The Court of Appeals in Poth v. United States decided on December 29, 2016, remanded the case for further proceeding to the trial court due to jury misconduct.

Factually, after trial and conviction, the defendant’s counsel learned that two of the jurors had made material omissions in their juror questioner in that one had not disclosed prior felony conviction, a sex offender — and the other juror had omitted that she was a complaining witness in two separate criminal cases.

The defense counsel subsequently filed a motion for a new trial and to set aside the conviction pursuant to Super. Ct. Crim. R. 33, which provides for a new trial in “the interests of justice” and if “exceptional circumstances” had prevented the defendant from receiving a fair trial.

The trial court declined to hold an evidentiary hearing on the motion opining that Mr. Poth’s claim was barred due to his counsel’s failure to exercise due diligence.

The trial court in ruling almost imposed a “due diligence” standard upon the defense counsel reasoning that defense attorneys are not required to conduct pre-verdict juror investigations but if they do such, it must be done in a form and in a time frame that will allow the court to take the appropriate action during the trial and not post trial.

The Court of Appeals disagreed with this “due diligence” standard imposed by the trial court.

The Court expounded that unquestionably a defendant who has been deprived of his or her Sixth Amendment right to trial by a fair and impartial jury is entitled to new trial.

This type of structural violation affects the very framework within which the trial proceeds and functions. Without an impartial jury — a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence.

Moreover, when a defendant shows that a juror responded falsely or omitted material information in his or her voir dire responses, the defendant is entitled by right to a hearing to prove and show actual bias.

Thus the defendant must be granted a new trial if at the evidentiary hearing it is demonstrated that the offending juror had failed to answer honestly a material question and that further a correct and truthful response would have stricken the juror for cause.

Here the jurors’ omissions were material and the defendant was entitled to hearing to establish bias or prejudice due to the omissions. The denial of the evidentiary hearing was an error in law and thus remand is necessary.

The Court distinguished circumstances in which defense counsel learns of misconduct or a material jury omission and fails to raise it during the trial. Because here the defense counsel only learned of these omissions after the trial and only during a post trial extrinsic investigation of his own – the defense was entitled to a hearing to establish material bias or prejudice affecting a fair and just outcome of the trial.

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