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Young v. Johnson9/20/2001
an "essential right," and defendants were therefore not required to show actual prejudice in order to secure a new trial. Perkins, 172 Ariz. at 119, 834 P.2d at 1264.
Johnson argues that we should apply the Perkins holding to this case and decide that he was presumptively prejudiced by the erroneous excusal of Juror #8. Young counters that Perkins is distinguishable because the jurors in that case had commenced deliberations at the time the judge imparted the wrong instruction to them. Because the error here occurred before deliberations, and a fair and impartial jury fully deliberated and returned a verdict, Young contends, Johnson must prove actual prejudice in order to receive a new trial.
For several reasons, we disagree with Young that Perkins is inapplicable simply because the error occurred before the start of deliberations. First, the Perkins court defined the "essential right" of trial by jury as including "the right to have every issue tried by the jury that has been empaneled, not by two-thirds of that jury, or three-fourths, or any other fraction." Id. at 118, 834 P.2d at 1263 (emphasis added). Thus, contrary to Young's contention, we read the court's holding to mean that if a party is wrongfully deprived of its right to have all empaneled jurors decide the case, it loses its essential right to a fair jury trial.
Second, the supreme court has recognized that a judge deprives a litigant of a fair jury by unequally allocating peremptory challenges among the parties or forcing a party to use a peremptory challenge to strike a juror who should have been stricken for cause. See Wasko v. Frankel, 116 Ariz. 288, 290, 569 P.2d 230, 232 (1977) ("Peremptory challenges form an effective method of assuring the fairness of a jury trial."); Moran v. Jones, 75 Ariz. 175, 181, 253 P.2d 891, 895 (1953) (unlawfully constituted jury deprives parties of right to "fair and impartial jury").
In those cases, the courts presumed prejudice, even though a full complement of seemingly unbiased jurors eventually deliberated and decided the cases. Id.; Penaskovic v. F.W. Woolworth Co., 20 Ariz. App. 403, 405, 513 P.2d 692, 694 (1973) (although no right to a particular juror if jury is fair and impartial, actual prejudice need not be shown when peremptory challenge taken from party). We cannot discern any reason to conclude that prejudice should be presumed if a judge impermissibly interferes with a litigant's selection of jurors, but not if the judge later erroneously excuses a juror from the lawfully empaneled jury. The compelling, common factor in each of these scenarios is that the judge wrongfully interferes with the jury dynamic, and the prejudicial effect of such interference is incapable of assessment.
Third, the Perkins court also reasoned that it could not "require a litigant to show the extent of prejudice resulting from an error when, as a practical matter, the nature of the error renders it impossible to prove the extent of any prejudice." Id. at 119, 834 P.2d at 1264. Subsequent to Perkins, the supreme court has applied this principle in situations that did not involve the removal of a juror from the deliberative process. See Leavy, 188 Ariz. at 73, 932 P.2d at 1344 (prejudice presumed when lawyer deliberately raised "seatbelt defense" and improperly commented on credibility of witness in violation of court order); Perez v. Cmty. Hosp. of Chandler, 187 Ariz. 355, 361, 929 P.2d 1303, 1309 (1997) (bailiff gave incorrect answers to jurors' questions without relaying them to judge); Rich, 184 Ariz. at 181, 907 P.2d at 1384 (judge failed to notify counsel that jury returned inconsistent guilty verdict on lesser-included offense).
As in the
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