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Case 1:20-cr-00330-PAE Document 614 Filed 02/24/22 Page 7 of 12

protections of the voir dire process. See Porter v. Zook, 898 F.3d 408, 431 (4th Cir. 2018) (It is clearly established law that “the ‘honesty’ aspect of the first McDonough prong as encompassing not just straight lies, but also failures to disclose.”).

Once an untrue answer is discovered, under the second prong of the McDonough test, “the district court must ‘determine if it would have granted the hypothetical challenge.’” Stewart, 433 F.3d at 304 (quoting United States v. Greer, 285 F.3d 158, 171 (2d Cir. 2002). That requires an inquiry into whether accurate and complete answers, together with the answers to the “follow-up questions (and answers),” would have provided “a valid basis to challenge for cause.” Porter, 898 F.3d at 432; see also United States v. Colombo, 869 F.2d 149, 151 (2d Cir. 1989) (noting false answers prevent “follow-up questions” that may expose bias).

In this case, the first prong under McDonough is satisfied by Juror 50’s press statements showing that his purported voir dire answers – that he was not sexually abused as a child and that he would view abuse victim witnesses like any other witness – were untrue. Juror 50 apparently told the Court in his Questionnaire that he would assess the credibility of alleged sex crime victims “just the way [he] would any other witness” (Question 47), and he denied that he had been the victim of sexual abuse (Question 48). Further, he was asked if he or anyone close to him had any experience that would affect his ability to be fair and impartial, and he apparently said no. (Question 50). Question 51 even gave Juror 50 the opportunity to answer these questions confidentially to avoid embarrassment or protect his privacy, but he reportedly declined. During live questioning, Juror 50 purportedly assured the Court that he could be fair and impartial.

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