DOJ-OGR-00009729.pdf

--- Page 1 --- **Case 1:20-cr-00330-PAE** **Document 642** **Filed 03/11/22** **Page 37 of 66** **Challenges for cause can be based on implied bias, inferable bias, or actual bias.** **See Torres, 128 F.3d at 43; see also Sampson, 820 F. Supp. 2d at 162–67 (discussing at length each type of bias).** **1. Implied bias** "Implied or presumed bias is 'bias conclusively presumed as a matter of law.'" Torres, 128 F.3d at 45 (quoting Wood, 299 U.S. at 133). "It is attributed to a prospective juror regardless of actual partiality." Id. "In contrast to the inquiry for actual bias, which focuses on whether the record at voir dire supports a finding that the juror was in fact partial, the issue for implied bias is whether an average person in the position of the juror in controversy would be prejudiced." Id. (citing Haynes, 398 F.2d at 984). "And in determining whether a prospective juror is impliedly biased, 'his statements upon voir dire [about his ability to be impartial] are totally irrelevant." Id. (quoting Haynes, 398 F.2d at 984). As is relevant here, there are two ways in which courts imply bias. First, "[c]ourts imply bias 'when there are similarities between the personal experiences of the juror and the issues being litigated.'" Daugerdas, 867 F. Supp. 2d at 472 (quoting Sampson, 820 F. Supp. 2d at 163–64); see also Skaggs v. Otis Elevator Co., 164 F.3d 511, 517 (10th Cir. 1998) (collecting cases where bias was implied based on the juror's experiences); see, e.g., Hunley v. Godinez, 975 F.2d 316, 319–20 (7th Cir. 1992) (holding, in a case charging murder in the course of a burglary, that bias should be implied where two jurors were the victims of similar burglaries during deliberations); Burton v. Johnson, 948 F.2d 1150, 1159 (10th Cir. 1991) (holding, in murder case in which the defendant presented a [defendant's] statement that he had been previously convicted of a crime, that bias should be implied where the defendant presented a [statement] that he had been previously convicted of a crime). **DOJ-OGR-00009729**