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Young v. Johnson9/20/2001
situations presented in Perkins and the cases subsequently decided by the supreme court, it is virtually impossible to determine the extent to which Johnson was actually prejudiced by the excusal of Juror #8. Juror #8 was permitted to discuss the evidence during recesses in the trial when all of the jurors were present, Ariz. R. Civ. P. 39(f), and may have changed the views of other jurors had she participated in deliberations. Cf. Wasko, 116 Ariz. at 290, 569 P.2d at 232 (quotation omitted) ("The juror remained because the plaintiffs [erroneously] had no challenge to remove him may have been a hawk amid seven doves and imposed his will upon them."). On the other hand, the result may have been the same had Juror #8 remained on the jury. Absent gross speculation, it is simply impossible to assess the impact of Juror #8's removal from the mix of jurors. Without doubt, however, the judge impermissibly altered the dynamic of the jury by erroneously excusing Juror #8. Because we cannot ascertain the extent to which this adjustment prejudiced Johnson, we must presume prejudice.
Finally, in light of the obvious difficulties in showing actual prejudice when a juror is wrongfully excused from a jury, adoption of Young's argument would mean that a judge could impermissibly excuse a sitting juror with impunity as long as a full complement of jurors eventually deliberates the case. Such a result would contradict the notion that litigants are entitled to have all empaneled jurors decide a case, absent a legally sufficient ground for excusal or disqualification.
Juror #8 was indisputably part of the lawfully empaneled jury, and Johnson was therefore deprived of his essential right to a fair jury trial when the judge excused her from the jury without a sound basis for doing so. Because it is impossible to ascertain the extent of any prejudice suffered by Johnson as a result of the error, we must presume such prejudice, reverse the judgment, and remand the case for a new trial.
CONCLUSION
We hold that the trial court erred by excusing Juror #8 without a sound basis for doing so. Because the court deprived Johnson of an essential right, and it is impossible to determine the extent of any prejudice to him, we must presume prejudice. Consequently, we reverse the judgment and remand the case for a new trial.
Ann A. Scott Timmer, Presiding Judge
CONCURRING:
Jon W. Thompson, Judge
Edward C. Voss, Judge
Page 1 2 3 4 5 6 7 8 9 Arizona Personal Injury Attorneys
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