Silent Approval

State supreme court decision upholds validity of juror rehabilitation by silence

An opinion delivered by the Colorado Supreme Court on Sept. 11 in People v. Clemens affirmed the concept that a prospective juror’s silence during voir dire can support a trial court’s conclusion of rehabilitation, if the context of the silence indicates that the juror will heed his or her responsibility under the law to deliver an impartial verdict based on the evidence submitted to the jury at the trial. The decision reversed the lower appeals court’s ruling in favor of the defendant in the underlying case. An attorney who authored an amicus brief spoke about the implications he believes the court’s decision may have for defendants’ rights to an unbiased jury trial.

In the underlying case, Bradley Clemens was convicted in a jury trial of assault charges. When prospective jurors were instructed by the defense attorney and trial judge during voir dire that they could not use a defendant’s choice not to testify against him or her, several repeatedly expressed sentiments of wanting to hear both sides of the story and hesitancy to acquit a defendant who does not testify. After further instruction, questioning and requests of dismissal for cause regarding these biases, Jurors 7, 9, 10 and 12 remained silent when asked a final time about their prejudices against a defendant who does not testify. Though Juror 9 was dismissed during peremptory challenges, the trial judge denied the defense attorney’s request to dismiss Jurors 7, 10 and 12 for cause, determining their silence was sufficient indication of rehabilitation.

Clemens appealed his convictions, arguing the trial court made a mistake in denying the dismissal of the jurors because they had not been rehabilitated. The appeals court agreed with Clemens, reversing his convictions and remanding the case for a new trial.

But in its review, the Colorado Supreme Court reversed the appeals court’s decision. “We conclude that the trial court did not abuse its discretion in denying Clemens’s challenges for cause because, in light of the totality of the circumstances evinced in the voir dire record, Jurors 7, 10, and 12’s silence constituted sufficient evidence supporting the trial court’s conclusion that they had been rehabilitated.”

To read this story and other complete articles featured in the September 18, 2017 print edition of Law Week Colorado, copies are available for purchase online.