French and Mr. Russell are by no means off the hook, but for now, they have hope for a new trial.


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