DOJ-OGR-00021768.pdf

Case 22-1426, Document 87, 07/27/2023, 3548202, Page26 of 35 "[T]he defense deserves 'a full and fair opportunity to expose bias or prejudice on the part of veniremen.'" United States v. Colombo, 869 F2d 149, 151 (2d Cir. 1989) quoting Barnes 604 F2d at 139. Nieves at 632. Nieves stands for the proposition that there must be sufficient fact finding to allow for facts probative of the three forms of bias to reveal themselves. Otherwise, a violation of fundamental fairness arises if the voir dire is not adequate to identify unqualified jurors. Here, the inquiry by the Court at the post-verdict hearing failed to provide a full and fair opportunity to expose bias. While it need not give the defense lawyers the opportunity to question the juror, it must fulfill its constitutional duty to eliciting sufficient information to allow a determination of whether a challenge to the juror for cause should be made. U.S. v. Greer, 285 F.3d 158, (2d Cir. 2002) set out the types of bias that produce proper cause challenges. Cause challenges are generally based on one of three species of bias: (1) actual bias, or "bias in fact"; (2) implied bias, or bias that is "presumed as a matter of law" where a typical person in the juror's position would be biased, irrespective of whether actual bias exists; and (3) inferable bias, which arises "when a juror discloses a fact that bespeaks a risk of partiality sufficiently significant to warrant granting the trial judge discretion to excuse the juror for cause, but not so great as to make mandatory a presumption of bias." 285 F.3d at 171-172. 20 DOJ-OGR-00021768