CIVIL PROCEDURE:  NEW TRIAL (false answer by juror on voir dire and Drury analysis re juror’s culpability and probable bias)
DATE RENDERED:  10/13/2006

Wilson sued the CW and a contractor for improperly designing/constructing a roadway that led to its property being flooded. In 2004, a jury found for the CW & contractor. After judgment was entered, Wilson moved for a new trial on the basis that one the jurors, who eventually ended up sitting as foreperson, failed to reveal during voir dire that Wilson’s counsel represented her ex-husband in a custody dispute years earlier. That dispute entailed several court appearances, with the ex-husband eventually getting custody of the foreperson’s only child. When questioned by the Judge as to why the juror did not reveal this information, she said she only looked at the judge during those hearings, not at her ex or at counsel. She also said the presence of counsel did not affect her deliberations in the instant case.

The Judge granted the motion for a new trial, stating that "the harm lies in the falsity of the information, by a non-answer, whether intentional or not, because the right to reject a juror is impaired," relying on Drury v. Frank, 57 S.W.2d 969 (1933), and Anderson v. Commonwealth, 864 S.W.2d 909 (Ky., 1993), where the standard is that a false answer to a material voir dire question entitles a party to a new trial, based on the rationale that the false answer misleads the party in the exercise of peremptory challenges to the prospective jurors. The CAs found that Drury is no longer the case in Kentucky, citing Brown v. Commonwealth, 174 S.W.3d 421 (Ky., 2005), where the Court held that "to obtain a new trial because of juror mendacity, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response woudl have provided a valid basis for a challenge for cause."

The CAs held that recent cases focus not so much on whether the response was true or false in an absolute sense, but rather on the juror’s culpability or bias, i.e., did the juror deliberately withhold information or intentionally misrepresent factual information? Then, finding the trial judge’s failure to address whether the juror intentionally or inadvertently failed to respond during voir dire was error, the CAs vacated his ruling for a new trial. Judge Barber dissented, sensibly pointing out that every party has a right to an impartial jury, a right that is violated when a potential juror gives a false answer during voir dire. He also disagreed that Drury is no longer followed by the Supremes.

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