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Top court sets new standards for questioning prospective jurors

Maryland’s highest court reversed a drug conviction Friday and in the process set new standards for questions that must be asked of prospective jurors if requested by defense counsel in a criminal case.

If the prosecution’s case relies heavily on police testimony, the would-be jurors must be asked upon request if they have “ever been a member of a law enforcement agency,” the Court of Appeals held in overturning Cervante Pearson’s fall 2010 conviction and 15-year prison sentence for possession with intent to distribute cocaine.

The prospective Baltimore City Circuit Court jurors — 12 of whom ultimately voted for Pearson’s conviction — were never asked about their law-enforcement affiliation, even though every prosecution witness was a Baltimore police officer, the high court said in sending the case back for a new trial.

“[W]here the basis for a conviction is reasonably likely to be the testimony of members of law-enforcement agencies, a prospective juror’s experience as a member of a law-enforcement agency has a demonstrably strong correlation with a mental state that could give rise to specific cause for disqualification,” Judge Shirley M. Watts wrote for the Court of Appeals majority. “Thus, a defendant is entitled to know whether a prospective juror has worked in the law-enforcement field if all of the state’s witnesses and/or the witnesses whose testimony is reasonably likely to be the basis for a conviction are members of the law-enforcement community.”

In its decision, the high court also overturned its 2011 holding that, upon request of the defense, the judge had to ask if jurors have such “strong feelings” about the crime charged “that it would be difficult for [them] to fairly and impartially weigh the facts of this trial.”

From now on, the question will be limited to whether the prospective juror has “strong feelings” about the crime charged; it is for the litigants — not the prospective juror — to judge the person’s ability to be fair and impartial, the high court said in abandoning its 2011 decision in State v. Shim.

In addition, the court said prospective jurors need not be asked if they have ever been the victim of a crime, as the question reveals nothing about the person’s ability to be fair and impartial and delays the jury-selection process because it prompts counsel to ask what the crime was and whether the person can remain unbiased.

“Many (if not most) prospective jurors have been the victims of some kind of crime,” Watts wrote.

The court said the standards would apply to Pearson’s case and “prospectively” from when the decision was filed Friday. Thus, convicts cannot rely on the court’s new rules to get their convictions overturned.

Judge Robert N. McDonald, in dissent, said Pearson’s conviction should have been upheld, as the trial judge stayed true to the high court’s existing rules in questioning prospective jurors. Judge Sally D. Adkins joined the dissent.

‘Intelligent use’ ahead?

Maryland and California are the only states in which voir dire, the questioning of prospective jurors, is still focused on identifying a specific cause for disqualifying a prospective juror, such as a clear statement that he or she cannot be fair and impartial, Watts wrote. In all other jurisdictions, voir dire is designed to elicit answers to assist prosecutors and defense counsel in exercising their ability to strike candidates without explanation, or peremptorily

She added that the Maryland Judiciary’s Standing Committee on Rules of Practice and Procedure should examine the question of whether the state should part with California and adopt the more widespread practice, known as “intelligent use.”

That approach drew support from McDonald and Adkins, who said Maryland “should join the vast majority of other states and provide for the pre-trial examination of prospective jurors to include questions, within the discretion of the trial court, that might be more relevant to the exercise of peremptory strikes than challenges for cause.”

But Judge Glenn T. Harrell Jr., who joined only the majority’s judgment for Pearson, said the high court should have adopted the majority practice in Pearson’s opinion, rather than await the protracted rulemaking process.

“I am more sanguine and energetic in my belief that the court, without delay, should draw upon the experience of the 48 states and the federal circuits that have gone before us to adopt a suitable format of the ‘intelligent use’ approach in Pearson’s case,” Harrell wrote in a concurring opinion. “Although the rules committee is one way to address the issue, I, for one, am ready to ‘do it now’ (borrowing former Gov. [William Donald] Schaefer’s pet phrase).”



Cervante Pearson v. State, CA No. 49, Sept. Term 2013. Reported. Opinion by Watts, J. Concurrence by Harrell, J. Dissent by McDonald, J. Argued Jan. 13, 2014. Filed Feb. 21, 2014.


Did the trial judge err in not asking the prospective jurors if they had worked in law enforcement?


Yes; the judge was obliged to ask the question, upon the defense counsel’s request, because the prosecution’s case relied on the testimony of law-enforcement personnel.


Deborah S. Richardson for petitioner; Carrie J. Williams for respondent.

RecordFax # 14-0221-21 (26 pages).