Williams v. State

BELL, Chief Judge.

The dispositive issue in the case sub judiee is whether the defendant is entitled to a new trial as a result of a juror’s nondisclosure, during voir dire, of the fact that a member of that juror’s family was employed as a secretary in the State’s Attorney’s Office (“SAO”) that was prosecuting the defendant and when the relationship was not discovered until after the trial had been completed. This issue is one of first impression for this Court. A similar, but certainly not identical, issue has *102been considered by the Court of special Appeals, however. It was first addressed in Burkett v. State, 21 Md.App. 438, 319 A.2d 845 (1974). In that case, the trial court voir dired the juror, albeit after the fact, with regard to the reason for the nondisclosure, concluding that it was inadvertent. The intermediate appellate court, in affirming, formulated a test:

“[T]he grant of a new trial, where information inadvertently is withheld by a juror’s failure to respond to voir dire inquiry, should be left to the sound discretion of the trial judge unless:
“(a) actual prejudice to the accused is demonstrated, or “(b) the withheld information, in and of itself, gives rise to a reasonable belief that prejudice or bias by the juror against the accused is likely.”

Id. at 445, 319 A.2d at 849. We agree with this analytical construct for the circumstances there presented. It does not, as we shall see, resolve the factual scenario that this case presents.

The appellant, Willard H. Williams (“Williams”), and his co-defendant, Kevin Jones (“Jones”), were charged with distribution of cocaine and related offenses and tried, by jury, in the Circuit Court for Baltimore City. During the voir dire process, the trial judge asked the venire, inter alia, whether:

“... any member of the panel, any member of your immediate family or household or anyone else that you’re close to and get significant advice from, been in the past, going to be in the future or are currently employed or doing business with or otherwise closely associated with any law enforcement agency? That includes the City Police, the County Police, the State Police, or any other kind of police. The attorney General for the State of Maryland or any other State, the State’s Attorney’s Officer [sic], Baltimore City, Baltimore County, and other State or District Attorney’s office, the United State’s Attorney Office for the Federal District of Maryland or any other federal district, Federal law enforcement agencies including but not limited to FBI, DEA, ATF, INS, IRS, Customs, Coast Guard, Military Police, NSA, CIA, Homeland Security or any other type of *103outfit that either has a security function or has an investigative function? Also, include parole and probation agents, sheriffs departments, correctional officers and other employees of correctional facilities and people who work for private security companies, then be prepared to tell us about that when you come up.”

Juror 560, Ernestine Lane, as later discovered, was the sister of a secretary in the State’s Attorney’s Office. Nevertheless, she did not respond to the question. She had responded to other venire questions, however, as follows:

“The Court: Any information you’d like to share with us? “Juror 560: No.
“The Court: Ever been in a courtroom before — witness, juror, spectator?
“Juror 560: Juror.
“The Court: Civil, criminal or not picked? Did you have to award money or did you have to vote somebody not guilty or guilty?
“Juror 560: Award money.
“The Court: Anything about that experience that would cause you to be unfair to either of these two gentlemen or the State?
“Juror 560: No.”

Ms. Lane was seated as juror number four and served on the jury.

Both Williams and Jones were convicted of the crimes charged. When they were informed by the State of Ms. Lane’s familial relationship with an employee of the State’s Attorney’s Office, they offered the non-disclosure as one of the grounds for their motion for a new trial. Emphasizing the non-disclosure of the familial relationship — “the juror never disclosed that during voir dire” — and relying on Leach v. State, 47 Md.App. 611, 425 A.2d 234 (1981) and Burkett v. State, 21 Md.App. 438, 319 A.2d 845 (1974), to which he referred the Court, Williams argued1:

*104“Both are similar situations where there were voir dire questions, information was obviously withheld or not disclosed and the Court says; the withheld information in and of itself gives rise to a reasonable belief that prejudice or bias by a juror against the accused is likely. I think in this case the fact that we did not know that this juror had a relationship with the State’s Attorney’s Office that it is reasonable and the presumption is that there was a bias. And based on that I would ask the Court to Grant my Motion for a new trial.”

The prosecutor confirmed that Ms. Lane was “the sister of one of the secretaries in my office,” but, because the he “ha[d] not asked Ms. Lane, ha[d] not called Ms. Lane, had any contact with Ms. Lane about the situation,” he was unable to respond to the court’s question as to why the juror did not disclose the relationship.2 No other information being avail*105able, Ms. Lane was not called to testify as to the reason for the non-disclosure, the prosecutor submitted and the court denied the new trial motion, ruling:

“Well that’s pretty remote; a sister of a secretary in the State’s Attorney’s Office. If the Court of Appeals wants to grant a new trial on that basis they’re more than welcome to do it. We struggle in Baltimore with an electorate with less than a high school education, that is not very sophisticated, and doesn’t understand the simplest of questions. If the Court of Appeals wants to create laboratory circumstances and create precision in each trial, which pre-supposes that jurors will come in here that come in and understand simple English questions, or a defendant gets multiple trials at great expense to the taxpayers, let them do so. I’m not going to. Motion for New Trial is denied.”

Williams filed an appeal to the Court of Special Appeals. We, on our own motion, issued the writ of certiorari while the case was pending in that court. Williams v. State, 384 Md. 581, 865 A.2d 589 (2005). For the reasons that follow, we shall reverse the judgment of the Circuit Court for Baltimore City.

A.

The Sixth Amendment to the United States Constitution,3 as applied to the States by the Fourteenth Amend*106ment, guarantees criminal defendants an impartial jury trial. Attorney Grievance Comm’n of Maryland v. Gansler, 377 Md. 656, 675, 835 A.2d 548, 558 (2003); Jenkins v. State, 375 Md. 284, 300, 825 A.2d 1008, 1017 (2003); Ware v. State, 360 Md. 650, 670, 759 A.2d 764, 774 (2000). There is a similar guarantee provided by Article 21 of the Maryland Declaration of Rights.4 Bristow v. State, 242 Md. 283, 289, 219 A.2d 33, 36 (1966). See Gansler, 377 Md. at 675, 835 A.2d at 559; Jenkins, 375 Md. at 299, 825 A.2d at 1017. The guarantee is not that the juror will not have formed or expressed an opinion with regard to the matter at issue, only “that he shall be without bias or prejudice for or against the accused, and that his mind is free to hear and impartially consider the evidence, and to render a verdict thereon without regard to any former opinion or impression existing in his mind, formed upon rumor or newspaper reports.” Garlitz v. State, 71 Md. 293, 300, 18 A. 39, 41 (1889). See Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751, 756 (1961); Bristow, 242 Md. at 288-89, 219 A.2d at 36; Kujawa v. Baltimore Transit Co., 224 Md. 195, 201, 167 A.2d 96, 98 (1961); Newton v. State, 147 Md. 71, 76, 127 A. 123, 126 (1924). Thus, “[t]he potency of the Sixth Amendment [and Article 21] right to a fair trial relies on the promise that a defendant’s fate will be determined by an impartial fact finder who depends solely on the evidence and argument introduced in open court.” Allen v. State, 89 Md. App. 25, 42, 597 A.2d 489 (1991), cert. denied, 325 Md. 396, 601 A.2d 129 (1992). Of course, a “fundamental tenet of our legal *107system” is that, to be impartial, the fact finder must presume the innocence of the criminal defendant. Wright v. State, 312 Md. 648, 652, 541 A.2d 988, 990 (1988) (citing Johnson v. State, 227 Md. 159, 163, 175 A.2d 580, 582 (1961)).

Critical in ensuring that the guarantee is meaningful is the voir dire of the venire, the purpose of which is to exclude from the venire potential jurors for whom there exists cause for disqualification, so the jury that remains is capable of deciding the matter before it based solely on the facts presented, and uninfluenced by extraneous considerations. Hill v. State, 339 Md. 275, 279, 661 A.2d 1164 (1995). As we put it in that case,

“Undergirding the voir dire procedure and, hence, informing the trial court’s exercise of discretion regarding the conduct of the voir dire, is a single, primary, and overriding principle or purpose: ‘to ascertain “the existence of cause for disqualification.” ’ ”

Id. at 279, 661 A.2d at 1166 (quoting McGee v. State, 219 Md. 53, 58, 146 A.2d 194, 196 (1959), in turn quoting Adams v. State, 200 Md. 133, 140, 88 A.2d 556, 559 (1952)). See Jenkins, 375 Md. at 331, 825 A.2d at 1035-36 (“[O]ne of the ways to protect a defendant’s constitutional right to an impartial jury is to expose the existence of factors which could cause a juror to be biased or prejudiced through the process of voir dire examination.”); Dingle v. State, 361 Md. 1, 9, 759 A.2d 819, 823 (2000) (“Voir dire, the process by which prospective jurors are examined to determine whether cause for disqualification exists, see Boyd v. State, 341 Md. 431, 435, 671 A.2d 33, 35 (1996), is the mechanism whereby the right to a fair and impartial jury, guaranteed by Art. 21 of the Maryland Declaration of Rights, ... see Grogg v. State, 231 Md. 530, 532, 191 A.2d 435, 436 (1963), is given substance. See Hill v. State, 339 Md. 275, 280, 661 A.2d 1164, 1166 (1995); Bedford v. State, 317 Md. 659, 670, 566 A.2d 111, 116 (1989)”).

Thus, consistent with the overarching purpose of voir dire in a criminal case in Maryland, to ensure a fair and impartial jury, Boyd v. State, 341 Md. 431, 435, 671 A.2d 33, 35 *108(1996), the proper focus is the venire person’s state of mind, specifically, whether there is some bias, prejudice, or preconception. State v. Thomas, 369 Md. 202, 210, 798 A.2d 566, 570 (2002). To explore that possibility, a defendant is entitled to have the trial judge ask voir dire questions aimed at uncovering that prejudice, Brown v. State, 220 Md. 29, 35, 150 A.2d 895, 897 (1959), including any bias arising out of the nature of the crime with which the defendant is charged. Thomas, 369 Md. at 214, 798 A.2d at 573 (citing Alexander v. R.D. Grier & Sons Co., 181 Md. 415, 419, 30 A.2d 757, 759 (1943)). See also Sweet v. State, 371 Md. 1, 806 A.2d 265 (2002) (applying Thomas).

If there is any likelihood that some prejudice is in the juror’s mind which will even subconsciously affect the juror’s decision of the case, Brown, 220 Md. at 35, 150 A.2d at 897-98, or “any circumstances which may reasonably be regarded as rendering a person unfit for jury service,” Bedford, 317 Md. at 671, 566 A.2d at 117, quoting Corens v. State, 185 Md. at 564, 45 A.2d at 343, the defendant may challenge that juror for cause, and, if that fails, strike him or her peremptorily.5 In this case, the members of the venire were asked about their relationship to law enforcement officials, personnel or agencies, undoubtedly because the trial judge, to whom discretion to determine the scope of voir dire is entrusted, see Davis v. State, 333 Md. 27, 60, 633 A.2d 867, 883-884 (1993), concluded that, while not one of the mandatory areas of inquiry,6it was *109an area that “entail[s] potential biases or predispositions that prospective jurors may hold which, if present, would hinder their ability to objectively resolve the matter before them.” Id. at 36, 633 A.2d at 871-72.

B.

As we have seen, the Court of Special Appeals has addressed the issue where a juror failed to disclose a relevant relationship with the law enforcement community or personnel. In Burkett v. State, 21 Md.App. 438, 319 A.2d 845 (1974), appellant Burkett, having been convicted of first degree murder in the Criminal Court of Baltimore, learned that one of the jurors who convicted him was the father of a secretary employed in the trial section of the Baltimore City State’s Attorney’s Office. 21 Md.App. at 441, 319 A.2d at 847. That juror had not responded when asked during voir dire, “[d]oes any member of the panel have any member of your immediate family who is or was a member of a law enforcement agency as I have defined?” 21 Md.App. at 441, 319 A.2d at 846. Contending that, had the required response been made, he would have used an unexpended peremptory challenge to strike the juror, 21 Md.App. at 439-440, 319 A.2d at 846, Burkett argued, relying on Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759, 771-772 (1965) and Spencer v. State, 20 Md.App. 201, 208, 314 A.2d 727, 731 (1974), that his right to peremptory challenge thus was denied or impaired, entitling him to a new trial without the need to show prejudice. 21 Md.App. at 440, 319 A.2d at 846.

At the new trial hearing, the juror testified that he had not heard the words “State’s Attorney’s Office” in the question, that he did not realize he was being asked a question which required him to disclose his daughter’s employment, that his daughter’s position with the State’s Attorney’s Office did not influence his decision, and that he had not discussed the case *110with his daughter. 21 Md.App. at 441-442, 319 A.2d at 847. On the basis of that testimony, the trial court found the nondisclosure to be inadvertent, and that it had no effect on the verdict. It denied Burkett’s motion for new trial, concluding that the non-disclosure was not “sufficient to warrant this Court setting aside the jury’s verdict and to grant a new trial.” 21 Md.App. at 442, 319 A.2d at 847.

The Court of Special Appeals affirmed. It rejected the peremptory challenge impairment argument, noting that “there is no showing of intentional denial or impairment of the right, either express or implied. On the contrary, the record makes crystal clear (a) that the juror’s failure to respond was wholly inadvertent and (b) that the nature of the withheld information did not in and of itself rise above the purest speculation that it would indicate the juror’s bias or prejudice against persons accused of crime.” 21 Md.App. at 445, 319 A.2d at 849. As indicated, the intermediate appellate court held that, in the absence of a showing of actual prejudice, or unless the evidence withheld “gives rise to a reasonable belief that prejudice or bias by the juror against the accused is likely,” the grant of a new trial is discretionary with the trial court. Id. at 445, 319 A.2d at 849. No actual prejudice having been shown or alleged, the court concluded that the withheld information did not suffice to require a new trial:

“We are persuaded that the contention that a parent of one working as a secretary in a law enforcement agency would be prejudiced against all persons accused of crime is so fanciful and unlikely that it does not rise above the purest speculation.....The information withheld here does not require a new trial as a matter of law. The grant of the relief prayed in a motion for a new trial under such circumstances must be left to the sound discretion of the trial judge.”

21 Md.App. at 445-46, 319 A.2d at 849.

A similar situation was presented in Leach v. State, 47 Md.App. 611, 425 A.2d 234 (1981). In Leach, a juror did not disclose, during voir dire, her acquaintanceship, as classmate and neighbor, with a State witness, one of the investigating *111homicide detectives. 47 Md.App. at 618, 425 A.2d at 238. When that information was revealed on cross-examination of the detective, the court voir dired the juror. In addition to confirming that the juror and the detective were “old schoolmatets] and neighbor[s] of ... some fifteen years prior,” the court was assured by the juror that her past relationship with the detective would not cause her to give the detective’s testimony any greater weight and “that her ability to fairly and impartially judge the case would not be impeded.” The court accepted that assurance and did not strike the juror, which the defendant contended on appeal was reversible error. 47 Md.App. at 618, 425 A.2d at 238. The Court of Special Appeals did not agree. 47 Md.App. at 618, 425 A.2d at 238. Citing the test outlined in Burkett, it explained:

“We think the same guidelines apply where a mistrial is sought because of misinformation given by a prospective juror during voir dire proceedings. The voir dire conducted by the trial judge after the discovery of her acquaintance with the police officer satisfied the judge that the failure of the juror to disclose her acquaintance during the original voir dire was inadvertent and unintentional; that the relationship between the juror and the officer was minimal and had existed in the remote past; and that the juror could still render a fair and impartial verdict. Under the circumstances, we do not believe that the facts in this case would require a disqualification for cause of the juror during the original voir dire; nor do we find any abuse of discretion by the trial judge in refusing to strike the juror after the case had begun or to grant a mistrial.”

47 Md.App. at 619, 425 A.2d at 238-239.

The State argues that Burkett and Leach are applicable and dispositive. It maintains that, under those precedents, the juror’s failure to disclose her relationship to a family member who worked in the State’s Attorney’s Office did not prejudice the defendant and, as such, there is no sufficient basis for the grant of a new trial.

We do not agree. In both Burkett and Leach, the trial judge, upon discovery of the jurors’ non-disclosure of a rela*112tionship that was the subject of voir dire inquiry, recognizing the potential for prejudice, questioned the jurors, on the record, to determine whether there was, or cause to be concerned about, prejudice. Only after that inquiry and on the basis of the findings it made on the basis of the information it disclosed did, or could, the trial court exercise its discretion with respect to the requested relief. With no comparable inquiry as a predicate in this case, the trial judge, concluding that the relationship not disclosed was “pretty remote,” and, therefore, not sufficient to support a new trial, denied the Williams’ motion for new trial.

As we have said, voir dire is the mechanism by which we give substance to the constitutional guarantee to criminal defendants of a fair and impartial jury trial. The questions propounded during the voir dire process are focused upon, and designed to uncover, bias, prejudice or pre-conception. In fact, the subjects to which those questions are directed comprise, or relate to, “potential biases or predispositions that prospective jurors may hold which, if present, would hinder their ability to objectively resolve the matter before them.” Dingle v. State, 361 Md. 1, 11 n. 8, 759 A.2d 819, 824 n. 8. Therefore, if the guarantee of impartiality is to be meaningful, prospective jurors must be expected to answer the questions applicable to them, and to do so fully and truthfully. A defendant must be able to rely on that being the case. Had the juror responded to the subject voir dire question, the defendant would have been able to move to strike the juror for cause, if he felt that she was prejudiced, and to strike peremptorily otherwise. To be sure, the disclosure of the relationship would not have resulted in a finding of prejudice as a matter of law and, thus, a strike for cause; however, it would have allowed for further investigation and information bearing on that issue, specifically an inquiry into the venire person’s ability to render an impartial verdict based solely on the evidence presented. Thomas, 369 Md. at 210, 798 A.2d at 571; Davis, 333 Md. at 37, 633 A.2d at 872. The failure to disclose foreclosed that further investigation and delving of the juror’s state of mind.

*113Moreover, as we made clear in Dingle, “[b]ias is a question of fact,” 361 Md. at 15, 759 A.2d at 826, the existence of which is a matter left to the trial judge, “the focal point in the process,” whose “predominant function in determining juror bias involves credibility findings whose basis cannot be discerned from an appellate record.” Id., quoting Wainwright v. Witt, 469 U.S. 412, 429, 105 S.Ct. 844, 855, 83 L.Ed.2d 841, 855 (1985). In addition, it is the trial judge’s role to decide whether, and when, cause for disqualification exists for any particular venire person. Id. In both Burkett and Leach, the trial court was able to perform its “focal point” role. It was able to conduct the further investigation and delving into the juror’s state of mind, albeit after the fact. As a result, the court was able to satisfy itself, and was satisfied, that the non-disclosure was inadvertent, that, in other words, there was no basis to believe that the juror was biased or otherwise not impartial.7

We endeavor to be clear on this point. Where the juror is available for further voir dire and is further voir dired, a trial court may exercise the discretion Burkett requires it to exercise. But, the trial court’s sound discretion can only be exercised on the basis of the information that the voir dire reveals and the findings the trial court makes as a result. On the other hand, where the juror is not available or is not voir dired, there simply is neither a basis for the findings of fact, which must form the predicate for the exercise of discretion, nor for the exercise of discretion that Burkett contemplates.8 That the trial court may believe that it is “pretty remote” that an answer to a voir dire question would uncover bias or *114prejudice does not, and cannot, replace the need for the court to make findings of fact on the issue.

We hold that, where there is a non-disclosure by a juror of information that a voir dire question seeks and the record does not reveal whether the non-disclosure was intentional or inadvertent,9 the defendant is entitled to a new trial.10 That the disclosure would not automatically have required a strike for cause does not matter; it is the inability of the *115defendant to have the benefit of a further investigation by the court, he or she being deprived of the ability to delve into the juror’s state of mind for bias and of a finding in that regard, that is decisive. The perceived “remoteness” of the potential bias does not preclude bias; without a finding of fact in confirmation, it cannot be a sufficient reason to deny a new trial.

This approach and result is consistent with decisions from other jurisdictions. In State v. Thompson, 142 N.J.Super. 274, 361 A.2d 104, 108 (App.Div.1976), the court held:

*116“Regardless of the labels which may be applied in articulating the reasons for reversal of a criminal conviction resulting from a trial where a juror has failed to respond to a Voir dire question patently addressed to the possible existence of bias, the result must be the same. Whether the nondisclosure is designated as ‘prejudicial Per se,’ presumptively harmful or ‘colorable bias,’ the conclusion is inescapable that defendant has been deprived of a fundamental right to a fair trial and that his conviction cannot stand.”

Similarly, it was held in People v. Blackwell, 191 Cal.App.3d 925, 929, 236 Cal.Rptr. 803 (Cal.Ct.App.1987) (citations omitted):

“The prosecution, the defense and the trial court rely on the voir dire responses in making their respective decisions, and if potential jurors do not respond candidly the jury selection process is rendered meaningless. Falsehood, or deliberate concealment or nondisclosure of facts and attitudes deprives both sides of the right to select an unbiased jury and erodes the basic integrity of the jury trial process.
“Intentional concealment of relevant facts or the giving of false answers by a juror during the voir dire examination constitutes misconduct ... and the occurrence of such misconduct raises a rebuttable presumption of prejudice.... Prejudicial jury misconduct constitutes grounds for a new trial.”.

See also State v. Woods, 345 S.C. 583, 550 S.E.2d 282, 284 (2001) (“Where a juror, without justification, fails to disclose a relationship, it may be inferred, nothing to the contrary appearing, that the juror is not impartial”); Doyle v. Kennedy Heating & Service, Inc., 33 S.W.3d 199, 201 (Mo.Ct.App.2000) (“If a juror intentionally withholds material information requested on voir dire, bias and prejudice are inferred from such a concealment.....Only where a juror’s intentional nondisclosure does not involve a material issue, or where the *117nondisclosure is unintentional, should the trial court inquire into prejudice.” (Emphasis in original)); State v. Akins, 867 S.W.2d 350, 357-358 (Tenn.Crim.App.,1993) (defendant entitled to new trial because juror failed to disclose, on voir dire, relevant life experiences specifically inquired about); Board of Trustees Eloy Elementary School Dist. v. McEwen, 6 Ariz. App. 148, 430 P.2d 727, 733 (1967) (“The right to a trial by jury means an impartial jury and nondisclosure, [u]pon proper inquiry on voir dire examination, of bias or prejudice which would render a juror vulnerable to challenge, is ground for a new trial”); Hayes v. Boykin, 271 Ala. 588, 126 So.2d 91, 94 (1960) (ruling that a juror’s silence during voir dire could be a basis for granting a new trial); Freeman v. Hall, 286 Ala. 161, 238 So.2d 330, 335 (1970) (“The proper inquiry on a motion for a new trial based on improper or nonexistent responses to voir dire questions is whether the response, or the lack of response, resulted in probable prejudice to the movant”); Jackson v. United States, 395 F.2d 615, 618 (D.C.Cir.1968) (ordering new trial when juror did not disclose that he had been “the lover in a love triangle strikingly similar to the one alleged to have been involved” and was being tried in the case on which he sat).

C.

Finally, we turn to the second issue raised by Williams, that the State’s failure to disclose potential impeachment evidence regarding one of its witnesses, namely that the investigating police officer in this case had a history of official misconduct and allegations of neglect of duty, violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Maryland Rule 4-263(g).11 This issue was recently addressed *118in State v. Williams, 392 Md. 194, 896 A.2d 973 (2006). In Williams, we held that Maryland Rule 4-263(g) extended not only to exculpatory or mitigating information pertaining to State’s witnesses known by the Assistant State’s Attorney actually prosecuting a specific criminal case and the related officers participating in that prosecution, but also to such information known to the other Assistant State’s Attorneys in the same office, 392 Md. at 209-210, 896 A.2d at 982, and that, furthermore, Brady v. Maryland has the same reach. 392 Md. at 209-210, 896 A.2d at 982.

Williams contends that knowledge of this officer’s past could be imputed to the prosecutor in the case sub judice, and that, furthermore, as an investigating officer, the officer fits squarely within the definition of “others who have participated in the investigation or evaluation of the action and who regularly report, or with reference to the particular action have reported, to the office of the State’s Attorney.” On the other hand, the State contends that Brady does not require a combing of the internal affairs files of every police officer involved in a particular case.

We have reversed Williams’s conviction because of the juror nondisclosure. Consequently we need not, and therefore, do not, resolve the issue, leaving it for resolution on retrial. Our recent Williams decision is dispositive of these issues and, thus, should guide the trial court in that regard.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY REVERSED AND CASE REMANDED TO THAT COURT FOR A NEW TRIAL. COSTS TO BE PAID BY THE MAYOR AND CITY COUNCIL OF BALTIMORE.

RAKER, J., files dissenting opinion in which HARRELL and BATTAGLIA, JJ., join.

. Counsel for Jones made a similar argument, more specifically pointing out the harm of the non-disclosure:

*104"The first issue was that apparently one of the jurors, whose name I don’t have at this point in time, on the jury panel never responded to the question was she dealing with, related to or acquainted with anyone employed by the State’s Attorney’s Office of Baltimore City. I was advised a couple days after the verdict that apparently one of the jurors contacted the, apparently is related to the sister of the, counsel for the State, Ms. Potter, and I’m sorry, to the secretary for Ms. Potter, apparently is her sister, and contacted Ms. Potter a day or so after the trial indicating that Ms. Potter informed us of that. So therefore, our first issue on the Motion for New Trial would have been that the juror did not, in fact this question was asked to her actually twice. That was the original question asked and she did affirmatively to it [sic]. Then the question was asked as a test question at [counsel for the defense’s] request because he felt a lot of the jurors were not responding to the questions. She did not respond to that question the second time. It is our position that obviously we would have used our challenge, our peremptory challenge, at least and obviously would have moved for cause first and if that would not have been granted use a peremptory challenge to strike her from the panel ...".

. We note that the exact relationship between the juror and the State’s Attorney’s Office is not clear from the record; that is, it is unknown if the family-related secretary was the secretary for counsel for the State specifically, or for the office generally. At the Motion for New Trial for Kevin Jones, defense counsel noted:

"I was advised a couple days after the verdict that apparently one of the jurors contacted the, apparently is related to the sister of the, *105counsel for the State, Ms. Potter, and I'm sorry, to the secretary for Ms. Potter, apparently is her sister, and contacted Ms. Potter a day or so after the trial indicating that Ms. Potter informed us of that.”

Further, at the Motion for New Trial for Willard Williams, counsel for the State noted:

“The juror is number 560, was number 560, her name is Ernestine Lane. She’s the sister of one of the secretaries in my office ...” Regardless, our holding is not disturbed by this uncertainty.

. U.S. Const., amend. VI provides:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining *106witnesses in his favor, and to have the assistance of counsel for his defence.” (Emphasis added).

. Article 21 of the Maryland Declaration of Rights provides

“Rights of accused; indictment; counsel; confrontation; speedy trial; impartial and unanimous jury.
"That in all criminal prosecutions, every man hath a right to be informed of the accusation against him; to have a copy of the Indictment, or charge, in due time (if required) to prepare for his defence; to be allowed counsel; to be confronted with the witnesses against him; to have process for his witnesses; to examine the witnesses for and against him on oath; and to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty.” (Emphasis added).

. See Maryland Code (1973, 2002 Replacement VoL, 2005 Supp.) § 8-301 of the Courts and Judicial Proceedings Article.

. In Dingle v. State, 361 Md. 1, 11 n. 8, 759 A.2d 819, 824 n. 8 (2000), listed the areas of mandatory inquiry this Court has identified: “racial, ethnic and cultural bias, Hernandez v. State, 357 Md. 204, 232, 742 A.2d 952, 967 (1999); Hill v. State, 339 Md. 275, 285, 661 A.2d 1164, 1169 (1995); Bowie v. State, 324 Md. 1, 15, 595 A.2d 448, 455 (1991), religious bias, Casey v. Roman Catholic Archbishop, 217 Md. 595, 606-07, 143 A.2d 627, 632 (1958), predisposition as to the use of circumstantial evidence in capital cases, Corens v. State, 185 Md. 561, 564, 45 A.2d 340, 343-44 (1946), and placement of undue weight on police officer credibility. See Langley v. State, 281 Md. 337, 349, 378 A.2d 1338, 1344 (1977),” pointing out that each category involves "potential *109biases or predispositions that prospective jurors may hold which, if present, would hinder their ability to objectively resolve the matter before them.” Davis v. State, 333 Md. 27, 36, 633 A.2d 867, 871-72 (1993).

. Doss v. State, 906 So.2d 836 (Miss.Ct.App.2004) and State v. Evans, 20 P.3d 888 (Utah 2001) are to like effect. In both, the non-disclosing juror was voir dired by the trial court during the hearing on the defendant's motion for new trial, Doss, 906 So.2d at 839; Evans, 20 P.3d at 894, after which the trial court was satisfied that the nondisclosure was inadvertent, Doss, 906 So.2d at 840; Evans, 20 P.3d at 894, and, in Evans, that, had there been timely disclosure, it would not have resulted in disqualification to serve. 20 P.3d at 894.

. Phares v. Brooks, 214 W.Va. 442, 590 S.E.2d 370, 373 (2003) is illustrative of this point, although a personal injury case rather than a *114criminal case. There, a juror failed to disclose that she was employed by an insurance company. The appellant sought a new trial on that basis. The Circuit Court denied the motion for new trial, apparently accepting the appellee's argument that the nondisclosure was a result of the juror's failure to hear the question, or that an affirmative response, by her raising her hand, was overlooked by the court reporter. The Supreme Court of Appeals of West Virginia reversed, noting that the juror in question had not testified that she had not heard the voir dire question or given any explanation for her failure to answer. It commented, "[w]e are ... troubled by the circuit court’s order when its conclusion is based on speculation....” 590 S.E.2d at 373.

. The State argues, relying on Argyrou v. State, 349 Md. 587, 609, 709 A.2d 1194, 1204-1205 (1998), and Isley v. State, 129 Md.App. 611, 674, 743 A.2d 772, 805-806 (2000), that the burden of establishing prejudice for purposes of a motion for a new trial lies solely with the proponent for the new trial, a burden which Williams has not carried. It also submits that prejudice should not be presumed in this case, there being nothing on the record to suggest that Williams was prejudiced and, in fact, the record supports the conclusion that the juror in question did not purposely avoid questioning, merely "did not hear the particular language that applied to her.” We are not persuaded.

We have held that a new trial is required. As should be obvious, that result is the product of a record that was so deficient as not to have permitted this Court, or the trial court, for that matter, to make a finding as to why the juror not did disclose her familial relationship. Speculation from an inadequate record simply will not do. To require more than that is neither “creating] laboratory circumstances” or "creating] precision,” rather it is insisting that we, as judges, discharge our responsibilities consistent with the rules and the decisional law. The expense of retrials would be greatly limited were we to spend more time adhering to this principle. We do pre-suppose that the jurors who serve in Baltimore City do so with the same dedication and skill as jurors in other parts of the State and that they do, and can, understand simple sentences. In this regard, as well, we would do better to be positive, not negative.

. The dissent believes that a new trial should not be granted, that this case should only be remanded for a hearing to determine whether the *115appellant was prejudiced by the juror’s non-disclosure. 394 Md. 98, 118-19, 904 A.2d 534, 546-47 (2006) (Raker, J., dissenting). It reasons that, because the scope of voir dire in Maryland is limited to exposing a cause for disqualification and does not encompass questions designed to elicit information in aid of peremptory challenges, the out of jurisdiction cases we cite do not support this holding, noting that, in these other states, the voir dire process does provide a basis for exercising peremptory challenges. 394 Md. at 121-24, 904 A.2d at 548-50 (Raker, J., dissenting). The dissent also notes that the Maryland standard does not force the trial court to decide whether, or not, the withheld information resulted in a lost peremptory strike. 394 Md. at 121-22, 904 A.2d at 548 (Raker, J., dissenting).

Whether the withheld information is used for juror disqualification or in aid of the use of peremptory strikes is besides the point. Whenever a relationship is not disclosed, the ability of a party to probe for bias is lost. Because bias is not apparent or discoverable during any stage, the defendant is prejudiced from the start. The primary case on which the dissent relies is McDonough Power Equipment., Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984). 394 Md. at 118-19, 904 A.2d at 546 (Raker, J., dissenting). This case, to be sure, also deals with the loss by a party of the opportunity to exercise a peremptory strike, the very situation rejected by the dissent. 394 Md. at 118-19, 904 A.2d at 546 (Raker, J., dissenting). The juror in McDonough failed to respond when asked if he had ever sustained injuries similar to the plaintiff's. 464 U.S. at 550, 104 S.Ct. at 847, 78 L.Ed.2d at 667. The information that question sough) to elicit was clearly not so prejudicial as a direct family relationship to a member of the State would be. Finally, McDonough holds specifically, “Voir dire examination serves to protect [the] right [to a fair trial by an impartial trier of fact] by exposing possible biases, both known and unknown, on the part of potential jurors,” 464 U.S. at 554, 104 S.Ct. at 849, 78 L.Ed.2d at 671, and, in discussing when a new trial should be granted, clearly states that “reasons that affect a juror’s impartiality can truly be said to affect the fairness of a trial.” 464 U.S. at 556, 104 S.Ct. at 850, 78 L.Ed.2d at 671. A direct family relationship to an employee of the State's Attor*116ney's Office certainly qualifies as a reason that may affect a juror's impartiality and, thus, the fairness of the trial.

. Maryland Rule 4-263(g) provides:

“(g) Obligations of State’s Attorney. The obligations of the State’s Attorney under this Rule extend to material and information in the possession or control of the State’s Attorney and staff members and any others who have participated in the investigation or evaluation of the action and who either regularly report, or with reference to the particular action have reported, to the office of the State's Attorney.”