Sunday, September 21, 2014

Case o' The Week: Reyes of Hope (then Harmless Error) - Voir Dire, Rule 43, and the Defendant's Presence

Hon. Judge Jay Bybee

  Not structural error to exclude a defendant from voir dire of a juror. 2014 WL 4358454, *11 & n.4.
  Start with that footnote spoiler, and the rest of the decision is a tad anticlimactic. United States v. Reyes, 2014 WL 4358454 (9th Cir. Sept. 4, 2014), decision available here.

Players: Decision by Judge Bybee, joined by Judges Bea and Christen. Hard-fought appeal by CD Cal AFPD Matthew Larsen.

Facts: Reyes was tried for bank robbery. Id. at *1. During voir dire, the court conferred with counsel at side bar and asked for strikes for cause. Defense counsel asked that Reyes himself be permitted to participate in these side bar discussions: that request was denied. Id. There were eighteen side bar meetings; over defense objection, defendant Reyes was not permitted to participate in any. Id. Defense counsel did consult with Reyes four times – but had to go to the defendant at counsel table (Reyes was not permitted to come to the bench). Id. At all but one of these sidebar sessions, substantive conversations about the jurors took place. Id. In one of these sidebar sessions, “Juror H” was questioned about her self-reported bias against bank robbers. Id. Reyes did not hear that exchange. Id. That juror served on the jury that ultimately convicted Reyes. Id.

Issue(s): [“Reyes] contends that the district court violated his right to be present at trial by excluding him from certain side bar exchanges during jury selection.” Id. at *1.

Held:We conclude that the district court violated Rule 43 when it questioned Juror H outside of Reyes’s earshot, but the district court did not violate Rule 43 by refusing Reyes’s request to be present during the other seventeen side bar exchanges.” Id. at *4. “We agree with [other courts that have held] that, under Rule 43, the defendant has a right to be personally present during voir dire of prospective juror. The district court erred by questioning Juror H to determine whether she was ‘qualified and suitable to serve on a jury’ when Reyes had a standing objection to his exclusion from the side bar conferences. The court could have complied with Rule 43 either by permitted Reyes to join his attorney at the bench while the court conversed with Juror H or by questioning her in open court.” Id. at *5. (But . . . “[w]e conclude the side bar voir dire of Juror H was harmless because the evidence of Reyes’s guilt was overwhelming.” Id. at *7).

Of Note: The good news is that it is now clear in the Ninth Circuit that a defendant has a statutory right to be present when jurors are questioned. The bad news is that the Court holds, for the first time squarely in the Ninth, that “meetings between counsel and the court at which the participants discuss whether should be excused for cause, exercise preemptory challenges, or decide whether to proceed in the absence of prospective jurors are all examples of a ‘conference or hearing on a question of law’ from which the defendant may be excluded at the district court’s discretion.” Id. at *5.

How to Use: Judge Bybee emphasizes several aspects of this case that salvaged the conviction from a Rule 43 attack. There were no limits placed on Reyes’ ability to let his attorneys know who he thought should excused for cause, or how he wanted to exercise his preemptory challenges. Id. at *6. Reyes’ counsel had a chance to confer with their client before making decisions about the jurors. Id. Finally, the judge identified in open court each juror who had been excused – so Reyes would know if his attorney mistakenly excused the wrong juror. Id. Absent those protections, the exclusion of a defendant from a sidebar on jury selection could rise to a Rule 43 violations – note well those aspects of Reyes.
For Further Reading: “Prisons are for people we are afraid of, but we have been filling them with many folks we are just mad at.” 
  Turns out, you and (Former) Speaker Newt Gingrich think alike on the overuse of incarceration. For a thoughtful op-ed by the former Speaker, see What California Can Learn from Red States on Crime and Punishment, available here.

Image of the Honorable Judge Jay Bybee from

Steven Kalar, Federal Public Defender N.D. Cal Website at

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