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West v. Holley11/19/2004
on in such an evaluation is deferential to the trial court's advantaged position in determining answers to both questions. Reversal of the trial court's decision requires a showing that the trial court abused its discretion in reaching the conclusion not to remove a challenged juror.
Utah law purports to adopt the McDonough test, but fails to make clear how, if at all, our application deviates from the description set out in McDonough. Without discussion, in State v. Thomas, 777 P.2d 445, 451 (Utah 1989) (Thomas I), we remanded to the trial court to "hold a hearing and ... make a factual determination as to whether the two-pronged test of McDonough" had been met and, if so, order a new trial. No other considerations were attached to illuminate the matter. However, when the trial court held a hearing, and reached factual findings on those questions, it concluded the first prong of the McDonough test had not been satisfied, and declined to excuse the juror. Thomas again sought appellate review, and in Thomas II, three members of this court disagreed with the factual determinations of the trial court, holding as a matter of law that the trial court could not have so found on the basis of the transcript. Unfortunately for us, all three members of the majority approached the question differently and the other two members of the court dissented, indicating that they would defer to the facts as found by the trial judge and affirm.
The consequence is that trial judges, litigants, and citizens still do not know what level of trust we will place in the determinations made by the trial court in post-trial juror challenges of this type. My colleagues today remove all doubt by applying a non-deferential standard approaching de novo review of the facts. I would not do so.
Although I agree that wisdom lies in encouraging the removal of questionable jurors prior to trial when the problem may be remedied with little additional time and expense required, I differ on the standard after trial. I believe the standard set forth in McDonough is workable, without modification. I believe litigants, jurors, citizens, and justice are well served, and adequately protected, by a much higher level of deference to the determinations of the trial court under the McDonough test when the challenge arises after trial has concluded.
I would accept the judgment of the trial court that this juror, although not truthful with regard to a part of the voir dire examination prior to trial, was able to evaluate the evidence on its own merit, and decide the case fairly. To hold otherwise is to invite unnecessary removal of jurors, and costly retrials, in situations where it is unwise. Surely the trial court is also aware of the necessity of fairness and justice, and occupies a much-advantaged position for resolution of the concern on a case-by-case basis.
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