Yesterday, the Second Circuit rejected U.S. District Judge Jed
S. Rakoff's typical voir dire process and vacated a
defendant's criminal conviction, remanding the case for a new
trial (United States v. Nieves, 2d Cir. Jan. 26,
2023). The Circuit found that Judge Rakoff's self-described
"long standing practice" of an extremely abbreviated
voir dire process failed to protect against a significant
"risk of juror prejudice arising from bias." Given the
risk of juror bias based on defendant Nieves' alleged gang
association, "it was outside of the [district] court's
discretion to altogether decline to protect against that
risk."
Judge Rakoff has long engaged in a uniquely brief voir
dire – a practice that some other judges in the district
have emulated to some extent. The Second Circuit made its
disapproval of this practice clear, remarking, "[I]t is
difficult for us, sitting in review, to imagine what less [the
district court] could have done to guard against potential
bias." Indeed, the Second Circuit reaffirmed that a
"district court must 'permit at least some
questioning.'" Noting that there is a range of options for
engaging in voir dire, the Second Circuit found that Judge
Rakoff's "failure on voir dire to explore, or to
take other steps to specifically counter" potential prejudice
constituted an abuse of discretion. This rejection of Judge
Rakoff's voir dire practice will change attorneys'
approach to the process at trial, giving them more opportunity to
vet jurors.
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