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Case 1:20-cr-00330-PAE Document 614 Filed 02/24/22 Page 3 of 12

views, it is clear he was biased and unfit to serve. If he made his false statements intentionally to get on the jury, that would mean he had a personal agenda and his bias was even more apparent, but even false statements in the absence of lying would justify striking him for cause. Juror 50’s false answers undermined the voir dire process this and other courts follow, including reliance on written questionnaires, to screen for jurors who, due to their prior experiences, cannot be trusted to be fair in the individual case. What happened here is a structural error: “a defendant is ‘entitled to be tried by 12, not 9 or even 10, impartial and unprejudiced jurors.’” United States v. Martinez-Salazar, 528 U.S. 304, 316–17 (2000) (quoting Parker v. Gladden, 385 U.S. 363, 366 (1966)).

I. THIS COURT SHOULD VIGOROUSLY PROTECT DEFENDANTS’ RIGHT TO AN IMPARTIAL JURY, PARTICULARLY IN HIGH-PROFILE AND SENSATIONAL TRIALS

The issue arising in this case reflects a broader problem. The Sixth Amendment explicitly secures criminal defendants the right to trial “by an impartial jury,” but delivering upon that promise has grown increasingly difficult in high-profile and sensational trials. “The prime safeguard is voir dire,” Fields v. Brown, 503 F.3d 755, 772 (9th Cir. 2007), in which “[t]he necessity of truthful answers by prospective jurors if this process is to serve its purpose is obvious,” McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984) (plurality).

Honesty is the heart of the jury-selection process in an adversarial system; indeed, “voir dire” means “to speak the truth.” The whole point of the voir dire process is to elicit information from the venire that may shed light on bias, prejudice, interest in the outcome, competence, and the like so that counsel and the parties may exercise their judgment about whom to seat and whom to challenge.

Fields, 503 F.3d at 772. Just as judges must recuse themselves to protect the appearance of impartiality, see Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 886 (2009), judges must ensure that jurors, as judges of the facts, are also impartial in appearance as well as in reality.

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