After being convicted of murder at a jury trial in a New York
court, respondent moved to vacate his conviction on the ground that
a juror in his case submitted during the trial an application for
employment as an investigator in the District Attorney's Office,
and that the prosecuting attorneys, upon being informed of the
juror's application, withheld the information from the trial court
and respondent's defense counsel until after the trial. At a
hearing on the motion before the same judge who had presided at the
trial, the motion was denied, the judge finding "beyond a
reasonable doubt" that the events giving rise to the motion did not
influence the verdict. The Appellate Division of the New York
Supreme Court affirmed the conviction, and the New York Court of
Appeals denied leave to appeal. Subsequently, respondent sought
habeas corpus relief in Federal District Court, alleging that he
had been denied due process of law under the Fourteenth Amendment
by the conduct of the juror in question. While finding insufficient
evidence to demonstrate that the juror was actually biased, the
District Court nevertheless imputed bias to him and, accordingly,
ordered respondent released unless the State granted him a new
trial. The United States Court of Appeals, without considering
whether the juror was actually or impliedly biased, affirmed on the
ground that the prosecutors' failure to disclose their knowledge
about the juror denied respondent due process.
Respondent was not denied due process of law
either by the juror's conduct or by the prosecutors' failure to
disclose the juror's job application. Pp. 455 U. S.
(a) Due process does not require a new trial every time a juror
has been placed in a potentially compromising situation. Due
process means a jury capable and willing to decide the case solely
on the evidence before it, and a trial judge ever watchful to
prevent prejudicial occurrences and to determine the effect of such
occurrences when they happen. Such determinations may properly be
made at a hearing like that held in this case. Remmer v. United
States, 347 U. S. 227
Moreover, this being a federal habeas action, the state trial
judge's findings are presumptively correct under 28 U.S.C. §
2254(d). Federal courts in such proceedings must not disturb the
state courts' findings unless the federal habeas
Page 455 U. S. 210
court articulates some basis for disarming such findings of the
statutory presumption that they are correct and may be overcome
only by Convincing evidence. Here, neither the District Court nor
the Court of Appeals took issue with the state trial judge's
findings. Pp. 455 U. S.
(b) The touchstone of due process analysis in cases of alleged
prosecutorial misconduct is the fairness of the trial, not the
culpability of the prosecutor. Here, the prosecutors' failure to
disclose the juror's job application, although requiring a
post-trial hearing on juror bias, did not deprive respondent of the
fair trial guaranteed by the Due Process Clause of the Fourteenth
Amendment. Pp. 455 U. S.
(c) Absent a violation of some right guaranteed respondent by
the Fourteenth Amendment, it was error for the lower courts to
order a new trial. Federal courts hold no supervisory authority
over state judicial proceedings, and may intervene only to correct
wrongs of constitutional dimension. P. 455 U. S.
632 F.2d 1019, reversed.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, BLACKMUN, POWELL, and O'CONNOR, JJ.,
joined. O'CONNOR, J., filed a concurring opinion, post,
455 U. S. 221
MARSHALL, J., filed a dissenting opinion, in which BRENNAN and
STEVENS, JJ., joined, post,
p. 455 U. S.
JUSTICE REHNQUIST delivered the opinion of the Court.
Respondent was convicted in November, 1974, by a New York state
court jury on two counts of murder and one count of attempted
murder. After trial, respondent moved to vacate his conviction
pursuant to § 330.30 of the N.Y.Crim.Proc.Law (McKinney 1971)
(CPL), [Footnote 1
] and a
hearing on his motion
Page 455 U. S. 211
was held pursuant to CPL § 330.40. [Footnote 2
] The hearing was held before the justice who
presided at respondent's trial, and the motion to vacate was denied
by him in an opinion concluding "beyond a reasonable doubt" that
the events giving rise to the motion did not influence the verdict.
People v. Phillips,
87 Misc.2d 613, 614, 630, 384 N.Y.S.2d
906, 907-908, 918 (1975). The Appellate Division of the Supreme
Court, First Judicial Department, affirmed the conviction without
opinion. 52 App.Div.2d 758, 384 N.Y.S.2d 715 (1976). The New York
Court of Appeals denied leave to appeal. 39 N.Y.2d 949, 352 N.E.2d
Some four years after the denial of leave to appeal by the Court
of Appeals, respondent sought federal habeas relief in the United
States District Court for the Southern District of New York on the
same ground which had been asserted in the state post-trial
hearing. The District Court granted the writ, 485 F.
(1980), and the United States Court of Appeals for
the Second Circuit affirmed on a somewhat different ground. 632
F.2d 1019 (1980). We granted certiorari to consider the important
questions of federal constitutional law in relation to federal
habeas proceedings raised by these decisions. 450 U.S. 909 (1981).
We now reverse.
Page 455 U. S. 212
Respondent's original motion to vacate his conviction was based
on the fact that a juror in respondent's case, one John Dana Smith,
submitted during the trial an application for employment as a major
felony investigator in the District Attorney's Office. [Footnote 3
] Smith had learned of the
position from a friend who had contacts within the office and who
had inquired on Smith's behalf without mentioning Smith's name or
the fact that he was a juror in respondent's trial. When Smith's
application was received by the office, his name was placed on a
list of applicants but he was not then contacted and was not known
by the office to be a juror in respondent's trial.
During later inquiry about the status of Smith's application,
the friend mentioned that Smith was a juror in respondent's case.
The attorney to whom the friend disclosed this fact promptly
informed his superior, and his superior in turn informed the
Assistant District Attorney in charge of hiring investigators. The
following day, more than one week before the end of respondent's
trial, the assistant informed the two attorneys actually
prosecuting respondent that one of the jurors had applied to the
office for employment as an investigator.
The two prosecuting attorneys conferred about the application
but concluded that, in view of Smith's statements during voir
was no need to inform the trial court or defense
Page 455 U. S. 213
counsel of the application. They did instruct attorneys in the
office not to contact Smith until after the trial had ended, and
took steps to insure that they would learn no information about
Smith that had not been revealed during voir dire.
the jury retired to deliberate on November 20th, three alternate
jurors were available to substitute for Smith, and neither the
trial court nor the defense counsel knew of his application. The
jury returned its verdict on November 21st.
The District Attorney first learned of Smith's application on
December 4th. Five days later, after an investigation to verify the
information, he informed the trial court and defense counsel of the
application and the fact that its existence was known to attorneys
in his office at some time before the conclusion of the trial.
Respondent's attorney then moved to set aside the verdict.
At the hearing before the trial judge, Justice Harold Birns, the
prosecuting attorneys explained their decision not to disclose the
application and Smith explained that he had seen nothing improper
in submitting the application during the trial. Justice Birns,
"[f]rom all the evidence adduced" at the hearing, 87 Misc.2d at
621, 384 N.Y.S.2d at 912, found that "Smith's letter was indeed an
indiscretion," but that it
"in no way reflected a premature conclusion as to the
[respondent's] guilt, or prejudice against the [respondent], or an
in ability to consider the guilt or innocence of the
Page 455 U. S. 214
solely on the evidence."
at 627, 384 N.Y.S.2d at 915. With respect to the
conduct of the prosecuting attorneys, Justice Birns found "no
evidence" suggesting "a sinister or dishonest motive with respect
to Mr. Smith's letter of application." Id.
at 618-619, 384
N.Y.S.2d at 910.
In his application for federal habeas relief, respondent
contended that he had been denied due process of law under the
Fourteenth Amendment to the United States Constitution by Smith's
conduct. The District Court found insufficient evidence to
demonstrate that Smith was actually biased. 485 F. Supp. at 1371.
Nonetheless, the court imputed bias to Smith because "the average
man in Smith's position would believe that the verdict of the jury
would directly affect the evaluation of his job application."
at 1371-1372. Accordingly, the court ordered
respondent released unless the State granted him a new trial within
The United States Court of Appeals for the Second Circuit
affirmed by a divided vote. The court noted that "it is, at best,
difficult and perhaps impossible to learn from a juror's own
testimony after the verdict whether he was in fact impartial,'"
but the court did not consider whether Smith was actually or
impliedly biased. 632 F.2d at 1022. Rather, the Court of Appeals
affirmed respondent's release simply because "the failure of the
prosecutors to disclose their knowledge denied [respondent] due
process." Ibid. The court explained:
"To condone the withholding by the prosecutor of information
casting substantial doubt as to the impartiality of a juror, such
as the fact that he has applied to the prosecutor for employment,
would not be fair to a defendant and would ill serve to maintain
public confidence in the judicial process."
at 1023. [Footnote
Page 455 U. S. 215
In argument before this Court, respondent has relied primarily
on reasoning adopted by the District Court. [Footnote 6
] He contends that a court cannot
possibly ascertain the impartiality of a juror by relying solely
upon the testimony of the juror in question. Given the human
propensity for self-justification, respondent argues, the law must
impute bias to jurors in Smith's position. We disagree.
This Court has long held that the remedy for allegations of
juror partiality is a hearing in which the defendant has the
opportunity to prove actual bias. For example, in Remmer v.
United States, 347 U. S. 227
(1954), a juror in a federal criminal trial was approached by
someone offering money in exchange for a favorable verdict. An FBI
agent was assigned to investigate the attempted bribe, and the
agent's report was reviewed by the trial judge and the prosecutor
without disclosure to defense counsel. When they learned of the
incident after trial, the defense attorneys moved that the verdict
be vacated, alleging that "they would have moved for a mistrial and
requested that the juror in question be replaced by an alternate
juror" had the incident been disclosed to them during trial.
at 347 U. S.
This Court recognized the seriousness not only of the attempted
bribe, which it characterized as "presumptively prejudicial," but
also of the undisclosed investigation, which was "bound to impress
the juror, and [was] very apt to do so
Page 455 U. S. 216
Despite this recognition, and a
conviction that "[t]he integrity of jury proceedings must not be
jeopardized by unauthorized invasions," ibid.,
did not require a new trial like that ordered in this case. Rather,
the Court instructed the trial judge to
"determine the circumstances, the impact thereof upon the juror,
and whether or not [they were] prejudicial, in a hearing
with all interested parties permitted to participate."
at 347 U. S. 230
(emphasis added). In other words, the Court ordered precisely the
remedy which was accorded by Justice Birns in this case.
Even before the decision in Remmer,
confronted allegations of implied juror bias in Dennis v.
United States, 339 U. S. 162
(1950). Dennis was convicted of criminal contempt for failure to
appear before the Committee on UnAmerican Activities of the House
of Representatives. He argued that the jury which convicted him,
composed primarily of employees of the United States Government,
was inherently biased because such employees were subject to
Executive Order No. 9835, 3 CFR 627 (1943-1948 Comp.), which
provided for their discharge upon reasonable grounds for belief
that they were disloyal to the Government. Dennis contended that
such employees would not risk the charge of disloyalty or the
termination of their employment which might result from a vote for
acquittal. The Court rejected this claim of implied bias, noting
that Dennis was "free to show the existence of actual bias," but
had failed to do so. 339 U.S. at 339 U. S. 167
The Court thus concluded:
"A holding of implied bias to disqualify jurors because of their
relationship with the Government is no longer permissible. . . .
Preservation of the opportunity to prove actual bias is a guarantee
of a defendant's right to an impartial jury."
at 339 U. S.
-172. See also Frazier v. United States,
335 U. S. 497
(1948); United States v. Wood, 299 U.
Our decision last Term in Chandler v. Florida,
449 U. S. 560
(1981), also treated a claim of implied juror bias. Appellants in
were convicted of various theft crimes at a
Page 455 U. S. 217
jury trial which was partially televised under a new Canon of
Judicial Ethics promulgated by the Florida Supreme Court. They
claimed that the unusual publicity and sensational courtroom
atmosphere created by televising the proceedings would influence
the jurors and preclude a fair trial. Consistent with our previous
decisions, we held that
"the appropriate safeguard against such prejudice is the
defendant's right to demonstrate that the media's coverage of his
case -- be it printed or broadcast -- compromised the ability of
the particular jury that heard the case to adjudicate fairly."
at 449 U. S. 575
Because the appellants did
"not [attempt] to show with any specificity that the presence of
cameras impaired the ability of the jurors to decide the case on
only the evidence before them,"
we refused to set aside their conviction. Id.
449 U. S.
These cases demonstrate that due process does not require a new
trial every time a juror has been placed in a potentially
compromising situation. Were that the rule, few trials would be
constitutionally acceptable. The safeguards of juror impartiality,
such as voir dire
and protective instructions from the
trial judge, are not infallible; it is virtually impossible to
shield jurors from every contact or influence that might
theoretically affect their vote. Due process means a jury capable
and willing to decide the case solely on the evidence before it,
and a trial judge ever watchful to prevent prejudicial occurrences
and to determine the effect of such occurrences when they happen.
Such determinations may properly be made at a hearing like that
ordered in Remmer
and held in this case. [Footnote 7
Page 455 U. S. 218
The District Court and the Court of Appeals disregarded this
doctrine: they held that a post-trial hearing comporting with our
decisions in Remmer
and other cases prosecuted in the
courts was constitutionally insufficient in a
state court under the Due Process Clause of the Fourteenth
Amendment. It seems to us to follow "as the night the day" that if,
in the federal system, a post-trial hearing such as that conducted
here is sufficient to decide allegations of juror partiality, the
Due Process Clause of the Fourteenth Amendment cannot possibly
require more of a state court system. [Footnote 8
Of equal importance, this case is a federal habeas action in
which Justice Birns' findings are presumptively correct under 28
U.S.C. § 2254(d). We held last Term that federal courts in such
proceedings must not disturb the findings of state courts unless
the federal habeas court articulates some basis for disarming such
findings of the statutory presumption that they are correct and may
be overcome only by convincing evidence. Sumner v. Mata,
449 U. S. 539
449 U. S. 551
(1981). Here neither the District Court nor the Court of Appeals
took issue with the findings of Justice Birns.
As already noted, the Court of Appeals did not rely upon the
District Court's imputation of bias. Indeed, it did not even reach
the question of juror bias, holding instead that the prosecutors'
failure to disclose Smith's application, without more, violated
respondent's right to due process of law. Respondent contends that
the Court of Appeals thereby correctly
Page 455 U. S. 219
preserved "the appearance of justice." Brief for Respondent 7.
This contention, too, runs contrary to our decided cases.
Past decisions of this Court demonstrate that the touchstone of
due process analysis in cases of alleged prosecutorial misconduct
is the fairness of the trial, not the culpability of the
prosecutor. In Brady v. Maryland, 373 U. S.
(1963), for example, the prosecutor failed to
disclose an admission by a participant in the murder which
corroborated the defendant's version of the crime. The Court held
that a prosecutor's suppression of requested evidence
"violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith
of the prosecution."
at 373 U. S. 87
Applying this standard, the Court found the undisclosed admission
to be relevant to punishment, and thus ordered that the defendant
be resentenced. Since the admission was not material to guilt,
however, the Court concluded that the trial itself complied with
the requirements of due process despite the prosecutor's wrongful
suppression. [Footnote 9
Court thus recognized that the aim of due process "is not
punishment of society for the misdeeds of the prosecutor, but
avoidance of an unfair trial to the accused." Ibid.
This principle was reaffirmed in United States v.
Agurs, 427 U. S. 97
(1976). There we held that a prosecutor must disclose unrequested
evidence which would create a reasonable doubt of guilt that did
not otherwise exist. Consistent
Page 455 U. S. 220
we focused not upon the prosecutor's
failure to disclose, but upon the effect of nondisclosure on the
"Nor do we believe the constitutional obligation [to disclose
unrequested information] is measured by the moral culpability, or
willfulness, of the prosecutor. If evidence highly probative of
innocence is in his file, he should be presumed to recognize its
significance even if he has actually overlooked it. Conversely, if
evidence actually has no probative significance at all, no purpose
would be served by requiring a new trial simply because an inept
prosecutor incorrectly believed he was suppressing a fact that
would be vital to the defense. If the suppression of the evidence
results in constitutional error, it is because of the character of
the evidence, not the character of the prosecutor."
427 U.S. at 427 U. S. 110
(footnote and citation omitted). [Footnote 10
In light of this principle, it is evident that the Court of
Appeals erred when it concluded that prosecutorial misconduct alone
requires a new trial. We do not condone the conduct of the
prosecutors in this case. Nonetheless, as demonstrated in
455 U. S.
Smith's conduct did not impair his ability to render an impartial
verdict. The trial judge expressly so found. 87 Misc.2d at 627, 384
N.Y.S.2d at 915.
Page 455 U. S. 221
Therefore, the prosecutors' failure to disclose Smith's job
application, although requiring a post-trial hearing on juror bias,
did not deprive respondent of the fair trial guaranteed by the Due
A federally issued writ of habeas corpus, of course, reaches
only convictions obtained in violation of some provision of the
United States Constitution. As we said in Cupp v.
Naughten, 414 U. S. 141
414 U. S. 146
"Before a federal court may overturn a conviction resulting from
a state trial . . . it must be established not merely that the
[State's action] is undesirable, erroneous, or even 'universally
condemned,' but that it violated some right which was guaranteed to
the defendant by the Fourteenth Amendment."
Absent such a constitutional violation, it was error for the
lower courts in this case to order a new trial. Even if the Court
of Appeals believed, as the respondent contends, that prosecutorial
misbehavior would "reign unchecked" unless a new trial was ordered,
it had no authority to act as it did. Federal courts hold no
supervisory authority over state judicial proceedings, and may
intervene only to correct wrongs of constitutional dimension.
Chandler v. Florida,
449 U.S. at 449 U. S. 570
449 U. S.
-583; Cupp v. Naughten, supra,
414 U. S. 146
No such wrongs occurred here. Accordingly, the judgment of the
Court of Appeals is
Section 330.30 provides in pertinent part:
"At any time after rendition of a verdict of guilty and before
sentence, the court may, upon motion of the defendant, set aside or
modify the verdict or any part thereof upon the following
"* * * *"
"2. That during the trial there occurred, out of the presence of
the court, improper conduct by a juror, or improper conduct by
another person in relation to a juror, which may have affected a
substantial right of the defendant and which was not known to the
defendant prior to the rendition of the verdict. . . ."
CPL § 330.40 provides that motions to set aside the verdict
under CPL 330.30 must be decided by hearing if they allege disputed
facts sufficient to grant the motion. At the hearing, "the
defendant has the burden of proving by a preponderance of the
evidence every fact essential to support the motion." CPL §
Smith's letter of application was addressed to the District
Attorney and stated:
"I understand that a federally funded investigative unit is
being formed in your office to investigate major felonies. I wish
to apply for a position as an investigator."
The letter did not mention that Smith was a juror in
respondent's trial. Appended to the letter was a resume containing
biographical information about Smith. People v. Philllps,
87 Misc.2d 613, 616, 384 N.Y.S.2d 906. 909 (1975).
The trial judge described the voir dire
case as "ten days of meticulous examination." Id.
384 N.Y.S.2d. at 907. During his voir dire,
that he intended to pursue a career in law enforcement and that he
had applied for employment with a federal drug enforcement agency.
He also disclosed that his wife was interested in law enforcement,
an interest which arose out of an incident in which she was
assaulted and seriously injured. Smith stated that he had
previously worked as a store detective for Bloomingdale's
Department Store, and, in that capacity, had made several arrests
which led to contact with the District Attorney's Office. In
response to close inquiry by defense counsel, Smith declared his
belief that he could be a fair and impartial juror in the case.
This assurance apparently satisfied defense counsel, for Smith was
permitted to take his seat among the jurors even though the defense
had several unused peremptory challenges.
This conclusion was based upon the majority's reading of our
decision in United States v. Agurs, 427 U. S.
(1976), a reading by which it concluded that due
process is violated when the prosecutor's actions treat a defendant
unfairly or impugn the integrity of the judicial process, even if
the defendant is not thereby prejudiced. 632 F.2d 1019, 1023
(1980). As will be seen in 455 U. S.
Court of Appeals misread Agurs.
Respondent may, of course, defend the judgment below on any
ground which the law and the record permit, provided the asserted
ground would not expand the relief which has been granted.
United States v. New York Telephone Co., 434 U.
, 434 U. S. 166
n. 8 (1977); Dandridge v. Williams, 397 U.
, 397 U. S. 475
n. 6 (1970); Ryerson v. United States, 312 U.
, 312 U. S. 408
Respondent correctly notes that determinations made in
-type hearings will frequently turn upon testimony
of the juror in question, but errs in contending that such evidence
is inherently suspect. As we said in Dennis v. United
States, 339 U. S. 162
"[o]ne may not know or altogether understand the imponderables
which cause one to think what he thinks, but surely one who is
trying as an honest man to live up to the sanctity of his oath is
well qualified to say whether he has an unbiased mind in a certain
at 339 U. S. 171
See also United State v.
12 How. 361, 53 U. S. 366
In connection with his argument that due process was denied by
the prosecutors' withholding of Smith's application, respondent
notes that, had the prosecutors disclosed the application, the
trial court could have replaced Smith with an alternate juror.
Thus, respondent argues, not only was the prosecutors' action
itself a denial of due process, but it also prevented respondent
from availing himself of the process available under New York law
for correcting juror bias. See
N.Y. CPL § 270.35 (McKinney
1971). This argument proves too much. If the hearing and
determination to replace a juror during trial would have adequately
protected respondent's right to due process of law, and would not
have been rendered impossible by necessary reliance on the juror's
own testimony, we see no reason why a post-trial hearing and
determination would be any less protective or possible.
As we said of Brady
in United States v. Agurs,
427 U.S. at 427 U. S.
"[T]he confession could not have affected the outcome on the
issue of guilt, but could have affected Brady's punishment. It was
material on the latter issue, but not on the former. And since it
was not material on the issue of guilt, the entire trial was not
lacking in due process."
Even in cases of egregious prosecutorial misconduct, such as the
knowing use of perjured testimony, we have required a new trial
only when the tainted evidence was material to the case. See
Giglio v. United States, 405 U. S. 150
405 U. S. 154
(1972); Napue v. Illinois, 360 U.
, 360 U. S. 272
(1959). This materiality requirement implicitly recognizes that the
misconduct's effect on the trial, not the blameworthiness of the
prosecutor, is the crucial inquiry for due process purposes.
We note, of course, that nothing in this case suggests that the
prosecutors' conduct was undertaken in bad faith. As the trial
"there is no evidence which to any degree points to a conclusion
that any member of the District Attorney's staff, . . . or any
court officer, had a sinister or dishonest motive with respect to
Mr. Smith's letter of application, or sought to gain thereby an
unfair advantage over the defendant."
87 Misc.2d at 618-619, 384 N.Y.S.2d at 910.
JUSTICE O'CONNOR, concurring.
I concur in the Court's opinion, but write separately to express
my view that the opinion does not foreclose the use of "implied
bias" in appropriate circumstances.
Determining whether a juror is biased or has prejudged a case is
difficult, partly because the juror may have an interest
Page 455 U. S. 222
in concealing his own bias and partly because the juror may be
unaware of it. The problem may be compounded when a charge of bias
arises from juror misconduct, and not simply from attempts of third
parties to influence a juror.
Nevertheless, I believe that, in most instances, a
postconviction hearing will be adequate to determine whether a
juror is biased. A hearing permits counsel to probe the juror's
memory, his reasons for acting as he did, and his understanding of
the consequences of his actions. A hearing also permits the trial
judge to observe the juror's demeanor under cross-examination, and
to evaluate his answers in light of the particular circumstances of
I am concerned, however, that, in certain instances, a hearing
may be inadequate for uncovering a juror's biases, leaving serious
question whether the trial court had subjected the defendant to
manifestly unjust procedures resulting in a miscarriage of justice.
While each case must turn on its own facts, there are some extreme
situations that would justify a finding of implied bias. Some
examples might include a revelation that the juror is an actual
employee of the prosecuting agency, that the juror is a close
relative of one of the participants in the trial or the criminal
transaction, or that the juror was a witness or somehow involved in
the criminal transaction. Whether or not the state proceedings
result in a finding of "no bias," the Sixth Amendment right to an
impartial jury should not allow a verdict to stand under such
Page 455 U. S. 223
None of our previous cases precludes the use of the conclusive
presumption of implied bias in appropriate circumstances.
Remmer v. United States, 347 U. S. 227
(1954), on which the Court heavily relies, involved not juror
misconduct, but the misconduct of a third party who attempted to
bribe a juror. Under those circumstances, where the juror has not
been accused of misconduct or has no actual stake in the outcome of
the trial, and thus has no significant incentive to shield his
biases, a postconviction hearing could adequately determine whether
or not the juror was biased. In Dennis v. United States,
339 U. S. 162
(1950), the Court rejected a claim that a juror's employment with
the Federal Government was a ground to find implied bias, but did
not foreclose a finding of implied bias in more serious situations.
Justice Reed, who concurred in the Court's opinion, wrote that he
"the Court's decision to mean that Government employees may be
barred for implied bias when circumstances are properly brought to
the court's attention which convince the court that Government
employees would not be suitable jurors in a particular case."
at 339 U. S.
Moreover, this Court has used implied bias to reverse a
conviction. In Leonard v. United States, 378 U.
(1964) (per curiam), the Court held that
prospective jurors who had heard the trial court announce the
Page 455 U. S. 224
verdict in the first trial should be automatically disqualified
from sitting on a second trial on similar charges.
Because there may be circumstances in which a postconviction
hearing will not be adequate to remedy a charge of juror bias, it
is important for the Court to retain the doctrine of implied bias
to preserve Sixth Amendment rights. I read the Court's opinion as
not foreclosing the use of implied bias in appropriate situations,
and therefore I concur.
* In the exceptional situations that may require application of
an "implied bias" doctrine, the lower federal courts need not be
deterred by 28 U.S.C. § 2254(d), which provides that, in a federal
"a determination after a hearing on the merits of a factual
issue, made by a State court of competent jurisdiction . . .
evidenced by a written finding, written opinion, or other reliable
and adequate written indicia, shall be presumed to be correct,
unless the applicant shall establish or it shall otherwise appear .
"(2) that the factfinding procedure employed by the State court
was not adequate to afford a full and fair hearing;"
"* * * *"
"(6) that the applicant did not receive a full, fair, and
adequate hearing in the State court proceeding; or"
"(7) that the applicant was otherwise denied due process of law
in the State court proceeding. . . ."
In those extraordinary situations involving implied bias, state
court proceedings resulting in a finding of "no bias" are, by
definition, inadequate to uncover the bias that the law
JUSTICE MARSHALL, with whom JUSTICE BRENNAN and JUSTICE STEVENS
Juror John Smith vigorously pursued employment with the office
of the prosecutor throughout the course of his jury service in
respondent's state criminal trial. The prosecutors learned of
Smith's efforts during the trial, but improperly failed to disclose
this information until after the jury had returned a verdict of
guilty against respondent. The state court conducted a post-trial
evidentiary hearing and determined that the juror was not actually
biased. Thus, it ruled that respondent was not prejudiced, and
refused to set aside the conviction. Respondent subsequently filed
a petition for a writ of habeas corpus in the United States
District Court for the Southern District of New York, claiming that
he was denied his constitutional right to an impartial jury. The
District Court ruled that the conviction should be set aside, and
the United States Court of Appeals for the Second Circuit affirmed.
A majority of this Court now reverses, holding that the post-trial
evidentiary hearing provided sufficient protection to respondent's
right to an impartial jury. Because I find the majority's analysis
completely unpersuasive, I dissent.
The right to a trial by an impartial jury lies at the very heart
of due process. Irvin v. Dowd, 366 U.
, 366 U. S.
Page 455 U. S. 225
(1961). [Footnote 2/1
"[O]ur common law heritage, our Constitution, and our experience
in applying that Constitution have committed us irrevocably to the
position that the criminal trial has one well-defined purpose -- to
provide a fair and reliable determination of guilt."
Estes v. Texas, 381 U. S. 532
381 U. S. 565
(1965) (Warren, C.J., with whom Douglas and Goldberg, JJ., joined,
concurring). That purpose simply cannot be achieved if the jury's
deliberations are tainted by bias or prejudice. Fairness and
reliability are assured only if the verdict is based on calm,
reasoned evaluation of the evidence presented at trial. Thus, time
and time again, in a broad variety of contexts, the Court has
adopted strong measures to protect the right to trial by an
The Court has insisted that defendants be given a fair and
meaningful opportunity during voir dire
whether prospective jurors are biased, even if they have no
specific prior knowledge of bias. In Ham v. South
Carolina, 409 U. S. 524
(1973), the Court held that a trial court may not deny a Negro
defendant the opportunity to question prospective jurors on the
subject of racial prejudice when the circumstances suggest the need
for such questioning. Even when questions about racial prejudice
are not required, a generalized and thorough inquiry into prejudice
is necessary. Ristaino v. Ross, 424 U.
Page 455 U. S. 226
The Court has also insisted that the jury be selected from a
representative cross-section of the community. Selection procedures
that exclude significant portions of the population, and thus
increase the risk of bias, are invalid. For example, in Peters
v. Kiff, 407 U. S. 493
(1972), the Court invalidated a selection procedure that resulted
in the systematic exclusion of Negroes. [Footnote 2/2
] Similarly, in Taylor v.
Louisiana, 419 U. S. 522
(1975), the Court struck down a state rule excluding women from
compulsory jury service. [Footnote
] And in Witherspoon v. Illinois, 391 U.
(1968), the Court ruled that a defendant in a
capital case was denied his right to an impartial jury on the issue
of sentence when the trial judge automatically excluded jurors who
had scruples against capital punishment.
The right to a jury drawn from a fair cross-section of the
community extends even to defendants who are not members of the
excluded class. In Peters v. Kiff, supra,
challenging the exclusion of blacks was white; in Taylor v.
the defendant challenging the exclusion of
women was male. Exclusion is impermissible not simply because
jurors who are not members of the defendant's class may be
prejudiced against the defendant, but also because the jury would
be deprived of "a perspective on human events that may have
unsuspected importance in any case that may be presented."
Peters v. Kiff, supra,
at 407 U. S.
-504 (opinion announcing judgment). See also
Taylor v. Louisiana, supra,
at 419 U. S. 531
Page 455 U. S. 227
The Court has also acted to protect defendants from the
possibility that jurors might be prejudiced by extensive pretrial
publicity. In Rideau v. Louisiana, 373 U.
(1963), it ruled that the trial court should have
granted a request for a change in venue when the entire community
had seen the defendant confess to the crime in a police
interrogation broadcast on television. The Court did not require a
particularized showing that the confession actually prejudiced the
jurors against the defendant. Later, in Irvin v. Dowd,
366 U. S. 717
(1961), the Court reversed a conviction where widespread and
inflammatory publicity had preceded the trial, even though each of
the jurors had insisted that he would remain impartial.
Similarly, the Court has stated that defendants must be
protected from the impact on jurors of publicity during trial.
Although an absolute constitutional ban on news coverage of trials
by the print or broadcast media cannot be justified, the defendant
must be given an opportunity to demonstrate that the media's
coverage of his case compromised the ability of the particular jury
that heard the case to weigh the evidence fairly. Chandler v.
Florida, 449 U. S. 560
449 U. S. 575
(1981); see also Nebraska Press Assn. v. Stuart,
427 U. S. 539
427 U. S.
-565 (1976); Estes v. Texas, supra.
The Court has guarded against other conduct by third parties
that might affect the jury's impartiality. In Remmer v. United
States, 347 U. S. 227
(1954), it ruled that any communication with a juror during a trial
about the matter pending before the jury "is, for obvious reasons,
deemed presumptively prejudicial." Id.
at 347 U. S. 229
Although this presumption is not conclusive,
"the burden rests heavily upon the Government to establish,
after notice to and hearing of the defendant, that such contact
with the juror was harmless to the defendant."
Ibid. See also Turner v. Louisiana,
379 U. S. 466
(1965) (jury could not try a case after it had been placed
Page 455 U. S. 228
in protective custody of deputy sheriffs who had been the
principal prosecution witnesses, even though jurors might not have
been influenced by the association).
To summarize, the Court has required inquiry into prejudice even
when there was no evidence that a particular juror was biased; has
regarded the absence of a balanced perspective, and not simply the
existence of bias against defendant, as a cognizable form of
prejudice; has not always required a particularized showing of
prejudice; and has strongly presumed that contact with a juror
initiated by a third party is prejudicial. In this case, where
there was evidence that juror Smith had a serious conflict of
interest, and where that conflict would inevitably distort his
perspective on the case, the majority nevertheless holds that the
juror's simple assertion, after the verdict, that he was not biased
sufficiently protects respondent's right to trial by an impartial
jury. This holding is utterly inconsistent with the Court's
historical recognition of this "most priceless" right. Irvin,
at 366 U. S.
The majority concedes the importance of the right to a trial by
an impartial jury. It claims, however, that respondent's right was
adequately protected here, because the state trial judge conducted
a post-verdict evidentiary hearing and concluded that Smith was not
actually biased. According to the majority, the Constitution
requires only that the defendant be given an opportunity to prove
actual bias. Indeed, it would apparently insist on proof of actual
bias not only when a juror had applied for employment with the
prosecutor's office, but also when the juror was already employed
in the prosecutor's office, or when he served as a prosecuting
attorney. The majority relies on the premise that an evidentiary
hearing provides adequate assurance that prejudice does not exist.
This premise however, ignores basic human psychology. In cases like
this one, an evidentiary hearing can never adequately protect the
right to an impartial jury.
Page 455 U. S. 229
Despite the majority's suggestions to the contrary, juror Smith
was not a passive, indifferent job applicant. [Footnote 2/5
] He began pursuing employment as an
investigator in the Office of the District Attorney on September
23, 1974, the same day he was sworn in. He asked a friend, Criminal
Court Officer Rudolph Fontaine, to determine the proper method of
applying for employment. Once he had completed his application, he
gave it to Fontaine for hand delivery to the District Attorney's
Office, apparently because he assumed that the court officer had a
personal contact in the office. In addition, after the application
had been filed, he met regularly with Fontaine and Jury Warden
Mario Piazza in order to determine the progress of his application.
On November 21, 1974, the jury returned a verdict of guilt, and the
trial ended. The very next day, Smith phoned the District
Attorney's Office to check on the status of his application. When
he was unable to get in touch with anyone who knew about his
application, he asked his former supervisor to make inquiries in
When a juror vigorously and actively pursues employment in the
prosecutor's office throughout the course of a trial, the
probability of bias is substantial. This bias may be conscious,
part of a calculated effort to obtain a job. The juror may believe
that his application will be viewed favorably if the defendant is
found guilty. Thus, he may decide to vote for a verdict of guilty
regardless of the evidence, and he may attempt to persuade the
other jurors that acquittal is not justified. There is also a very
serious danger of unconscious bias. Only individuals of
extraordinary character would not be affected in some way by their
interest in future employment.
Page 455 U. S. 230
Subconsciously, the juror may tend to favor the prosecutor
simply because he feels some affinity with his potential employer.
Indeed, the juror may make a sincere effort to remain impartial,
and yet be unable to do so.
Not only is the probability of bias high, it is also unlikely
that a post-trial evidentiary hearing would reveal this bias. As
the Court of Appeals stated, given the human propensity for
self-justification, it is very difficult "to learn from a juror's
own testimony after the verdict whether he was in fact
impartial.'" 632 F.2d 1019, 1022 (CA2 1980). Certainly, a juror
is unlikely to admit that he had consciously plotted against the
defendant during the course of the trial. Such an admission would
have subjected juror Smith to criminal sanctions. [Footnote 2/6] It would also have damaged his
prospects for a career in law enforcement. A law enforcement agency
is unlikely to hire an investigator whose credibility could always
be impeached by an admission that he had disregarded his juror's
oath in a criminal trial.
Even when the bias was not part of an affirmative course of
misconduct, however, but was unconscious, a juror is unlikely to
admit that he had been unable to weigh the evidence fairly. If he
honestly believes that he remained impartial throughout the trial,
no amount of questioning will lead to an admission. Rather, the
juror will vehemently deny any accusations of bias. [Footnote 2/7
In the past, the Court has recognized that the question whether
a juror is prejudiced poses substantial problems of proof.
Page 455 U. S. 231
"Bias or prejudice is such an elusive condition of the mind that
it is most difficult, if not impossible, to always recognize its
existence, and it might exist in the mind of one (on account of his
relations with one of the parties) who was quite positive that he
had no bias, and said that he was perfectly able to decide the
question wholly uninfluenced by anything but the evidence."
Crawford v. United States, 212 U.
, 212 U. S. 196
(1909). Similarly, in Irwin v. Dowd,
366 U.S. at
366 U. S. 728
the Court stated that, although a juror may be sincere when he says
that he was fair and impartial to the defendant, the "psychological
impact requiring such a declaration before one's fellows is often
its father." And in Peters v. Kiff,
the opinion announcing
the judgment stated: "It is in the nature of the practices here
challenged that proof of actual harm, or lack of harm, is virtually
impossible to adduce." 407 U.S. at 407 U. S. 504
(MARSHALL, J., joined by Douglas and Stewart, JJ.).
I believe that, in cases like this one, where the probability of
bias is very high and where the evidence adduced at a hearing can
offer little assurance that prejudice does not exist, the juror
should be deemed biased as a matter of law. Specifically, where a
juror pursues employment with the office of the prosecutor, under
circumstances highly suggestive of misconduct or conflict of
interest, bias should be "implied," and he should be automatically
disqualified despite the absence of proof of actual bias. If the
juror's efforts to secure employment are not revealed until after
the trial, the conviction must be set aside. [Footnote 2/8
] The right to a trial by an impartial
Page 455 U. S. 232
jury is too important, and the threat to that right too great,
to justify rigid insistence on actual proof of bias. Such a
requirement blinks reality.
Adoption of a conclusive presumption of bias in these limited
circumstances would not be without precedent; such presumptions of
juror bias have ancient historical roots. At English common law,
prospective jurors could be challenged not only when the defendant
could prove actual bias but also when the circumstances were such
that bias could be implied. [Footnote
] Blackstone states that exclusion of a prospective juror
for implied bias is appropriate when it is shown:
"that [he] is of kin to either party within the ninth degree;
that he has been arbitrator on either side; that he has an interest
in the cause; that there is an action pending between him and the
party; that he has taken money for his verdict; that he has
formerly been a juror in the same cause; that he is the party's
master, servant, counsellor, steward, or attorney, or of the same
society or corporation with him."
3 W. Blackstone, Commentaries 480-481 (W. Hammond ed. 1890).
Page 455 U. S. 233
Similarly, Bracton states that, if the defendant
"suspects any of the twelve jurors he may remove him for just
cause, . . . as where there are deadly enmities between some of
them and the indicted man, or there is a greedy desire to get his
land . . . ; if there is ground for suspicion, all are to be
removed, that the inquiry may proceed free from all doubts."
2 S. Thorne, Bracton on the Laws and Customs of England 405
The States also employ rules of implied bias. Most jurisdictions
have statutes that set forth conduct or status that will
automatically disqualify prospective jurors, without regard to
whether that person is actually biased. These statutes frequently
exclude persons related to the prosecution, defense counsel, a
witness, or the defendant. [Footnote
] The New York statute, which would have been applied here
if juror Smith's intention to apply for a job had come to light
during voir dire,
is especially broad; it disqualifies any
person who has a relationship to a party or witness to the action
which is likely to preclude that person from rendering an impartial
verdict. N.Y.Crim.Proc.Law § 270.20(1)(c) (McKinney 1971). This
provision, added to the statute in 1971, calls for the application
of an "average person" standard, and does not require proof that
the particular potential juror would be biased. See, e.g.,
People v. Provenzano,
50 N.Y.2d 420, 424, 407 N.E.2d 408, 410
(1980). [Footnote 2/11
Page 455 U. S. 234
Some state courts have also permitted challenges for implied
bias on a case-by-case basis. [Footnote 2/12
] In fact, at least one court has presumed
bias in circumstances very similar to those presented here. In
Haak v. State,
___ Ind. ___, 417 N.E.2d
(1981), the Indiana Supreme Court held that a woman whose
husband was offered a position on the prosecutor's staff on the day
that she was selected as a juror in a rape case was impliedly
biased. The court stated that the juror's bias could not be
"avoided or dissolved by admonitions from the court or by the
juror's assertion that she believed she could judge the case
at ___, 417 N.E.2d at 326. It was
unrealistic to "expect a juror in this situation to act with an
even hand toward both parties." Ibid.
Thus, the trial
judge erred in refusing to grant defendant's motion for a mistrial.
] See also
Tableporter v. Urist,
157 Misc. 347, 283 N.Y.S. 350
(Mun.Ct.1935) (conviction set aside where juror's son applied to
defendant for a job).
Of course, the fact that many States employ rules of implied
bias in situations similar to those presented here does not
necessarily imply that such rules are constitutionally mandated.
] The widespread
state practice does, however,
Page 455 U. S. 235
support that conclusion. The States would not adopt such rules
at the expense of their strong interest in efficiently procuring
convictions if they were not committed to safeguarding the right to
trial by an impartial jury, and if they did not believe that this
right was seriously threatened.
In concluding that an implied bias rule is not appropriate, and
that a post-trial evidentiary hearing is an adequate remedy, the
majority relies heavily on this Court's decision in Remmer v.
United States, 347 U. S. 227
(1954). The defendant in that case was being tried for income tax
evasion. During the course of the trial, an unnamed person
attempted to bribe a juror. The juror reported this incident to the
trial judge, who asked the Federal Bureau of Investigation (FBI) to
conduct an investigation. After interviewing the juror, the FBI
concluded that the bribery attempt had been made "in jest,"
at 347 U. S. 228
and had not had a prejudicial impact. The trial judge decided not
to take any action. The defense learned of the incident after the
jury returned a verdict of guilty. It moved for a new trial,
complaining that the bribery attempt and the FBI investigation were
likely to have influenced the jury's deliberations. The Court held
that any private communication with a juror during trial about the
matter pending before the jury is presumptively prejudicial. It
stated, however, that this presumption is not conclusive, and that
the Government should be given an opportunity to show that the
contact was harmless. The Court then remanded the case to the
District Court with directions to hold a hearing to determine
whether the incident was harmful, and if so, to grant a new
According to the majority, Remmer
establishes that a
post-verdict inquiry will always be the appropriate remedy where
claims of jury prejudice are raised after the conclusion of the
trial. The holding of Remmer
is not nearly so broad,
however. The Court did not purport to address instances of
Page 455 U. S. 236
serious juror misconduct in which bias could be implied. An
examination of the facts of that case reveals that the danger of
bias was much less substantial in that case than in this one. The
defendant claimed only that the jury might have been influenced by
the unsuccessful bribery attempt and the FBI investigation. There
were no allegations that the jurors themselves were guilty of
misconduct. Moreover, even if the jurors were influenced by the
bribery attempt made "in jest" or the contact with the FBI, an
evidentiary hearing was more likely to reveal that impact. A juror
will be less reluctant to admit that he was disturbed or upset by
the misconduct of a third party than to admit that he himself acted
improperly. The majority also relies upon this Court's decisions in
Dennis v. United States, 339 U. S. 162
(1950); Frazier v. United States, 335 U.
(1948); and United States v. Wood,
299 U. S. 123
(1936). [Footnote 2/15
] In these
cases, the Court indicated that the fact that a juror was employed
by the Federal Government did not, by itself, require a finding of
implied bias in cases in which the Government was a party.
] The Court was not
persuaded by "vague conjectures" that Government employees are
"peculiarly vulnerable" to a "miasma of fear," or are "so
intimidated that they cringe before their Government in fear of
investigation and loss of employment if they do their duty as
jurors." Dennis, supra,
at 339 U. S. 172
Page 455 U. S. 237
these cases do not hold that an implied bias rule would never be
appropriate. In all three decisions, the Court stressed that trial
judges would retain power to safeguard the interests of the
defendant where circumstances suggest a real danger of bias. This
power surely includes the application of a per se
where necessary. Dennis, supra,
at 339 U. S. 168
at 335 U. S. 511
at 299 U. S. 150
Indeed, in Leonard v. United States, 378 U.
(1964) (per curiam), this Court explicitly
endorsed the application of an implied bias rule. [Footnote 2/18
] The petitioner in that case was
Page 455 U. S. 238
in separate trials of forging Government checks and of
transporting forged instrument in interstate commerce. The two
cases were tried in succession. The jury in the first case
announced its guilty verdict in open court in the presence of the
jury panel from which the jurors who were to try the second case
were selected. Petitioner objected, but the objection was
overruled. This Court reversed, holding that prospective jurors who
have sat in the courtroom and heard a verdict returned against an
individual immediately prior to that individual's trial on a
similar charge should be automatically disqualified. [Footnote 2/19
In short, this Court's cases do not establish that an automatic
disqualification rule is never appropriate. To the contrary,
reveals that the Court has employed such a rule in
those limited circumstances presenting an unusually high
probability that a juror is biased and a similarly high probability
that a hearing will not reveal that bias.
The majority also emphasizes that federal courts exercising
habeas corpus jurisdiction must ordinarily defer to state court
findings of fact. It points to 28 U.S.C. § 2254(d),
Page 455 U. S. 239
which provides that state court factfinding should be presumed
correct. Of course, federal courts have limited power of review in
habeas corpus proceedings. I think it clear, however, that
deference is not appropriate under the circumstances of this
As I have already explained, I do not believe that it was
possible for the state court to determine, on the basis of an
evidentiary hearing, whether Smith was biased. The state
factfinding was inherently unreliable. Section 2254(d) recognizes
that deference is not appropriate in such cases. It provides that
the presumption in favor of state factfinding may be overcome when
"the applicant did not receive a full, fair, and adequate hearing
in the state court proceeding," or when "he was otherwise denied
due process of law." §§ 2254(d)(6), (7). The evidentiary hearing
conducted here was not fair and adequate. Furthermore, because the
hearing could not protect sufficiently the right to an impartial
jury, respondent was denied due process. Under the circumstances, §
2254(d) does not bar review of the state court decision.
I would also affirm the decision of the Court of Appeals on an
alternative ground. Respondent was prejudiced by the
Page 455 U. S. 240
prosecutors' failure to disclose during the trial their
knowledge that juror Smith had applied for a job with the Office of
the District Attorney. If the prosecutors had informed the court in
a timely fashion, an alternate juror would almost certainly have
been selected, thus ending any danger of bias.
The prosecutors' conduct in withholding the information was
clearly improper. At the evidentiary hearing, they claimed that
they failed to disclose the fact that Smith had applied for a job
with their office in part because they were caught up in
preparations for the final stages of trial. This explanation is not
convincing. At the close of the evidence, the prosecutors revealed
that another juror, Bethel, had been arrested on a narcotics charge
prior to trial, and had agreed to cooperate with the District
Attorney's Office in exchange for dismissal of the charges. After
this disclosure, and an in camera
hearing, the parties
consented to the discharge of this juror, and his replacement by
one of four alternates. The fact that the prosecutors were willing
to disclose information concerning Bethel suggests that they failed
to reveal Smith's conduct not because of time pressures, but
because they believed that Smith's presence on the jury would be
valuable. [Footnote 2/20
the petitioner now concedes that the prosecutors should have
informed the trial judge and the defense as soon as they learned of
Smith's application, and that their failure to do so was
The majority argues that prosecutorial misconduct, by itself, is
not sufficient to justify reversal of a conviction in habeas
Page 455 U. S. 241
corpus proceedings. [Footnote
] It relies primarily on this Court's decisions in
United Sates v. Agurs, 427 U. S. 97
427 U. S. 110
427 U. S. 112
(1976), and Brady v. Maryland, 373 U. S.
, 373 U. S. 87
(1963), which suggest that the constitutional obligation to
disclose material evidence is not measured simply by the moral
culpability of the prosecutor, and that relief is ordinarily
appropriate only when the defendant was prejudiced by the
prosecutor's actions. [Footnote
] Even if the majority is correct in holding that prejudice
is also required where the prosecutor fails to disclose information
suggesting that a juror might be biased, I think it clear that
respondent was prejudiced here. If the fact that Smith had applied
for a job had been promptly disclosed, respondent's jury trial
right could have been protected.
If disclosure had been made during trial, the parties might
simply have agreed that Smith should be replaced with one of
Page 455 U. S. 242
the alternates. Such an agreement was reached with respect to
juror Bethel. The trial judge might also have exercised his power
under N.Y.Crim.Proc.Law § 270.35 (McKinney 1971), which provides
"[i]f at any time after the trial jury has been sworn and before
its rendition of a verdict the court is satisfied, from facts
unknown at the time of the selection of the jury, that a juror is
grossly unqualified to serve . . . or that a juror has engaged in
misconduct of a substantial nature . . . , the court may, if an
alternative juror . . . is available for service, discharge such
trial juror and order that he be replaced. [Footnote 2/23
Both of these simple remedies would have eliminated the
possibility of juror bias.
At the very least, as the trial judge himself stated, if
disclosure had been made during trial, he would have conducted a
hearing to determine whether Smith had engaged in misconduct or
whether he was actually biased. As I have already suggested, I have
serious doubts whether an evidentiary hearing of this nature could
ever be reliable. However, a hearing during trial is far more
likely to reveal evidence of bias than a post-trial hearing. The
pressures on a juror in Smith's position would be much less
substantial. After trial, he would have to admit that he had been
unable to obey his oath as a juror, and that he had been unfair in
evaluating the evidence. During trial, on the other hand, he would
only have to state that his pending application for a job with the
prosecutor's office might affect his ability to weigh the evidence
Just as important, the pressures on the judge are much less
substantial where the hearing is held during the course of a trial.
During trial, if the judge finds that a juror is biased, he can
simply replace the juror with an alternate.
Page 455 U. S. 243
After trial, if actual bias is found, the only remedy is to set
aside the conviction and begin a new trial. Any judge would
hesitate before taking such action. The pressures must have been
particularly great in this case. Respondent was first tried in
1972. When the jury was unable to reach a verdict, a mistrial was
declared. Respondent's second trial did not begin until two years
later. The second trial lasted nine weeks, and 44 witnesses were
called to testify. Under these circumstances, where a third trial
would have led to even more expense and delay, a judge would be
reluctant to set aside the conviction.
In short, if the prosecutors had not withheld the information
about Smith's job application, it is quite likely that Smith would
have been excused and replaced with an alternate. If a replacement
had been made, the substantial danger of juror bias would have been
eliminated. Thus, under the circumstances, respondent was
prejudiced by the prosecutors' misconduct. Given the existence of
this prejudice, and the fundamental importance of the right to an
impartial jury, I would set aside the conviction.
The limited power of federal courts in habeas corpus proceedings
poses no obstacle to this conclusion. Although the trial judge
found during a post-trial hearing that Smith was not actually
biased, deference to state court factfinding is not required where
the evidentiary hearing on which the fact finding is based is
inherently unreliable. See supra
at 455 U. S.
-239. The prosecutors' misconduct in this case
deprived respondent of a hearing during trial, and of the
opportunity to substitute an alternate juror. Where the
prosecutors' conduct acted to deprive respondent of this
alternative, the State cannot, consistent with due process,
relegate respondent's right to an impartial jury to a belated,
inadequate post-trial hearing.
Page 455 U. S. 244
The majority adopts a completely unrealistic view of the
efficacy of a post-trial hearing, and thus fails to accord any
meaningful protection to the right to an impartial jury, one of the
most valuable rights possessed by criminal defendants. I would
affirm the judgment of the Court of Appeals on the ground that a
juror who applies for employment with the office of the prosecutor
and vigorously pursues that employment throughout the course of the
trial is impliedly biased. I would also affirm on the alternative
ground that the prosecutors improperly failed to disclose during
trial that the juror applied for a job, thereby prejudicing
respondent by depriving him of the opportunity to substitute an
unbiased alternate juror.
The majority concedes that due process means an unbiased jury,
"capable and willing to decide the case solely on the evidence."
at 455 U. S. 217
All respondent has asked for is the opportunity to be tried by such
a jury. If the prosecutors had taken the simple step of informing
the trial judge that Smith had applied for employment with their
office, Smith could have been replaced, and respondent would have
received an opportunity to be tried by an impartial jury. Because
the prosecutors intentionally failed to do so, however, a juror who
was almost certainly prejudiced against respondent participated in
the deliberations. If due process really does mean a full and fair
opportunity to be tried by an unbiased jury, "capable and willing
to decide the case solely on the evidence" -- then in this case,
due process has been denied.
In Irvin v. Dowd,
the Court stated:
"In essence, the right to jury trial guarantees to the
criminally accused a fair trial by a panel of impartial,
'indifferent' jurors. The failure to accord an accused a fair
hearing violates even the minimal standards of due process. In
re Oliver, 333 U. S. 257
; Tumey v.
Ohio, 273 U. S. 510
. 'A fair trial in
a fair tribunal is a basic requirement of due process.' In re
Murchison, 349 U. S. 133
, 349 U. S.
. In the ultimate analysis, only the jury can strip a
man of his liberty or his life. In the language of Lord Coke, a
juror must be as 'indifferent as he stands unsworne.' Co.Litt.
155b. His verdict must be based upon the evidence developed at the
trial. Cf. Thompson v. City of Louisville, 362 U. S.
. This is true regardless of the heinousness of the
crime charged, the apparent guilt of the offender, or the station
in life which he occupies."
366 U.S. at 366 U. S.
In Peters v. Kiff,
the opinion announcing the judgment
of the Court stated that such procedures were unacceptable even
when there is no proof of actual bias. 407 U.S. at 407 U. S. 504
(MARSHALL, J., joined by Douglas and Stewart, JJ.). The opinion
explained that actual bias is virtually impossible to prove.
Thus, it is necessary to "decide on principle which
side shall suffer the consequences of unavoidable uncertainty."
Given the great potential for harm and the
importance of the right to an impartial jury, doubts should be
resolved in favor of the defendant. Ibid.
See also Ballard v. United States, 329 U.
In Taylor v. Louisiana,
the Court stated that "a
flavor, a distinct quality, is lost if either sex is excluded,'"
"'exclusion of one may indeed make the jury less representative
of the community than would be true if an economic or racial group
419 U.S. at 419 U. S. 532
(quoting Ballard v. United States, supra,
at 329 U. S.
The majority notes that, during voir dire,
chose not to challenge Smith, even though he had stated that he had
a strong interest in a law enforcement career. Ante
455 U. S.
-213, n. 4. However, since the defendant was himself
a law enforcement officer, such an interest would not necessarily
have been unfavorable to the defense. I think it clear that a
general career interest in law enforcement is very different from
an application for a job with the prosecutor in a particular
If Smith were found to have engaged in a course of conscious
misconduct, he might have been prosecuted under N.Y.Penal Law §
195.05 (obstructing governmental administration); § 215.20 (bribe
receiving by a juror); or § 215.20 (misconduct by a juror)
(McKinney 1975). He might also have been found guilty of criminal
The petitioner emphasizes that, during the evidentiary hearing,
the trial judge had an opportunity to observe the juror's demeanor.
Thus, argues the petitioner, even where the juror denies that he
was biased, the trial judge will be able to measure the juror's
integrity, and decide whether to credit his claim that he fairly
weighed the evidence. It may be true that the opportunity to
observe the juror will be of assistance in some cases. However, it
will be of little value where the juror honestly but falsely
believes that he was impartial.
Although the concurring opinion would not use an implied bias
rule in this case, it agrees that, in some circumstances, such a
rule is appropriate. It suggests, for example, that a finding of
implied bias might be justified where "the juror is an actual
employee of the prosecuting agency." Ante
at 455 U. S. 222
In my view, it is impossible to draw meaningful distinction between
a juror who is an actual employee of the prosecuting agency and a
juror who has applied for employment with that agency. Indeed,
there may be a greater danger of bias where the juror is pursuing a
job. An individual who has not yet obtained employment and who
believes that his job prospects are at stake may be very anxious to
In United States v. Wood, 299 U.
(1936), the Court described the common law
regarding challenges to prospective jurors as follows:
"Challenges at common law were to the array, that is, with
respect to the constitution of the panel, or to the polls, for
disqualification of a juror. Challenges to the polls were either
'principal' or 'to the favor,' the former being upon grounds of
absolute disqualification, the latter for actual bias."
at 299 U. S.
-135. See also
3 W. Blackstone, Commentaries
480-481 (W. Hammond ed. 1890).
Cal.Penal Code Ann. § 1074 (West Supp.1981);
Idaho Code § 19-2020 (1979); Minn.Rule Crim.Proc. 26.02(5);
N.Y.Crim.Proc.Law § 270.20(1) (McKinney 1971); N.D.Cent.Code §
29-176 (Supp.1981); Okla.Stat., Tit. 22, § 660 (1971);
Ore.Rev.Stat. § 136.220 (1979); S.D.Comp.Laws Ann. § 23A-20-13
(1979); Utah Code Ann. § 775-18(e) (1980).
At the time of voir dire,
Smith had not yet applied for
a job with the office of the District Attorney. It seems likely,
however, that, if he had filed an application at this point, and
this fact came to light during voir dire,
he would have
been automatically disqualified pursuant to N.Y.Crim.Proc.Law §
270.20(1)(c) (McKinney 1971).
See, e.g., State v. West,
157 W.Va. 209, 210, 200 S.E.2d
, 861 (1973) (reversible error where trial court denies
challenge for cause to juror who is employee of prosecutorial
agency); State v. Kokoszka,
123 Conn. 161, 163, 193 A.
210, 211 (1937); State v. Howard,
17 N.H. 171 (1845),
overruled on other grounds, Shulinsky v. Boston & M. R.
83 N.H. 86, 89, 139 A. 189, 191 (1927).
Cf. Block v. State,
100 Ind. 357 (1885) (juror who is
deputy prosecutor should be disqualified); Barnes v.
263 Ind. 320, 330 N.E.2d
(1975) (juror whose relative is a member of the
prosecutor's staff should be disqualified).
A decision to endorse rules of implied bias would not lead to
the constitutionalization of a wide variety of state
disqualification rules. As I stated above, I believe that an
implied bias rule is constitutionally mandated only when the
probability of bias is particularly great, and when an evidentiary
hearing is particularly unlikely to reveal that bias. Measured
against this standard, many state rules would not be
It further relies on this Court's decision in Chandler v.
Florida, 449 U. S. 560
(1981), which held that the appropriate safeguard against the
possibility that news coverage of a defendant's trial influenced
the jurors is the defendant's opportunity to show that the coverage
compromised the ability of the jury to adjudicate fairly. However,
that case certainly does not hold that automatic disqualification
rules would never be appropriate.
United States v. Wood
upheld the constitutionality of a
District of Columbia statute that permitted Federal Government
employees to serve on juries in which the United States was a
party. Dennis v. United States
ruled that Government
employees need not be excused from serving as jurors in the
prosecution of the General Secretary of the Communist Party, U.S.A.
Frazier v. United States
refused to uphold a challenge to
a jury that consisted entirely of Government employees.
There is language in each of the three opinions that might be
interpreted to suggest that a hearing to determine actual bias will
always be a sufficient remedy. See, e.g., Dennis v. United
339 U.S. at 339 U. S.
-172 ("[p]reservation of the opportunity to prove
actual bias is a guarantee of a defendant's right to an impartial
jury"); Frazier v. United States,
335 U.S. at 335 U. S. 510
(in ordinary circumstances jurors are subject to challenge only for
"actual bias"); United States v. Wood,
299 U.S. at
299 U. S. 150
(courts should conduct full inquiry into "actual bias" where
circumstances suggest such inquiry is appropriate). In these cases,
however, the Court regarded "actual bias" as including
"not only prejudice in the subjective sense, but also such as
might be thought implicitly to arise 'in view of the nature or
circumstances of his employment, or of the relation of the
particular governmental activity to the matters involved in the
prosecution, or otherwise.'"
Frazier v. United States, supra,
at 335 U. S.
-511, n.19 (quoting United States v. Wood,
at 299 U. S.
Cf. Tumey v. Ohio, 273 U. S. 510
273 U. S. 532
(1927) (judge with financial interest in outcome is disqualified
from hearing case, even though he might not actually have been
affected by financial interest, because average man in that
position would be subject to "possible temptation . . . not to hold
the balance nice, clear and true between the State and the
accused"); In re Murchison, 349 U.
(1955) (judge may not conduct grand jury inquiry
and then adjudicate charges against defendant because his
impartiality might reasonably be questioned); Peters v.
Kiff, 407 U. S. 493
(1972) (opinion of MARSHALL, J., joined by Douglas and Stewart,
JJ.) (possibility that jury selection procedures that exclude
Negroes might result in bias against defendant is sufficient to
justify invalidation of those procedures); see also
fn2/2|>n. 2, supra.
It is relevant to note that, if a judge had an application
pending with a litigant while he was trying a case, he would be
presumed biased, no matter how vigorously he protested that he was
actually impartial. See Tumey, supra; Murchison,
A number of lower federal courts have also suggested that
implied bias rules may be appropriate in some circumstances.
See, e.g., McCoy v. Goldston,
652 F.2d 654 (CA6 1981)
(bias should be implied and new trial granted where juror conceals
information that would have resulted in disqualification for
cause); United States v. Allsup,
566 F.2d 68, 71-72 (CA9
1977) (new trial should be granted in robbery trial where two of
jurors worked for bank that had been robbed); Deschenes v.
224 F.2d 688 (CA10 1955) (dictum) (in some
circumstances, prejudice must be presumed, and court, as matter of
law, must grant a new trial); Caveness v. United States, 187
F.2d 719 (CA5 1951) (dictum) (same).
See also United States v.
Kyle, 152 U.S.App.D.C. 141, 145, 469 F.2d 547, 551 (1972) (Bazelon,
J., dissenting) (defendant claims that juror who had been
castigated by judge when serving as a juror in another trial would
be prejudiced against him: "[a] Procrustean demand for a showing of
prejudice is ill-suited to a case where the very integrity of the
judicial process is at stake and where the inability to demonstrate
prejudice offers little assurance that prejudice did not exist"),
409 U.S. 1117 (1973). But see United
States v. Brown,
644 F.2d 101, 104-106 (CA2 1981) (court
refuses to "create a set of unreasonably constricting
presumptions that jurors be excused for cause due to certain
occupational or other special relationships which might bear
directly or indirectly on the circumstances of a given case where .
. . there is no showing of actual bias or prejudice'") (quoting
Mikus v. United States, 433 F.2d 719, 724 (CA2
Almost 200 years ago, in United States v. Burr,
Fed.Cas. 49, 50 (No. 14,692g) (CC Va. 1807), Chief Justice Marshall
indicated that he believed implied bias rules were appropriate in
some circumstances. A person
"may declare that he feels no prejudice in the case; and yet the
law cautiously incapacitates him from serving on the jury because
it supposes prejudice, because, in general, persons in a similar
situation would feel prejudice"
The state trial judge, the District Court, and the Court of
Appeals all condemned the prosecuting attorneys' conduct. The trial
judge stated that the failure to inform the court and defense
counsel of Smith's application as "a serious error in judgment,"
People v. Phillips,
87 Misc.2d 613, 628, 384 N.Y.S.2d 906,
916 (1975), and "unique misjudgment." Id..
at 631, 384
N.Y.S.2d at 918. See also 485
F. Supp. 1365
, 1369-1370 (SDNY 1980); 632 F.2d 1019, 1023 (CA2
The majority also points out that federal courts do not have
supervisory power over state courts, and that, as a result, habeas
corpus review of a state court conviction based on prosecutorial
misconduct must focus on possible due process violations. See
Donnelly v. DeChristoforo, 416 U. S. 637
416 U. S. 642
Depending on the nature of the prosecutor's misconduct, the
prejudice requirement may be easily satisfied. If the prosecutor
knowingly presents perjured testimony, the conviction must be set
aside if there is any reasonable likelihood that the false
testimony could have affected the judgment of the jury. United
States v. Agurs,
427 U.S. at 427 U. S.
-104. After all, presentation of perjured testimony
is "a corruption of the truthseeking function of the trial
at 427 U. S. 104
Where the prosecutor fails to comply with a request for specific
evidence, and if there is a substantial basis for claiming that the
evidence was material, the failure to disclose is rarely excused.
Brady v. Maryland,
373 U.S. at 373 U. S. 87
The defendant faces a substantial burden only if the prosecutor
fails to disclose material evidence, when no specific request for
the evidence was ever made. In this circumstance, the verdict may
be set aside if the evidence creates a reasonable doubt that did
not otherwise exist. United States v. Agurs, supra,
427 U. S.
The failure to disclose possible juror bias can be analogized to
a prosecutor's knowing use of perjured testimony. Both forms of
prosecutorial misconduct result in corruption of the truth-seeking
function of the trial process. See United States v. Agurs,
at 427 U. S. 105
see also 455
fn2/20|>n. 20, supra.
Thus, in this context
also, the conviction should be set aside if there is any reasonable
likelihood that the material omission could have affected the
judgment of the jury. See
427 U.S. at 427 U. S.
fn2/20|>n. 20, supra.
Here, clearly, such a
reasonable likelihood does exist.