State v. Anderson

Melnick, J.

¶40 (concurring) — I concur with the result the majority reaches. However, I write separately to supplement the majority’s analysis under the “experience and logic” test. See majority at 715-16 (analyzing State v. Sublett, 176 Wn.2d 58, 73-74, 292 P.3d 715 (2012) (plurality opinion)).

¶41 I believe there is additional authority in CrR 6.4 to support the majority’s position. This rule delineates procedures for selecting a jury. Specifically, after examination, when challenging a juror for cause, a judge may excuse for cause that juror if grounds for the challenge exist. CrR 6.4(c).¹⁰ If, however, the challenge for cause is denied by the opposing party, “the court shall try the issue and determine the law and the facts.” CrR 6.4(d)(1). If the challenge is tried, the rules of evidence apply and the challenged juror may be called as a witness, subject to cross-examination. CrR 6.4(d)(2). If the court finds the challenge is sufficient or true, the juror shall be excluded. CrR 6.4(d)(2). Conversely, “if not so determined or found otherwise,” the challenge shall be disallowed. CrR 6.4(d)(2).

¶42 Because both the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution guarantee a defendant the right to a public trial and because challenges for cause involve trials, a trial court must either hold the trials in open court or utilize the five part Bone-Club¹¹ test.

Review granted and case remanded to the Court of Appeals at 184 Wn.2d 1009 (2015).

10 CrR 6.4(c)(2) references RCW 4.44.150 through 4.44.200 as governing challenges for cause. RCW 4.44.190 states,

A challenge for actual bias may be taken for the cause mentioned in RCW 4.44.170(2). But on the trial of such challenge, although it should appear that the juror challenged has formed or expressed an opinion upon what he or she may have heard or read, such opinion shall not of itself be sufficient to sustain the challenge, but the court must be satisfied, from all the circumstances, that the juror cannot disregard such opinion and try the issue impartially.

11 State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).