State v. Williams , 427 P.3d 434 ( 2018 )

2018 UT App 96THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
BRIAN K. WILLIAMS,
Appellant.
Opinion
No. 20160625-CA
Filed May 24, 2018
First District Court, Logan Department
The Honorable Kevin K. Allen
No. 141100362
Elizabeth Hunt, Attorney for Appellant
Sean D. Reyes and Aaron G. Murphy, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES KATE A. TOOMEY and DIANA HAGEN concurred.
MORTENSEN, Judge:
¶1 Although he testified that the events underlying this case
never happened, a jury convicted Defendant Brian K. Williams
of sexually abusing his three daughters. After Defendant was
convicted, the district court sentenced him to multiple prison
terms, several of which are potentially for the remainder of his
life. Because we conclude that irregularities occurred in the
State’s juror examination, 1 we reverse his convictions and
remand for a new trial.
1. Juror examination is often referred to as “voir dire.” Because
both terms describe the same “tool for counsel and the court to
(continued…)
State v. Williams
BACKGROUND
¶2 Defendant’s three daughters, Oldest, Middle, and
Youngest, accused Defendant of sexually abusing them
repeatedly over a five-year period. During this time, the alleged
abuse included, but was not limited to, touching his daughters’
breasts and pubic areas; showering with them; and on one
occasion, forcing his daughters to undress and smear body paint
on each other as Defendant watched.
¶3 The State charged Defendant with six counts of
aggravated sexual abuse of a child and six counts of forcible
sexual abuse. During juror examination, the trial court asked
potential jurors about their personal and professional lives
before allowing counsel for the State and Defendant to conduct
additional juror examination. 2
¶4 During trial, the jury heard testimony from Defendant’s
daughters, who detailed the abuse. 3 The jury also heard
(…continued)
carefully and skillfully determine, by inquiry, whether biases
and prejudices, latent as well as acknowledged, will interfere
with a fair trial if a particular juror serves in it,” see State v. Ball,
685 P.2d 1055, 1058 (Utah 1984), we use the terms
interchangeably.
2. The specific content of the State’s juror examination is set forth
in more detail below. Infra ¶¶ 15–23.
3. As we explain, infra ¶¶ 5–8, some of the daughters’ trial
testimony conflicted with their testimony at the preliminary
hearing. Other pieces of information were contradicted at trial.
“In reviewing a jury verdict, we view the evidence . . . in a light
most favorable to the verdict.” State v. Maestas, 2012 UT 46, ¶ 36,
299 P.3d 892 (cleaned up). However, we also present conflicting
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20160625-CA 2 2018 UT App 96State v. Williams
testimony regarding the daughters’ difficulties in school, their
depression, Oldest’s habit of cutting herself, and Oldest and
Middle’s joint overdose on antidepressants and subsequent
hospitalizations. The State’s expert testified that these behaviors
were consistent with symptoms exhibited by sexual abuse
victims.
¶5 Oldest’s trial testimony conflicted with her testimony at
Defendant’s preliminary hearing in some respects. She initially
testified that Defendant showered with her once or twice a
month before the family moved, but at trial she said it happened
only once, total, in the family’s first house. At the preliminary
hearing, she testified that she could not recall Defendant
touching her in the shower, but at trial she said he “cupped” her
breasts and buttocks and washed her body. Oldest testified at
the preliminary hearing that Defendant touched her breasts and
vaginal area five to ten times at the first house; but at trial she
could not recall him touching any of her body parts at the first
house. Shortly after her assertion at trial that Defendant had not
touched her in the first house, she testified regarding an incident
in the first house during which Defendant had touched her
inappropriately while wrestling.
¶6 Middle originally testified at length at the preliminary
hearing about Defendant’s abuse of her sisters, but later
admitted at trial that she had never seen him inappropriately
touching Oldest or Youngest. When Middle initially reported
Defendant’s abuse, she denied that he had ever inserted his
finger into her vagina. But at trial, she testified that he did so on
multiple occasions, explaining that she originally denied this
behavior because she wanted to minimize the trouble Defendant
would be in.
(…continued)
evidence where it is necessary to understand the issues raised on
appeal. See State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346.
20160625-CA 3 2018 UT App 96State v. Williams
¶7 Youngest’s testimony that Defendant left “white gooey
stuff” on her legs after a back rub was a detail reported for the
first time at trial. Youngest explained that she only recalled that
fact as she was testifying. At trial, on cross-examination,
Youngest frequently answered that she could not recall the
information she was asked to provide.
¶8 All three daughters’ stories regarding the body-painting
incident differed from one another. Oldest testified that she and
Middle had been painting a picture when the sisters started
painting each other. Defendant then instructed them to remove
their clothing, and he stripped down to his underwear, before
they all painted one another. When she was asked about this
incident at the preliminary hearing, she denied that it occurred;
only at trial did she allege that it took place. Middle testified that
Defendant had told them he ordered the paints online. When he
produced them, they all removed their clothes and started
painting each other. Youngest also testified that Defendant
bought the paints online and explained that he made them
remove their clothing. Middle and Youngest testified that after
they painted each other, all four showered together. Oldest
made no such claim.
¶9 Defendant testified in his own defense and denied
sexually abusing any of his daughters. The jury convicted
Defendant as charged. He now appeals.
ISSUES AND STANDARDS OF REVIEW
¶10 Defendant argues that we should reverse his convictions
for any one of five reasons. First, he asserts that the jury
instructions given at trial were inadequate. Second, he asserts
that during the State’s closing argument, the prosecutor engaged
in misconduct by (1) impermissibly bringing to the jury’s
attention facts not in evidence, (2) arguing that Defendant lied,
(3) disparaging the integrity of defense counsel, and (4)
appealing to the jury’s fears by seeking a verdict to protect
20160625-CA 4 2018 UT App 96State v. Williams
society. Third, he asserts that the State violated rule 608 of the
Utah Rules of Evidence by improperly bolstering the credibility
of its witnesses. Fourth, he asserts that the State offered
inadmissible evidence of his invocation of his right to counsel.
And fifth, he asserts that during his testimony, he was
improperly asked to opine on the veracity of other witnesses.
¶11 Defendant did not raise any of these arguments before the
trial court. Instead, he brings his claims under the doctrines of
ineffective assistance of counsel and plain error. To demonstrate
ineffective assistance of counsel, Defendant must:
(i) identify specific acts or omissions by counsel
that fall below the standard of reasonable
professional assistance when considered at the
time of the act or omission and under all the
attendant circumstances, and (ii) demonstrate that
counsel’s error prejudiced the defendant, i.e., that
but for the error, there is a reasonable probability
that the verdict would have been more favorable to
the defendant.
State v. Dunn, 850 P.2d 1201, 1225 (Utah 1993). To demonstrate
plain error, Defendant
must show the following: (i) An error exists; (ii) the
error should have been obvious to the trial court;
and (iii) the error is harmful, i.e., absent the error,
there is a reasonable likelihood of a more favorable
outcome for the appellant, or phrased differently,
our confidence in the verdict is undermined.
Id. at 1208–09.
ANALYSIS
¶12 Although Defendant raises many potential grounds for
reversing his convictions, we are persuaded by his arguments
20160625-CA 5 2018 UT App 96State v. Williams
regarding the irregularities and impropriety that occurred
during juror examination. 4 Because we reverse on that ground
and remand for a new trial, we need not consider the other
issues raised. See State v. Holm, 2017 UT App 148, ¶ 8 n.2, 402
P.3d 193.
¶13 While the issue of determining when a juror examination
has crossed the line into impermissible indoctrination is one of
first impression, the true purpose of juror examination is well
settled in our jurisprudence: to “determine, by inquiry, whether
biases and prejudices, latent as well as acknowledged, will
interfere with a fair trial if a particular juror serves in it.” Salt
Lake City v. Tuero, 745 P.2d 1281, 1283 (Utah Ct. App. 1987)
(cleaned up). But the privacy interests of prospective jurors
“must be balanced against the historic values . . . and the need
for openness of the process.” Press-Enterprise Co. v. Superior Court
of California, 464 U.S. 501, 512 (1984).
To preserve fairness and at the same time protect
legitimate privacy, a trial judge must at all times
maintain control of the process of jury selection
and should inform the array of prospective jurors,
once the general nature of sensitive questions is
made known to them, that those individuals
believing public questioning will prove damaging
because of embarrassment, may properly request
an opportunity to present the problem to the
judge in camera but with counsel present and on the
record.
4. Defendant argues that the State used the voir dire process to
improperly bolster the credibility of his daughters’ testimony.
Utah jurisprudence has long held that witnesses may not be
bolstered by improper means. See State v. Adams, 955 P.2d 781,
786 (Utah Ct. App. 1998).
20160625-CA 6 2018 UT App 96State v. Williams
Id. 5 In determining whether the trial court properly balanced the
privacy interests of the jurors with Defendant’s constitutional
right to present the case before an impartial jury, we review the
court’s decision for plain error. 6
5. Other jurisdictions have held similarly. See People v. Knight,
2013 IL App (4th) 111127-U, ¶ 45 (holding that at a minimum,
the court’s responsibility includes “not permitting (1) courtroom
proceedings to embarrass them and (2) trial court participants to
engage in offensive conduct”); State v. Roby, 2017 ME 207, ¶ 12,
171 A.3d 1157 (“In order to select a qualified and impartial jury,
the trial court has considerable discretion over the conduct and
scope of juror voir dire, because it is the trial court that has the
responsibility of balancing the competing considerations of
fairness to the defendant, judicial economy, and avoidance
of embarrassment to potential jurors.” (cleaned up)); People v.
Mulroy, 439 N.Y.S.2d 61, 65 (N.Y. Sup. Ct. 1979) (“[In
conducting voir dire] . . . this court conceives that it has the
highest obligation, first, to the prospective juror that, if sworn, he
may serve with a free mind, unfettered by personal discomfiture,
embarrassment or subconscious restraint and, second, to all who
stand before the bar of justice, to assure that such juror will be
ultimately able to make his determination fairly and impartially,
without fear, favor or sympathy.”).
6. We would reach the same result if we instead reviewed
Defendant’s claim that his trial counsel was ineffective for failing
to object to the juror examination process. This is because the
same error that should have been plain to the trial court should
have alerted trial counsel to act. There was no strategic reason
not to object, and in choosing not to, trial counsel’s performance
fell below an objective standard of reasonableness. Likewise,
where we conclude that Defendant was harmed by the trial
court’s failure to intervene, we would conclude that trial
counsel’s performance prejudiced Defendant. Cf. State v. Bruun,
2017 UT App 182, ¶ 79, 405 P.3d 905 (explaining that “the
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20160625-CA 7 2018 UT App 96State v. Williams
¶14 Defendant argues that “the prosecution began its
campaign to bolster the alleged victims at the outset of the jury
selection.” After reviewing the transcript of juror examination,
we agree. We conclude that an error occurred and that the error
should have been obvious to the trial court. Because Defendant’s
challenge is best understood by experiencing the flow of the
State’s juror examination in its odd entirety, we quote at length
from it. Any emphasis is our own.
¶15 The prosecutor began by sharing, “My experience has
been that jurors want to do a good job. They want to do a good
job. They just want to make sure they understand all the
evidence, and they want to do a good job.” She then assured the
prospective jurors, “So as I talk to you right now, just
understand there are not right or wrong answers. I’m just trying
to find out how you view life, how you view your job as a juror,
things of that nature, and maybe what your thoughts are on child sex
abuse . . . . So please feel free to raise your hand.”
¶16 After encouraging members of the venire to “just be
honest,” she initiated a discussion about child sex abuse:
[Prosecutor]: How do you know children are
sometimes sexually abused?
....
[Prospective Juror]: Well, I can think of three
friends that have either had someone in their
family sexually abused or themselves.
[Prosecutor]: Were these close friends?
[Prospective Juror]: Well, they’re friends. I—
(…continued)
prejudice standard under ineffective assistance of counsel and
plain error is the same”).
20160625-CA 8 2018 UT App 96State v. Williams
[Prosecutor]: Friends, okay. That you’re aware—
[Prospective Juror]: They’re not my closest friends.
[Prosecutor]: Yeah, but you—they shared with you
the fact that they’ve had children in their family abused
and so on and so forth. So how is it that society sort
of proves or becomes aware of child sex abuse?
Prospective jurors provided answers, such as, “Well, the person
that has done that to the child has said that they did,” and “Or it
is medically proven.”
¶17 Apparently not hearing the answer she wanted, the
prosecutor continued, “So let’s say someone decides to be really
brave and say, ‘Okay, okay, okay, I’ve been touching a kid.’ That
may happen. I’ve never seen it, but—I’m only kidding. But how
else?” An inaudible response was given, and then the prosecutor
stated, without getting an answer from any member of the jury
pool, “So a child may be acting weird or they may say
something, and then an adult gets wind of that and then they
report that. Is that generally what happens? In the end, what is it
that causes it? Isn’t it that the child says . . . something is
bothering me.” 7
¶18 Next, the prosecutor asked, “So you as jurors in a case like
this, are you going to require anything more in terms of physical
evidence or other corroboration necessarily?” After receiving an
inaudible response, she began talking about “CSI or Law and
Order or Boston Legal” regarding “physical evidence” and
asserted, “I’m just going to tell you that I think you know this,
but it’s actually an important concept to realize that we are not
7. The official transcript ends this sentence with a period, rather
than a question mark. Given the declaratory tone of most of this
portion of the juror examination, we do not think that is a
mistake.
20160625-CA 9 2018 UT App 96State v. Williams
required to do CSI investigations or work. We just have to prove
beyond a reasonable doubt.” She asked, “Would any of you
require that type of evidence in order to convict someone of this
type of crime?” When she saw “some brow furrowing” she
followed up with one of the prospective jurors:
[Prosecutor]: What are you thinking up there, Ms.
[K.]?
[Ms. K.]: I’m thinking maybe so.
[Prosecutor]: Okay, maybe so. Okay, tell me about
that. That’s fine.
[Ms. K.]: I mean I don’t know that it would need to
be D—I don’t know. I’m not sure what evidence[.]
Eventually the prosecutor elicited from Ms. K. that she would
likely expect to see more evidence than solely “a child’s report in
and of itself.”
¶19 With this understanding, the prosecutor switched course
and began discussing “general rule[s]” about child sexual abuse.
She asked, “[I]s a child abused in secret or somewhere where it is
not secret?” Without pausing for an answer, she stated,
So that’s kind of a no brainer, right? Everybody
understand[s] . . . who is usually there? The
perpetrator and the child, right? Okay.
So who are the only two people in the world who
really know what really happened? Just those two. If
a child is touched, and it isn’t reported
immediately, is that something that we’re
necessarily going to have physical evidence of?
Does that mean it didn’t happen? No. Okay.
¶20 Next came a conversation about delayed reporting and
why that might occur. Some prospective jurors provided
20160625-CA 10 2018 UT App 96State v. Williams
answers—fear, guilt, and grooming. 8 When the answer
“grooming” was given, the prosecutor replied, “Grooming,
okay. Okay. Very good. Very good.”
¶21 Changing tack, the prosecutor engaged in the following
exchange:
[Prosecutor]: Now I sometimes do this, and it’s
really awful, but . . . I sometimes say—who do I
want to pick on? I wonder if you would turn to Ms.
[M.] there and—is it [M.]?
[Ms. M.]: Uh-huh.
[Prosecutor]: Okay. If you would just tell her about
the very last sexual experience you had, and if you
could be very detailed, okay? Please make sure you
don’t (inaudible) the body parts and where
everybody put everything and all of that. Would
you mind just turning and just sharing that with
her?
Meaning to use this as a demonstration of how the court system
often asks victims in child sexual abuse cases to testify as to
“some pretty embarrassing things,” she ended the inquiry
without actually requiring the venire to engage in such an
8. The definition of grooming ranges from “testing the waters”
and “breaking down boundaries so as to not get caught,” see
Benedict v. State, No. 05-15-00958-CR, 2016 WL 3742127, at *3
(Tex. App. July 7, 2016), to “less intrusive and less highly
sexualized forms of sexual touching, done for the purpose of
desensitizing the victim to future sexual contact,” see People v.
Steele, 769 N.W.2d 256, 269–70 (Mich. Ct. App. 2009). Given
varying definitions of what grooming might mean, it can
certainly be considered a loaded term and it is unclear from the
record what the prospective juror was referring to.
20160625-CA 11 2018 UT App 96State v. Williams
intimate conversation. She said, “I’m not going to ask you do
that. Why do I ask that? Why do I ask that?” And when someone
gave the answer she was looking for, she replied, “There we go.
There we go.”
¶22 The discussion shifted to the topic of changed stories and
why someone might give different accounts of the same story.
The prosecutor frequently replied to prospective jurors’ answers
by saying things like, “Yeah, exactly,” or, “That’s exactly right.”
Then she discussed with the venire whether we can “tell who
touches children by looking at them.” Receiving no answers
from individual members of the jury pool, the prosecutor
presented a string of questions, the answers to which were
implied:
Can we tell by how much money they make? Can
we tell by how old they are? Can we tell by how
they look?
What about their personality? What about if
they’re very charming? Does that tell us? Do
charming people touch children? Do you think?[ 9]
¶23 Finally, the prosecutor ended with what we consider
standard juror examination questions regarding prospective
jurors’ willingness to “sit in judgment of another person,”
whether they would feel “uneasy about having to hear about
sexual abuse,” whether anyone “just doesn’t want to be here,”
and whether there was “anything that [they could] think of that
makes [them] feel like” they should not sit on the jury.
9. This portion of the juror examination is important in light of
the State’s closing argument, when the prosecutor mirrored
these words: “[Defendant] is very charming. He’s likeable.” This
passage particularly informs our consideration of whether the
juror examination process prejudiced Defendant. See infra ¶ 38–
40.
20160625-CA 12 2018 UT App 96State v. Williams
¶24 Defendant now argues that the prosecutor’s juror
examination was “more of a Socratic lecture on why the jurors
should believe the [victims], despite and even because of the
inconsistencies in their claims.” He complains that “rather than
asking questions designed to skillfully cull [honest] attitudes
from the jurors, the prosecutor asked the panel of prospective
jurors a number of rhetorical questions designed to indoctrinate
the jurors on the State’s theor[ies]” of the case.
¶25 The State responds that the juror examination simply
involved “friendly responses to juror answers,” and suggests
that because “none of these questions or comments related to
any particular witness or testimony,” juror examination was
“merely designed to ferret out biases among the jurors that
might predispose them to disbelieve children.” For several
reasons, we cannot agree that the prosecutor’s juror examination
was as innocuous as the State asserts.
¶26 First, the prosecutor posed “hypothetical questions
closely approximating the facts of the case . . . and delivered a
lecture.” See State v. Martin, 877 N.W.2d 859, 860 (Iowa 2016)
(reviewing this and more concerning behavior in a prosecutor’s
juror examination but refusing to grant a new trial “[i]n part
because [the defendant] did not object in the district court to all
the statements he challenge[d] on appeal”). Such questions, and
the relevant fact scenarios, included:
• “If a child is touched, and it isn’t reported
immediately, is that something that we’re
necessarily going to have physical evidence of?
Does that mean it didn’t happen? No. Okay.”
Defendant’s daughters delayed reporting, and
there was no physical evidence of their abuse.
• “Do charming people touch children?” The
prosecutor later described Defendant as
“charming.”
20160625-CA 13 2018 UT App 96State v. Williams
• “So let’s say someone decides to be really brave
and say, ‘Okay, okay, okay, I’ve been touching
a kid.’ That may happen. I’ve never seen it,
but—I’m only kidding.” Defendant never
wavered on his position that he had never
touched his daughters inappropriately, and by
presenting denial as an inference of guilt during
juror examination, the prosecutor improperly
indoctrinated the jury to react favorably to the
same argument at trial.
¶27 Additionally, the prosecutor devoted much of her juror
examination to making statements and posing rhetorical
questions rather than inquiring into the prospective jurors’
thoughts and attitudes, including:
• Making proclamations about the general
pattern of sexual abuse, such as, “[I]s a child
abused in secret or somewhere where it is not
secret? So that’s kind of a no brainer, right?”
• Telling the venire its options for whom to
believe at trial. “So who are the only two people
in the world who really know what really
happened? Just those two.”
• Indicating when prospective jurors gave
answers she liked and praising them, showing
(despite her opening remarks to the contrary)
that there were indeed right and wrong
answers. “Okay. Very good. Very good.”
“There we go. There we go.” “Yeah, exactly.”
“That’s exactly right.”
¶28 Finally, in many instances, the prosecutor posed
questions without awaiting a response. “Isn’t it that the child
says . . . something is bothering me.” “Everybody
understand[s] . . . who is usually there? The perpetrator and the
child, right? Okay.” On this point, we consider persuasive a
20160625-CA 14 2018 UT App 96State v. Williams
Virginia case discussing juror examination questions posed by a
trial judge.
Proof of a prospective juror’s impartiality should
come from him and not be based on his mere
assent to persuasive suggestions. When asked by
the court, a suggestive question produces an even
more unreliable response. A juror’s desire to say
the right thing or to please the authoritative figure
of the judge, if encouraged, creates doubt about the
candor of the juror’s responses.
Bradbury v. Commonwealth, 578 S.E.2d 93, 95 (Va. Ct. App. 2003)
(cleaned up). And like the judge’s questions in Bradbury, the
prosecutor’s questions in the present case
were leading, long, and complex. They suggested
the answer that the [prosecutor] preferred to hear,
compressed several issues into one phrase, and
generally incorporated several legal concepts.
These questions constituted persuasive suggestions
more than an impartial inquiry and, as such, were
an ineffective means [of conducting voir dire].
See id. at 96 (citation omitted). 10 While jurors ordinarily might
place more weight on a judge’s comments than those of the
10. This is to say nothing of the concept of “commitment” or
“stake out” questions. See Haarhuis v. Cheek, 805 S.E.2d 720, 725
(N.C. Ct. App. 2017) (“A stake out question asks a juror to
pledge himself or herself to a future course of action by asking
what verdict the prospective juror would render, or how they
would be inclined to vote, under a given state of facts.” (cleaned
up)); Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001)
(“Commitment questions are those that commit a prospective
juror to resolve, or to refrain from resolving, an issue a certain
way after learning a particular fact.”). Some states have
(continued…)
20160625-CA 15 2018 UT App 96State v. Williams
State, the State’s representative commands similar respect, and
with that respect the same inherent danger exists that, when
improperly prompted, a juror will attempt to say the “right”
thing or otherwise please the prosecutor with certain responses.
This danger is heightened in a group setting where jurors may
be inclined to make socially acceptable responses.
¶29 The process employed by the prosecutor in this case was
not designed to find out what jurors’ thoughts or attitudes were,
but instead served as an attempt to influence the jury panel—in
effect intentionally tainting it with a bias favorable to the State’s
case. And while the prosecutor never couched her questions or
comments by reference to a specific victim, it is clear, given the
context, that the prosecutor was essentially arguing the State’s
case and inappropriately bolstering the anticipated testimony of
the alleged victims.
¶30 This is not the purpose of juror examination. See supra
¶ 13. A party is not permitted to argue a case under the auspices
of jury selection. A majority of the cases we discovered that have
ruled on this issue do not allow questions or statements that
serve to “pre-educate and indoctrinate jurors as to the [party’s]
theory of the case.” People v. Boston, 893 N.E.2d 677, 681 (Ill. App.
Ct. 2008); see also, e.g., People v. Landry, 385 P.3d 327, 354 (Cal.
(…continued)
prohibited these sorts of questions during juror examination
altogether. See, e.g., Stewart v. State, 923 A.2d 44, 54 (Md. 2007);
State v. Parks, 378 S.E.2d 785, 787 (N.C. 1989); Hyundai Motor Co.
v. Vasquez, 189 S.W.3d 743, 756 (Tex. 2006); Standefer, 59 S.W.3d at
183. And while we have encountered no Utah case addressing
these sorts of questions, we note that the prosecutor’s juror
examination included questions that may offend the standards
of those other states. See supra ¶ 18 (“[A]re you going to require
anything more in terms of physical evidence or other
corroboration necessarily?”; “Would any of you require that type
of evidence in order to convict someone of this type of crime?”).
20160625-CA 16 2018 UT App 96State v. Williams
2016) (holding that it is not the purpose of juror examination to
educate, compel, prejudice, indoctrinate, or instruct the jury);
Preston v. State, 306 A.2d 712, 715 (Del. 1973) (“Too often we see
the [v]oir dire process being misused to argue the case, to
indoctrinate the jury, and to seek other undue advantage.”);
People v. Bell, 505 N.E.2d 365, 373 (Ill. App. Ct. 1987) (reversing
where a juror examination “went beyond a probe for bias and
sought to educate the jury and convert the panel to [the
prosecutor’s] beliefs” and other grounds); Coy v. State, 720
N.E.2d 370, 372 (Ind. 1999) (holding a party’s “attempt to
indoctrinate the jury during [juror examination] may require
reversal if his or her questions amount to misconduct”); State v.
Iromuanya, 806 N.W.2d 404, 425 (Neb. 2011) (holding that
“parties may not use [juror examination] to impanel a jury with
a predetermined disposition or to indoctrinate jurors to react
favorably to a party’s position”); Khoury v. Seastrand, 377 P.3d 81,
86 (Nev. 2016) (noting that “while counsel may inquire to
determine prejudice, he cannot indoctrinate or persuade the
jurors” (cleaned up)); State v. Broyhill, 803 S.E.2d 832, 841 (N.C.
Ct. App. 2017) (holding that counsel may not attempt to cause
jurors to “pledge themselves to a particular position in advance
of the actual presentation of the evidence”(cleaned up)); State v.
Frederiksen, 700 P.2d 369, 374 (Wash. Ct. App. 1985) (noting that
juror examination questions must be reasonably calculated to
“discover an actual and likely source of prejudice” (cleaned up)).
¶31 Furthermore, a majority of the cases that we have
discovered relevant to this issue have held that questions or
statements about specific defenses, scenarios, or evidence—even
presented as hypotheticals—should be excluded from juror
examination. 11 See, e.g., Boston, 893 N.E.2d at 681; see also Steelman
v. State, 602 N.E.2d 152, 158 (Ind. Ct. App. 1992) (holding that
11. While there are exceptions for “matters of intense
controversy,” those exceptions do not apply in the present case
against Defendant. See People v. Boston, 893 N.E.2d 677, 681 (Ill.
App. Ct. 2008).
20160625-CA 17 2018 UT App 96State v. Williams
juror examination “should not be used to begin trying the case
before evidence has been presented”); State v. Holmes, 5 So. 3d
42, 56 (La. 2008) (holding that “Louisiana law clearly establishes
that a party interviewing a prospective juror may not ask a
question or pose a hypothetical scenario which would demand a
commitment or pre-judgment from the juror”); Iromuanya, 806
N.W.2d at 425 (holding that “counsel may not use [juror
examination] to preview prospective jurors’ opinions of the
evidence that will be presented”); State v. Johnson, 706 S.E.2d 790,
793 (N.C. Ct. App. 2011) (noting that “a defendant is not entitled
to put on a mini-trial of his evidence during [juror examination]
by using hypothetical questions [or] situations to determine
whether a juror would cast a vote for his theory”); Broyhill, 803
S.E.2d at 841 (holding that “stakeout” questions were improper
where counsel posed “hypothetical evidence or scenarios to
attempt to ‘stake-out’ prospective jurors” (cleaned up)); State v.
Janis, 2016 SD 43, ¶ 23, 880 N.W.2d 76 (holding that “questions
regarding what the jurors considered to be signs of intoxication”
were impermissible). Simply stated, these types of “stakeout”
questions are improper.
¶32 The issue of determining when a juror examination has
crossed the line into impermissible indoctrination is one of first
impression. While Utah case law does address situations in
which the juror examination is too restrictive, we have not found
any Utah case discussing when juror examination is too
permissive. See State v. Saunders, 1999 UT 59, ¶¶ 38, 43, 992 P.2d
951 (reversing and remanding where defense counsel was
prohibited from investigating possible bias regarding
“specialized knowledge concerning child sexual abuse” during
juror examination); State v. Holm, 2017 UT App 148, ¶ 18, 402
P.3d 193 (reversing and remanding where the trial court did not
permit questions regarding “jurors’ experiences and the
experiences of persons close to them in serious car collisions”);
Alcazar v. University of Utah Hosps. & Clinics, 2008 UT App 222,
¶ 1, 188 P.3d 490 (reversing and remanding where the trial court
refused to allow questions regarding jurors’ attitudes toward
tort reform and medical malpractice).
20160625-CA 18 2018 UT App 96State v. Williams
¶33 Nevertheless, as pointed out above, the proper purpose of
juror examination is well established in Utah law. The
prosecutor’s approach departed from this well-established
purpose and the prosecutor’s departure should have been
obvious to the judge. Looking to other jurisdictions supports the
conclusion that error occurred here. People v. Knight, 2013 IL App
(4th) 111127-U, is instructive in this case. There, the court
reviewed a defendant’s convictions for sexual assault and
aggravated sexual abuse. Id. ¶ 2. During juror examination, the
prosecutor asked prospective jurors, “Would somebody
volunteer to tell all of us about your last sexual experience?” Id.
¶ 6. Presumably because no one volunteered, the prosecutor
followed up with, “How about last year, experience from last
year? Doesn’t have to be the most recent.” Id. Again, the
prosecutor had no takers. So he asked a specific prospective
juror, “Why didn’t you raise your hand and tell everybody about
that[?]” Id. This led to a discussion about “feelings of
nervousness and embarrassment and that sort of thing involved
and attached to that question,” as well as how difficult it would
be for a fifteen-year-old girl to share details about sexual abuse
by her stepfather. Id.
¶34 The Illinois Appellate Court reviewed for plain error the
defendant’s claim that “the prosecutor improperly indoctrinated
the jurors during [juror examination].” Id. ¶ 33. Noting that
“[t]he threshold question, o[f] course, is whether any error
occurred at all,” the court concluded, “Here, an error occurred.”
Id. ¶¶ 35–36. It explained:
[Juror examination] is not to be used as a means of
indoctrinating a jury, or impaneling a jury with a
particular predisposition. In this case, the
prosecutor erroneously incorporated specific facts
from his case into his [juror examination] inquiry,
essentially attempting to bolster his star witness’s
credibility before the trial began[.]
20160625-CA 19 2018 UT App 96State v. Williams
Id. ¶ 36 (cleaned up). Ultimately, though, the Illinois court
concluded that the defendant had not been prejudiced by this
error and affirmed his convictions. Id. ¶¶ 37, 50. 12
¶35 The similarity between portions of the State’s juror
examination in the present case and that at issue in Knight allows
us to easily and similarly conclude, “Here, an error occurred.”
See id. ¶ 36. Both cases involved a father figure allegedly sexually
abusing his daughters. Both prosecutors asked inappropriately
intimate questions about the jurors’ sex lives. Both prosecutors
used their examination questions to segue to a discussion
regarding the difficulties of sharing intimate details in a public
setting. And in doing so, both prosecutors improperly attempted
to bolster the victim’s credibility. We accordingly conclude, like
the Illinois Appellate Court, that the “prosecutor should never
have asked these questions, and once they were asked, the trial
court should have emphatically stopped this line of inquiry.” See
id. ¶ 44. Because the trial court presiding over Defendant’s case
did not intervene, it erred.
¶36 We note that in the present case, the improper juror
examination went far beyond the error identified in Knight.
Additional problematic questions posed by the prosecutor in this
case make it a clear call. Here, the prosecutor impermissibly
used juror examination to preview and argue her case,
explaining how child sex abuse cases are reported, investigated,
and proven at trial and coaching the potential jury members on
how they should evaluate the evidence. In People v. Boston, 893
N.E.2d 677 (Ill. App. Ct. 2008), the Appellate Court of Illinois
12. However, a member of the panel dissented, arguing “the
error rises to the level of plain error.” People v. Knight, 2013 IL
App (4th) 111127-U, ¶ 53 (Turner, J., dissenting). Because the
case “hinged on credibility,” and the prosecutor’s improper juror
examination was “designed to bias the jurors in assessing
credibility,” the dissent concluded that the error was prejudicial.
Id. ¶ 54.
20160625-CA 20 2018 UT App 96State v. Williams
reversed and remanded the trial court’s decision to allow
counsel to ask similar questions, such as
is there anyone that believes if a person or a
woman gets an order of protection against
someone and then invites that person over that she
has the [order of protection] against, does anyone
believe that the invitation itself equals consent to a
later sexual act? . . . [I]s there anyone that believes a
person consents to a sexual act if they [do not]
scream or fight or kick or yell or scratch or hit?
Anyone require a victim to do any of those things
while [she is] being assaulted?
Id. at 681. The court held that these questions impermissibly
“highlighted factual details about the case and asked prospective
jurors to prejudge those facts.” Id.
¶37 Again, we conclude that a similar error occurred in this
case, which should have been obvious to the trial court.13 When
the prosecutor veered from acceptable juror examination
territory, the trial court allowed it. Furthermore, the trial court
allowed the prosecutor to improperly bolster the anticipated
testimony of the daughters and invited the jury to prejudge the
case. This process was disconnected with the true purpose of
juror examination, which is to “determine, by inquiry, whether
biases and prejudices, latent as well as acknowledged, will
interfere with a fair trial if a particular juror serves in it.” Salt
13. Illinois’s plain-error doctrine requires “a clear or obvious
error,” id. ¶ 34 (majority opinion), similar to our requirement
that an appellant arguing plain error demonstrate that “the error
should have been obvious to the trial court,” State v. Dunn, 850
P.2d 1201, 1208–09 (Utah 1993). Thus, while the Knight court did
not explicitly decide that the error was clear or obvious, its
conclusion that there was an error implies that clear or obvious
error occurred.
20160625-CA 21 2018 UT App 96State v. Williams
Lake City v. Tuero, 745 P.2d 1281, 1283 (Utah Ct. App. 1987).
Using juror examination as a tool to indoctrinate the jury on a
party’s argument or bolster anticipated witness testimony is
improper.14
¶38 As stated, the multiplicity of the prosecutor’s divergence
from the established purpose of juror examination was error and
should have been obvious to the trial court. We are thus tasked
with considering whether “absent the error, there is a reasonable
likelihood of a more favorable outcome for the appellant, or
phrased differently, our confidence in the verdict is
undermined.” State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993).
We conclude that had error not occurred, there is a reasonable
likelihood that Defendant would have had a more favorable
outcome. Our reasoning is two-fold.
¶39 First, the prosecutor’s attempts to bolster the victims’
credibility were not isolated incidents, but permeated the State’s
entire juror examination. When she did ask questions, they were
almost always premised on facts—presented as hypotheticals—
that mirrored the actual facts of this case. See supra ¶¶ 27–28.
Instead of asking open-ended questions, her questions
resembled those one would expect to hear on cross-examination.
See supra ¶¶ 27–28. In short, where the juror examination process
was replete with suggestive questions and improper allusions to
the actual facts of this case, and lacking in questions meant to
root out biases, Defendant’s trial was tainted before it began.
14. In Utah’s trial courts, the days of perfunctory—and often
insufficient—judge-only-conducted juror examination are gone.
Indeed, our rules now expressly provide for attorney-conducted
juror examination, see Utah R. Crim. P. 18(b), and many judges
and attorneys wisely embrace the conscientious use of a well-
drafted questionnaire. But a free-for-all attorney-conducted juror
examination in the presence of the entire venire carries with it a
substantial risk of irreparably tainting the entire panel and
effectively guaranteeing the resulting mistrial.
20160625-CA 22 2018 UT App 96State v. Williams
¶40 Second, the case turned on the credibility of the victims,
and the improper juror examination predisposed the jury to
believe the victims’ testimony, despite evidence of inconsistency.
We acknowledge that the State presented a large amount of
evidence indicating Defendant’s guilt. But that evidence was not
without its problems, and ultimately the case turned entirely on
the victims’ testimony. The incongruities in the daughters’
testimony, see supra ¶¶ 5–8, thus compound the concerns that
began during juror examination and undermine our confidence
in Defendant’s convictions. See Dunn, 850 P.2d at 1209. We
therefore reverse.
CONCLUSION
¶41 We reverse Defendant’s convictions. Given the trial
court’s failure to intervene in the State’s improper juror
examination, the court plainly erred. Coupled with the
inconsistencies in the evidence, our confidence in the jury’s
verdicts is undermined. We therefore remand for a new trial.
20160625-CA 23 2018 UT App 96