Note
Juror Misconduct During Federal Jury Selection
Possibly: in United States v. French, the First Circuit ordered a hearing into a juror who left out her son's drug convictions, even two years after trial.
If a juror lied or left out key facts during jury selection, you may be able to get a new trial after a conviction. The Supreme Court set the test in McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984). United States v. French, No. 16-2386 (1st Cir. 2018), shows how that test plays out when the omitted facts come to light years later.
The McDonough standard
To get a new trial based on a juror's dishonest answers during voir dire, the defense generally must show two things under McDonough:
- A juror failed to answer honestly a material question on voir dire; and
- A correct response would have provided a valid basis for a challenge for cause.
Dishonesty is not the same as a simple mistake. Courts look at whether the juror deliberately hid something, how important the omitted fact was, and whether an honest answer would have let the defense (or the court) remove that juror for cause. Bias can also be shown other ways — for example, with evidence that a juror was actually biased even if the questionnaire answers were not clearly false — but McDonough is the usual starting point when the claim rests on a questionnaire or voir dire answer.
What the juror left out in French
Malcolm French and Rodney Russell were convicted in Maine of charges tied to a large marijuana-growing operation on land French owned. After sentencing, the defense learned that one juror may have hidden important facts.
The tip came from jail: another prisoner told a co-defendant that one of the jurors was the mother of a well-known marijuana and cocaine dealer. Her son had two drug convictions and had served time. She had paid his legal fees and visited him in jail.
The defense went back to her jury questionnaire. One question asked whether she or a family member had ever been involved in a legal matter as a plaintiff, defendant, witness, or victim. Follow-ups asked whether she was satisfied with the outcome and, if not, why.
She answered "n/a" to the first question and left the follow-ups blank. She also left the rest of that page blank and said nothing when the magistrate judge asked questions during jury selection. To the defense, the missing information mattered for spotting possible bias — both her family's history with the criminal justice system and any hostility toward defendants charged with growing the same drug her son was convicted of dealing.
The motion for a new trial
The defense moved for a new trial for both defendants. They argued that honest answers would have given them grounds to challenge the juror. The government did not deny she left out the information, but it opposed a hearing because the trial was over.
The district court denied the motion without a full hearing. It treated the omission as a mistake, not dishonesty, and found the defense could not show honest answers would have supported a valid challenge. It also noted that about two years had passed since trial.
What the First Circuit held
The First Circuit held the district court's inquiry was not enough. It vacated the denial and sent the case back for an evidentiary hearing on why the juror answered as she did and whether she was biased.
The court rejected the government's argument that the defense should have spotted the blank answers during jury selection and had no good reason to wait two years. It also said problems caused by the passage of time should cut against the government, not the defense. The court did not order a new trial outright; the district court had to decide that after the hearing.
Deadlines and practical steps
Under Federal Rule of Criminal Procedure 33(b):
- A motion for a new trial based on newly discovered evidence must be filed within three years after the verdict or finding of guilty.
- A motion on other grounds must be filed within 14 days after the verdict or finding of guilty.
If you learn after trial that a juror may have hidden something, tell your lawyer right away. Do not contact the juror yourself — many federal courts limit post-trial contact with jurors. Let counsel decide how to investigate and whether a Rule 33 motion makes sense.
If you think juror misconduct affected your federal conviction, Request a consultation and bring what you know about the questionnaire, the tip, and the timeline.