In Lemaster v. Com., an unpublished 4/21/11 decision by the Kentucky Supreme Court, the Court granted a new trial for failure to strike a juror who said she would require the defendant to present evidence of his innocence. More interesting is the fact that the Lemaster Court ducked a second juror challenge, where it was argued the juror's answers were "equivocal." And in another case decided by the Court on 4/21/11 the Court glossed over another challenge to an “equivocal” juror, when they could have squarely denied it.
Trial attorneys should be moving to strike all equivocal jurors who say, merely, "I hope I could be fair" or "I think I could be fair" or "I'll try my best to be fair." It appears the Kentucky Supreme Court might be open to considering the issue if properly preserved. Cf., Burnett v. Com., 2008 WL 746615, 4 (Ky. 2008) (Unpublished), in which the Kentucky Supreme Court analyzes the nature of equivocal responses in the context of a request for counsel, and held that ambiguous, equivocal words like “I don’t know,” and “I’m not really with the laws and stuff” cannot constitute a legally effective request for counsel.
Contributed by Susan Balliett
