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Improper questions asked during jury selection phase by DA

New York, NY |

the DA during jury selection asks for any members of the jury whom they believed you must have physical evidence to find a person guilty of a crime to raise their hands- afterwords those members that raised their hands were all excluded from the jury pool, is this common practice and does this practice prevent a defendant from receiving a fair trial from an impartial jury. and violates the defendants rights.

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Attorney answers 7


There is nothing improper about the question. I assume the case lacked physical evidence. The DA need only prove the case beyond a reasonable doubt and eyewitness testimony can be enough. The DA was just looking to exclude jurors who might hold him/her to more than the law requires.

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Keep in mind that I am not familiar with the practice or custom in New York and am just thinking generally about the issues underlying your question:

The DA's question does not strike me as improper. If the DA excluded these jurors on the State's peremptory challenges I do not think there is much that you can do about it. If, on the other hand, the judge excluded these jurors for cause on the State's motion then you might have an argument on appeal that cause was not adequately established and that the jurors were improperly excluded. In most states it is necessary to make a timely objection to a ruling in order to raise an allegation of error on appeal. If that was not done, you may have lost your chance. That, however, is a matter of New York state law about which, as I said, I know nothing. Finally, if you do raise this claim on appeal you might find, and again this would be a matter of state law, that the trial judge's rulings on cause challenges to jurors are reviewed on appeal under a highly deferential standard such as abuse of discretion, and are not easily reversed. So I cannot tell what the answer is to your question. All I can do is point to some of the considerations that might apply.


It's common and it's proper.

Joseph A. Lo Piccolo, Esq.
Past President, Criminal Courts Bar Association
Hession Bekoff & Lo Piccolo
1103 Stewart Ave, Suite 200
Garden City, NY 11530
516-408-3666 (o) / 516-408-3833 (f)

I am a criminal defense attorney practicing in Nassau, Suffolk and New York City. The above information is not a substitution for a meeting whereas all potential legal issues can be discussed.


Some of those jurors could have been rehabilitated by followup questions by your attorney most likely. Sometimes, a judge does not help matters.

If you found this "helpful" or "best answer," please click it with my appreciation. My response is for educational purposes and does not constitute legal advice nor creates an attorney client relationship which requires all the details and a personal conference.


That question may or may not be allowed. I would have objected to it and at least got a ruling and so preserved it for appeal. Your lawyer may have followed up with questions but hte judge allowed the DA to shop for jurors who did not need 'physical evidence.'


The question is proper. If a juror will not accept the evidence of guilt unless there is physical evidence, that juror would be violating the Court's instructions. Usually, defense counsel gets a chance to straighten things out before the juror is struck for cause.


Such a question is not unusual at all. Whether it is improper is another question. In my view, when a prosecutor does that, they know they have little or no physical evidence to bring before the jury, so they're previewing the weakness in their case in advance with the jury to see who they want to get rid of as jurors.

There is no prohibition to such actions, since either litigant can eliminate anyone from a jury (other than based upon race, creed or color).

It does indicate that they have a weak case and know it.

Good luck.

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