People v. Miller

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED DECEMBER 30, 2008

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 135989

MICHAEL ALLEN MILLER,

Defendant-Appellee.

_______________________________

BEFORE THE ENTIRE BENCH

MARKMAN, J.

We granted leave to appeal to consider whether defendant is entitled to a

new trial on the basis that a convicted felon served as a juror in his original trial.

The trial court held that defendant is not entitled to a new trial because he failed to

establish actual prejudice. The Court of Appeals, on the other hand, held that

defendant is entitled to a new trial because the presence of the convicted felon on

his jury did prejudice him. We do not believe that the trial court abused its

discretion in denying defendant’s motion for a new trial under these circumstances

because the trial court did not clearly err in concluding that defendant failed to

establish that he was actually prejudiced. Accordingly, we reverse the judgment
of the Court of Appeals and remand this case to the Court of Appeals for it to

address defendant’s remaining issues.

I. FACTS AND PROCEDURAL HISTORY

Following a jury trial, defendant was convicted of first-degree criminal

sexual conduct for forcing his then-girlfriend’s seven-year-old daughter to perform

fellatio on him. Before sentencing, defendant learned that one of the jurors had

concealed the fact that he had been convicted of assault with intent to commit

criminal sexual conduct in 1991 and 1999 for having assaulted his sister and

another person to whom he referred as an “adopted child” who was “more like a

niece.” An evidentiary hearing was held. The juror in question stated that he did

not reveal his prior convictions on his juror questionnaire because they were old

and he did not believe that they were even on his record anymore.1 He further

stated that because he had pleaded guilty in both of his criminal cases, he had

never before been through a jury selection process. When asked whether he had

been intentionally untruthful so that he could sit as a juror, he answered, “no,” and

he indicated that he “didn’t really want to sit on the panel in the first place . . . .”

The juror further testified that he had tried to be fair during the trial and that he

never tried to improperly persuade the jury. Following this testimony, the trial

court denied defendant’s motion for a new trial, ruling that there was no evidence

1
The juror questionnaire asked, “Have you ever been a victim, witness,
plaintiff or defendant in a criminal or civil suit?” It also asked, “Have you ever
been convicted of a felony?” The juror answered “no” to both questions.
2

that defendant had suffered actual prejudice.2 The trial court explained that if the

parties had known about the juror’s past convictions, the prosecutor, not the

defendant, would have most likely been the one seeking to excuse this juror. On

appeal, the Court of Appeals reversed defendant’s conviction and remanded for a

new trial on the basis of juror misconduct.3 Unpublished opinion per curiam,

issued January 17, 2008 (Docket No. 273488). We granted the prosecutor’s

application for leave to appeal and limited the issues to:

(1) whether the Court of Appeals erred in reversing the
defendant’s conviction and remanding this case to the circuit court
for a new trial pursuant to People v DeHaven, 321 Mich 327 (1948);
(2) whether DeHaven was wrongly decided or has been superseded

2
During voir dire, defense counsel asked whether jurors had any family
member or friend who was a lawyer, a judge, or anyone involved in the criminal
justice system, such as a jail guard or prison guard. Because the juror did not
believe that he fit into any of those categories, he did not answer the question
affirmatively. During voir dire, the prosecutor asked whether jurors “had personal
dealings with criminal sexual conduct in [their] immediate, close family to where -
- to the point where they think they can’t be fair in this kind of trial.” The juror
did not answer this question affirmatively because he believed that he could be
fair. The trial court determined that although the juror answered the questions on
the juror questionnaire untruthfully, he did not answer any of the voir dire
questions untruthfully given the examples and the qualifiers that were used by the
attorneys in the potentially applicable questions. The trial court further concluded
that the juror was not attempting to be deceitful and that he did not have any
ulterior motives in answering the questions in the manner that he did.
3
The Court of Appeals agreed with the trial court that

[w]hile the juror clearly misrepresented his status on the
questionnaire with regard to criminal history, . . . the questions
during voir dire, as framed and qualified, did not technically require
the juror to divulge his past convictions, so it cannot be said that the
juror lied or made a misrepresentation during voir dire.
[Unpublished opinion per curiam, issued January 17, 2008 (Docket
No. 2734888), p 2.]
3

 by MCL 600.1354(1); (3) whether a criminal defendant must
establish actual prejudice pursuant to MCL 600.1354(1) where the
challenged juror was excusable for cause; (4) how the “actual
prejudice” standard for purposes of MCL 600.1354(1) should be
defined; and (5) whether the juror’s failure to disclose his status as a
felon, which disqualified him from serving on the jury, constituted
structural error pursuant to Neder v United States, 527 US 1 (1999).
[481 Mich 851, 851-852 (2008).]

II. STANDARD OF REVIEW

A trial court’s factual findings are reviewed for clear error. People v Cress,

468 Mich 678, 691; 664 NW2d 174 (2003). “Clear error exists if the reviewing

court is left with a definite and firm conviction that a mistake has been made.”

People v Johnson, 466 Mich 491, 497-498; 647 NW2d 480 (2002). A trial court’s

decision to deny a motion for a new trial is reviewed for an abuse of discretion.

Cress, 468 Mich at 691. An abuse of discretion occurs only “when the trial court

chooses an outcome falling outside [the] principled range of outcomes.” People v

Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).

III. ANALYSIS

There are several statutory qualifications that a person must satisfy in order

to be eligible to serve as a juror. CL 600.1307a(1) provides:
M

To qualify as a juror a person shall:
(a) Be a citizen of the United States, 18 years of age or older,
and a resident in the county for which the person is selected, and in
the case of a district court in districts of the second and third class,
be a resident of the district.
(b) Be able to communicate in the English language.

4

 (c) Be physically and mentally able to carry out the functions
of a juror. Temporary inability shall not be considered a
disqualification.
(d) Not have served as a petit or grand juror in a court of
record during the preceding 12 months.
(e) Not have been convicted of a felony. [Emphasis added.]

If a potential juror does not satisfy one of these statutory qualifications, a party

may challenge the potential juror for cause. MCR 2.511(D)(1). There are also

several other grounds that would justify a challenge for cause. MCR 2.511(D)

provides, in pertinent part:

It is grounds for a challenge for cause that the person:
(1) is not qualified to be a juror;
(2) is biased for or against a party or attorney;
(3) shows a state of mind that will prevent the person from
rendering a just verdict, or has formed a positive opinion on the facts
of the case or on what the outcome should be;
(4) has opinions or conscientious scruples that would
improperly influence the person’s verdict;
(5) has been subpoenaed as a witness in the action;
(6) has already sat on a trial of the same issue;
(7) has served as a grand or petit juror in a criminal case
based on the same transaction;
(8) is related within the ninth degree (civil law) of
consanguinity or affinity to one of the parties or attorneys;
(9) is the guardian, conservator, ward, landlord, tenant,
employer, employee, partner, or client of a party or attorney;
(10) is or has been a party adverse to the challenging party or
attorney in a civil action, or has complained of or has been accused
by that party in a criminal prosecution;
(11) has a financial interest other than that of a taxpayer in the
outcome of the action;

5

 (12) is interested in a question like the issue to be tried.
[Emphasis added.]

MCR 6.412(D)(2) provides that if “the court finds that a ground for challenging a

juror for cause is present, the court on its own initiative should, or on motion of

either party must, excuse the juror from the panel.” Similarly, MCL 600.1337

states that “[w]hen the court finds that a person in attendance at court as a juror is

not qualified to serve as a juror, or is exempt and claims an exemption, the court

shall discharge him or her from further attendance and service as a juror.” Finally,

MCL 600.1354(1) states, in pertinent part:

Failure to comply with the provisions of this chapter shall not
. . . affect the validity of a jury verdict unless the party . . . claiming
invalidity has made timely objection and unless the party
demonstrates actual prejudice to his cause and unless the
noncompliance is substantial. [Emphasis added.]

In the instant case, because the juror in question was a convicted felon, he

was not statutorily qualified to serve as a juror under MCL 600.1307a(1)(e).

However, as a result of the juror’s false answers on his juror questionnaire, neither

of the parties nor the trial court had any knowledge of the juror’s felony

convictions, and, thus, the parties did not challenge the juror pursuant to MCR

2.511(D)(1) and the trial court did not discharge the juror pursuant to MCL

600.1337 and MCR 6.412(D)(2). Accordingly, the issue here is whether

defendant is entitled to a new trial as a result of this convicted felon having served

on his jury.

6

 Although a criminal defendant has a constitutional right to be tried by an

impartial jury, US Const, Am VI;4 Const 1963, art 1, § 20,5 a criminal defendant

does not have a constitutional right to be tried by a jury free of convicted felons.6

4
“In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury . . . .” US Const, Am VI.
5
“In every criminal prosecution, the accused shall have the right to a
speedy and public trial by an impartial jury . . . .” Const 1963, art 1, § 20.
6
In United States v Uribe, 890 F2d 554, 562 (CA 1, 1989), the United
States Court of Appeals for the First Circuit held that a “statutory violation--
allowing a convicted felon to serve-- did not implicate the fundamental fairness of
the trial or the defendants’ constitutional rights.” “The fact that a juror technically
should have been disqualified, and was not, does not automatically require a new
trial.” Id. Instead, under such circumstances, the defendant is required to prove
prejudice. Id.; see also 47 Am Jur 2d, Jury, § 152, p 759 (“The Sixth Amendment
does not require automatic reversal of every conviction reached by a jury that
included a felon.”); Anno: Disqualification or exemption of juror for conviction of,
or prosecution for, criminal offense, 75 ALR5th 295, 310, § 3[b] (stating that
several courts have “held that the constitutional right to a fair and impartial jury
was not violated by the . . . failure to exclude convicted felons”); United States v
Barker, 1999 US App LEXIS 9459, *3 (CA 4, 1999) (“Although convicted felons
are statutorily excluded from jury service, a criminal defendant does not have a
corresponding constitutional right to have convicted felons absolutely barred from
serving on his jury. The Sixth Amendment only requires that the jury be free from
bias.”) (citation omitted); Coleman v Calderon, 150 F3d 1105, 1117 (CA 9, 1998)
(“The Sixth Amendment does not bar ex-felons from jury service.”), overruled on
other grounds 525 US 141 (1998); Coughlin v Tailhook Ass’n, 112 F3d 1052,
1059 (CA 9, 1997) (“[T]he participation of a felon-juror is not an automatic basis
for a new trial.”); United States v Boney, 314 US App DC 287, 289; 68 F3d 497
(1995) (“[T]he Sixth Amendment does not absolutely bar felon-jurors. Rather, the
appropriate remedy for an allegation of juror bias is to hold an evidentiary hearing
in order to determine whether the juror’s failure to disclose his felon status
resulted in ‘actual bias’ to the defendant.”) (citation omitted); United States v
Humphreys, 982 F2d 254, 261 n 5 (CA 8, 1992) (“‘The Sixth Amendment right to
an impartial jury does not require an absolute bar on felon-jurors.’”) (citation
omitted). The fact that before MCL 600.1307a(1)(e) was amended in 2002,
convicted felons who had already served their sentences were qualified to serve as
7

Instead, the right to a jury free of convicted felons is granted by statute. And by

statute, a violation of this “right” only requires a new trial if the defendant

demonstrates that such a violation “actual[ly] prejudice[d]” him. MCL

600.1354(1).7

A juror’s failure to disclose information that the juror should have disclosed

is only prejudicial if it denied the defendant an impartial jury.8 “[Defendants] are

jurors underscores that the “right” to a jury free of convicted felons is not a
constitutional right.
7
At oral argument before this Court, defense counsel argued that defendant
was denied his right to a 12-member jury, see Const 1963, art 1, § 20; MCR
6.410(A), because the convicted felon was not qualified to serve as a juror. First,
this issue is unpreserved, as defendant did not raise it until oral argument before
this Court. Second, defendant fails to recognize that although MCL
600.1307a(1)(e) provides that a convicted felon is not qualified to serve as a juror,
MCL 600.1354(1) provides that a violation of this rule “shall not . . . affect the
validity of a jury verdict unless the party . . . claiming the
invalidity . . . demonstrates actual prejudice . . . .” The Legislature was free to
decide to either allow or not allow convicted felons to serve as jurors.
Accordingly, it was likewise free to allow a jury verdict obtained from a jury that
included a convicted felon to not be automatically invalidated. That is, the
Legislature was free to provide, as it did, that a 12-member jury that includes a
convicted felon is nevertheless a 12-member jury. Furthermore, if the defendant
were correct that every conviction that was obtained from a jury with an
unqualified juror on it had to be reversed, all jury verdicts would be second-
guessed. That is, every jury verdict in the state of Michigan would be contingent
upon a court subsequently determining that none of the jurors who sat on the jury
was statutorily disqualified for one reason or another.
8
Contrary to the dissent, we do “address how the ‘actual prejudice’
standard for purposes of [MCL 600.1354(1)] should be defined.” Post at 17. To
repeat, a juror’s failure to disclose information that the juror should have disclosed
constitutes “actual prejudice” if it denied the defendant an impartial jury.
Although we recognize that it may be difficult, although not impossible, for a
defendant to establish that he was “actually prejudiced,” the Legislature could not
have been clearer that a defendant is not entitled to a new trial unless the
8

not entitled to a new trial unless the juror’s failure to disclose denied [the

defendants] their right to an impartial jury.” McDonough Power Equip, Inc v

Greenwood, 464 US 548, 549; 104 S Ct 845; 78 L Ed 2d 663 (1984). “‘The

misconduct must be such as to reasonably indicate that a fair and impartial trial

was not had . . . .’” People v Nick, 360 Mich 219, 230; 103 NW2d 435 (1960),

quoting 39 Am Jur, New Trial, § 70, p 85.9

In Froede v Holland Ladder & Mfg Co, 207 Mich App 127, 135; 523

NW2d 849 (1994), the Court of Appeals held that actual prejudice was established

because the juror at issue had deliberately misrepresented her criminal history on

the juror questionnaire and had previously hired an assassin to kill a drug

informant who had agreed to testify against the juror’s ex-husband (a notorious

drug kingpin). However, the Court of Appeals “caution[ed] that our opinion is not

to stand for the proposition that prejudice will always be found when a convicted

felon makes a misrepresentation on a juror questionnaire or at voir dire.” Id. The

Court of Appeals clearly indicated that its bases for finding actual prejudice were

defendant “demonstrates actual prejudice to his cause . . . .” MCL 600.1354(1).
Unlike the dissent, we are simply unwilling to disregard this clear directive from
the Legislature.
9
When information that affects a juror’s qualifications to sit as a juror is
discovered after the trial, “most states . . . require a showing of juror bias” before
they will grant the defendant a new trial. Note, When jurors lie: differing
standards for new trials, 22 Am J Crim L 733, 737 (1995).
9

the juror’s deliberate misrepresentation and the nature of the juror’s criminal

history, i.e., she hired an assassin to kill a potential witness. Id.10

In People v Carey, 110 Mich App 187, 193; 312 NW2d 205 (1981), the

Court of Appeals held that the trial court did not err in failing to declare a mistrial

when it was discovered shortly after deliberations had begun that one of the jurors

was a convicted felon, in part because defendant did not demonstrate that he had

been actually prejudiced. In reaching this conclusion, the Court of Appeals relied

on the fact that the “juror testified that his convictions would not affect his ability

to render an impartial verdict.” Id.11

As we explained earlier, defendants have a constitutional right to an

impartial jury. However, as Justice Cooley, writing for this Court, explained,

jurors are “presumed to be . . . impartial, until the contrary is shown.” Holt v

10
The instant case is obviously distinguishable from Froede. Unlike the
juror in Froede, the juror here did not deliberately misrepresent his criminal
history. Rather, the trial court stated, “I don’t find that he was attempting to be
deceitful or that he had any ulterior motive in answering these questions that way,”
and we have no reason to believe that the trial court clearly erred in making such a
finding. In addition, unlike the juror in Froede, the juror here had never been
convicted of any crimes involving tampering with the administration of justice.
11
Likewise, in People v Johnson, 245 Mich App 243; 631 NW2d 1 (2001),
the Court of Appeals affirmed the defendant’s domestic violence conviction. The
defendant was not entitled to a new trial even though one of the jurors was a
complainant in a domestic violence prosecution, in part because the defendant had
not demonstrated that he was actually prejudiced. In the lead opinion, Judge
O’Connell explained that, “[o]n the basis of the juror’s assurances [that she could
be fair and impartial], and the trial court’s acceptance of her assurances, we see no
reasonable probability that the outcome of the case would have been different.”
Id. at 259-260 (opinion by O’Connell, J.).
10

People, 13 Mich 224, 228 (1865). The burden is on the defendant to establish that

the juror was not impartial or at least that the juror’s impartiality is in reasonable

doubt. Id.12

In Nick, the defendant argued that he was entitled to a new trial because one

of the jurors had failed to disclose the fact that her father was an attorney

practicing in the area and defense counsel had made some reference to her father

during the trial. This Court held that the defendant was not entitled to a new trial

because he had not established that the juror was not impartial. Nick, 360 Mich at

234. As this Court explained:

12
The pertinent paragraph from Holt, 13 Mich at 228, states:

[I]t must be borne in mind that a person called as a juror is
presumed to be qualified and impartial, until the contrary is shown.
The challenging party takes upon himself the burden of proving the
disqualification, and he does not relieve himself of that burden until
he has made out a prima facie case, or, in criminal cases, such a
case, at the least, as leaves the juror’s impartiality in reasonable
doubt. It is not sufficient for him to prove facts, from which vague
inferences of bias or favor can be drawn, and then demand that his
adversary shall be concluded unless he rebuts those inferences by
countervailing testimony.

Holt predated the enumeration of statutory disqualifications now contained in
MCL 600.1307a. The issue in Holt was whether the defendant was denied his
right to an impartial jury. Accordingly, Holt’s discussion of juror
“disqualification” was clearly not in reference to the statutory juror
disqualifications at issue in the instant case, but, rather, was in reference to a
juror’s ability to remain impartial. Contrary to the dissent, Holt very clearly states
that the burden is on the defendant to prove that the juror was not impartial or at
least that the juror’s impartiality is in reasonable doubt. Id. Although the dissent
concludes that “Holt requires less than actual bias,” post at 18 n 45, it fails to
explain how a defendant is to place the juror’s impartiality in reasonable doubt
without offering evidence in support of that proposition.

11

 “[I]t is well established that not every instance of misconduct
in a juror will require a new trial. The general principle underlying
the cases is that the misconduct must be such as to affect the
impartiality of the jury . . . . A new trial will not be granted for
misconduct of the jury if no substantial harm was done thereby to
the party seeking a new trial . . . . The misconduct must be such as
to reasonably indicate that a fair and impartial trial was not
had . . . .” [Id. at 230, quoting 39 Am Jur, New Trial, § 70, p 85.][13]
In the instant case, defendant’s only complaint about the juror at issue in

this case is that he is a convicted felon.14 However, defendant has offered no

13
Similarly, the United States Supreme Court has held:

[T]o obtain a new trial . . . , 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 would have
provided a valid basis for a challenge for cause. The motives for
concealing information may vary, but only those reasons that affect a
juror’s impartiality can truly be said to affect the fairness of a trial.
[McDonough, 464 US at 556 (second italics added).]

Although the federal standard requires a new trial if a “correct response would
have provided a valid basis for a challenge for cause,” this is because of the fact
that there is no federal rule listing specific grounds for challenges for cause;
instead, challenges for cause are only permitted upon a showing that the juror is
not capable of being impartial. Because Michigan’s rule does list grounds for
challenges for cause, and because one of these grounds is that the juror is not
qualified to sit as a juror (which qualifications do not pertain to a juror’s capability
of being impartial), our standard to obtain a new trial does not focus on whether a
“correct response would have provided a valid basis for a challenge for cause,”
but, instead, focuses on whether the juror was impartial. As the United States
Supreme Court has explained, “[defendants] are not entitled to a new trial unless
the juror’s failure to disclose denied [defendants] their right to an impartial jury.”
Id. at 549.
14
Defendant argues that the juror was excusable for cause under MCR
2.511(D)(1) to (4), (6), (10), and (12). However, his basis for all of these
arguments is the juror’s status as a convicted felon. In defendant’s motion for a
new trial, defendant only argued that defendant was excusable for cause under
MCR 2.511(D)(1) and (12). Nevertheless, even assuming that the defendant had
properly preserved all the grounds that he is now raising, we would still conclude
12

evidence that the juror was not impartial. In Holt, 13 Mich at 229, the Court

concluded that the juror’s own admission that he had formed a partial opinion

regarding the defendant’s guilt before the trial even began was not sufficient to

rebut that juror’s impartiality.15 If even such an admission is not sufficient to rebut

that defendant is not entitled to a new trial. That is, for the same reasons that we
conclude that defendant failed to establish that the juror was partial, defendant
failed to establish that the juror was “biased”; “show[ed] a state of mind that
[would] prevent [him] from rendering a just verdict”; had “formed a positive
opinion” about the case; had “opinions or conscientious scruples that would
improperly influence [his] verdict”; or was “interested.” MCR 2.511(D)(2) to (4)
and (12). In addition, the juror had not “already sat on a trial of the same issue”
and had not “complained of or . . . been accused by [defendant] in a criminal
prosecution.” MCR 2.511(D)(6), (10).
15
The dissent fails to recognize that its conclusion that a defendant is
entitled to a new trial any time a juror had a “preconceived opinion or feeling,”
post at 19, is wholly at odds with this Court’s decision in Holt, which held that the
“‘mere statement of a juror, that he has formed an opinion, is not sufficient to
disqualify him.’” Holt, 13 Mich at 230 (citation omitted). Furthermore, the
dissent’s statement that, because the juror in this case committed similar crimes,
he “must have had preconceived notions about defendant” is nothing more than
pure speculation. Post at 19. Finally, although we commend the dissent for its
resort to a dictionary, it completely ignores the context of the word that it is
attempting to define. That is, the dissent concludes that a juror is prejudiced if he
or she had a “preconceived opinion or feeling.” Post at 19. However, MCL
600.1354(1) does not use the word “prejudice” in terms of the juror’s “prejudice.”
Instead, it uses this word in terms of the defendant’s prejudice. MCL 600.1354(1)
states that a defendant is not entitled to a new trial unless the defendant
demonstrates “actual prejudice to his cause . . . .” In this context, it is clear that
the most applicable definition of “prejudice” is “damage or injury; detriment,”
Random House Webster’s College Dictionary (2001), which the dissent quotes
post at 19. A defendant is damaged or injured as a result of a juror withholding
relevant information only if that juror was not impartial.

Moreover, to disagree, as we do, with the dissenting justice on the
appropriate definition of a term having multiple definitions-- in this instance
“prejudice”-- is hardly, as the dissent asserts, to manifest an “unquestioning
confidence” in our own “ability to decide which dictionary definition of a word
13

the presumption of impartiality, we fail to see how a juror’s mere status as a

convicted felon can be considered sufficient to rebut that presumption.

Defendant has not offered any evidence to demonstrate that he was

prejudiced by the convicted felon’s presence on his jury.16 That is, defendant has

offered no evidence to establish that the juror was partial. The juror testified that

his status as a felon did not affect his deliberations and that he did not share this

information with the other jurors or try to improperly persuade the rest of the

jurors in any way.17 There is simply no evidence that this juror improperly

affected any other jurors. Furthermore, as the trial court explained, this juror

the Legislature intended.” Post at 19 n 48. Rather, it is simply to manifest a belief
that the dissenting justice is wrong.
16
The dissent likewise does not direct us toward any evidence of prejudice.
Instead, it simply presumes prejudice from the fact that the juror was statutorily
disqualified. However, if such a presumption were permitted, MCL 600.1354(1)
would be rendered meaningless. MCL 600.1354(1) specifically states that failure
to comply with the statutory qualifications does not require a new trial unless the
defendant demonstrates “actual prejudice.” Yet, under the dissent’s approach,
failure to comply with the statutory qualifications would always require a new
trial. Moreover, contrary to the dissent’s contention, “an appearance of potential
bias” is not “actual prejudice”; rather, it is, quite obviously, only an appearance of
prejudice. Post at 15 (emphasis added). MCL 600.1354(1), however, clearly
requires the defendant to demonstrate “actual prejudice.” (Emphasis added.) The
dissent criticizes us for equating “actual prejudice” and “actual bias.” However, it
fails to explain how a juror’s failure to disclose information that he or she should
have disclosed could actually prejudice a defendant if the juror was not actually
biased.
17
According to the trial court, the juror stated that “I had that experience,
but I can be essentially fair and objective; I can be fair to the parties in this case.”
14

would likely have been more harmful to the prosecutor than to defendant.18

Having been previously convicted of similar offenses, the juror, if anything, likely

would have been sympathetic towards defendant.19 For these reasons, we do not

18
The dissent contends that defendant is entitled to a new trial “irrespective
of which way [the juror’s] bias is expected to cut . . . .” Post at 22. However, this
contention is clearly erroneous given that MCL 600.1354(1) expressly states that
the defendant must demonstrate “actual prejudice to his cause . . . .” (Emphasis
added.)
19
As the trial court explained:

I’m sure that . . . had [the juror] answered those questions
accurately in the questionnaire[,] the prosecutor would not have
permitted him to stay on the jury. . . . I have fairly equal confidence
that a defense attorney, knowing that [a] person . . . convicted of a
crime is called to sit as a juror, especially a trial of someone who is
accused of a similar type of crime, would not exercise a . . .
challenge. [The] [d]efense attorney in this case . . . does not indicate
to this Court that he would have exercised a . . . challenge had he
known.

Many commentators have indicated that one of the rationales behind excluding
convicted felons from juries is the belief that convicted felons are biased against
the government. See, e.g., Binnall, EG1900 . . . The number they gave me when
they revoked my citizenship: Perverse consequences of ex-felon civic exile, 44
Willamette L R 667, 672 (2008) (“One such character trait of concern to those
advocating for felon exclusion from jury service is ‘that felons remain adversarial
towards the government and will sympathize unduly with any criminal
defendant.’”) (citation omitted); Note, A jury of one’s peers: Virginia’s restoration
of rights process and its disproportionate effect on the African American
community, 46 Wm & Mary L R 2109, 2136 (2005) (“The state’s policy argument
is based on the premise that a convicted felon may be sympathetic toward a
criminal defendant . . . .”); Kalt, The exclusion of felons from jury service, 53 Am
U L R 65, 74, 104 (2003) (“‘[A] person who has suffered the most severe form of
condemnation that can be inflicted by the state . . . might well harbor a continuing
resentment against “the system” that punished him and an equally unthinking bias
in favor of the defendant on trial, who is seen as a fellow underdog caught in its
toils.’ . . . [A] felon’s ‘former conviction and imprisonment [may] ordinarily
incline him to compassion for others accused of crime.’ In other words, a felon
15

believe that the trial court clearly erred in ruling that defendant had not

demonstrated that he was actually prejudiced by the convicted felon’s presence on

his jury.20

In addition, the presence of a convicted felon on defendant’s jury did not

constitute structural error. A structural error is a “fundamental constitutional

error[] that ‘def[ies] analysis by "harmless error" standards.’” Neder v United

States, 527 US 1, 7; 119 S Ct 1827; 144 L Ed 2d 35 (1999) (emphasis added;

citations omitted). Here, there was no constitutional error. As discussed above,

there is no constitutional right to have a jury free of convicted felons. Therefore,

that a convicted felon sat as a juror on defendant’s jury did not constitute a

structural error.

The Court of Appeals in the instant case relied heavily on People v

DeHaven, 321 Mich 327; 32 NW2d 468 (1948), People v Daoust, 228 Mich App

will be less willing, if not unwilling altogether, to subject another person to the
horrors of punishment that he has endured, and may engage in nullification. He
may also exhibit mistrust of police and prosecutors, and give unduly short shrift to
their testimony and arguments.”) (citations omitted); Note, Invaluable tool vs.
unfair use of private information: Examining prosecutors’ use of jurors’ criminal
history records in voir dire, 56 Wash & Lee L R 1079, 1088-1089 (1999) (“A
juror convicted of a crime is likely to harbor animosity towards the government . .
. . The potential for this animosity to ripen into a bias against the government’s
case increases when the crime underlying the juror’s conviction is similar to the
crime for which the defendant stands charged.”).
20
To answer the dissent’s question, post at 22, of course convicted felons
can be challenged by defendants for bias. However, a juror’s mere status as a
convicted felon does not by itself establish bias, and, thus, the challenging
defendant will have to come forth with some actual argument concerning such
bias.
16

1; 577 NW2d 179 (1998), People v Manser, 250 Mich App 21; 645 NW2d 65

(2002), and People v Crear, 242 Mich App 158; 618 NW2d 91 (2000), to

conclude that defendant is entitled to a new trial. However, none of those cases

involved the question that is at issue here: whether the presence of a convicted

felon on a defendant’s jury requires a new trial. Furthermore, none of those cases

involved the application of MCL 600.1354(1) because none involved “failure[s] to

comply with the provisions of [chapter 13 of the Revised Judicature Act, MCL

600.1300 et seq.],”21 and because DeHaven was decided before MCL 600.1354(1)

was even enacted.

In DeHaven, a case in which the defendant was charged with and ultimately

convicted of raping his 13-year-old stepdaughter, two related jurors failed to

disclose that one of their family members had been convicted of raping his 13-

year-old daughter. The trial court found that the jurors had not been dishonest

during voir dire, that they had indicated that they could fairly and impartially sit as

jurors, and that any prejudices the jurors did have would likely have benefitted the

defendant anyway. For these reasons, the trial court denied the defendant’s

motion for a new trial. This Court reversed.

After indicating that the “right to be tried by an impartial jury is a

constitutional guaranty,” DeHaven concluded:

21
The dissent altogether ignores that none of those cases involved the
application of MCL 600.1354(1).
17

 The normal person revolts at the thought of a father or
stepfather raping a 13-year-old girl. We are of the opinion that the
relationship of these two jurors to one who had committed a similar
crime was such that it deprived them of the capacity to act
impartially. Defendant has the right to a trial by an impartial jury.
We cannot say that he had such a trial. [DeHaven, 321 Mich at 334.]

As discussed earlier, DeHaven is distinguishable from the instant case

because the former did not involve a juror who was a convicted felon and it did

not involve MCL 600.1354(1).22 In addition, it appears that DeHaven reviewed de

novo the question whether the two jurors were biased, rather than for clear error.

As discussed above, an appellate court must review a trial court’s factual findings

for clear error, Cress, 468 Mich at 691, and the appellate court should only reverse

such findings if it is “left with a definite and firm conviction that a mistake has

been made.” Johnson, 466 Mich at 497-498. In DeHaven, the trial court

determined that the jurors were not biased, but, even if they were, such bias would

have benefitted the defendant. DeHaven, 321 Mich at 331. DeHaven, however,

did not even mention the trial court’s factual findings in its analysis, and clearly

22
In DeHaven, the jurors had a family member who was a convicted rapist
and a family member who was a rape victim, while, in the instant case, the juror
was himself convicted of assault with the intent to commit criminal sexual
conduct. As DeHaven indicated, the “normal person revolts at the thought of a
father or stepfather raping a 13-year-old girl.” DeHaven, 321 Mich at 334.
Accordingly, in DeHaven, it is significantly more likely that the jurors, if
anything, would have been prejudiced against the defendant because a 13-year-old
girl in their family had recently been a victim of such a revolting crime. On the
other hand, in the instant case, as discussed earlier, it is more likely that the juror,
if anything, would have been prejudiced in favor of the defendant because the
juror had himself been convicted of similar crimes, although obviously this is all
speculative.
18

reviewed the issue de novo. That is, DeHaven concluded that the jurors were

biased and that they were biased against the defendant, without giving any

significance to the fact that the trial court, which was obviously in the better

position to determine whether the jurors were biased and against which party, had

already concluded that the jurors were not biased, but, if they were, they were

biased in favor of the defendant.

DeHaven also reviewed de novo, rather than for an abuse of discretion, the

issue whether defendant was entitled to a new trial. As discussed earlier, a trial

court’s decision to deny a motion for a new trial must be reviewed for an abuse of

discretion. Cress, 468 Mich at 691. An abuse of discretion occurs only “when the

trial court chooses an outcome falling outside [the] principled range of outcomes.”

Babcock, 469 Mich at 269. In DeHaven, the trial court held that the defendant was

not entitled to a new trial. However, DeHaven, without giving any significance at

all to the trial court’s decision, held that the defendant was entitled to a new trial.

That is, DeHaven clearly engaged in de novo, rather than abuse of discretion,

review, as it should have.23

23
We are simply perplexed by the dissent’s assertion that the standard of
review is “irrelevant.” Post at 13. An appellate court cannot even begin to review
a trial court’s decision without knowing what the applicable standard of review is,
and the fact that an appellate court has employed a plainly inappropriate standard
should, at the least, cause future courts to hesitate before they rely on that prior
decision. Furthermore, contrary to the dissent, an appellate court cannot
effectively immunize itself from criticism for failing to apply the correct standard
of review by simply not stating what standard of review is being applied.
19

 Moreover, our “harmless error” jurisprudence has evolved significantly

since DeHaven was decided in 1948. As explained in People v Bell, 473 Mich

275, 294; 702 NW2d 128 (2005) (opinion by Corrigan, J.), “our harmless error

jurisprudence has evolved a great deal . . . .” Errors generally no longer require

automatic reversal. Id., citing People v Carines, 460 Mich 750, 774; 597 NW2d

130 (1999). Instead, a preserved, nonconstitutional error is not a ground for

reversal unless the defendant proves that it is “more probable than not that the

error was outcome determinative.” People v Lukity, 460 Mich 484, 495-496; 596

NW2d 607 (1999). Even a preserved, constitutional error is generally not a

ground for reversal if the prosecutor proves that the error was harmless beyond a

reasonable doubt. People v Anderson (After Remand), 446 Mich 392, 406; 521

NW2d 538 (1994).24 An unpreserved error is not a ground for reversal unless the

defendant can demonstrate that the error was plain, that it affected the outcome,

and that it resulted in the conviction of an actually innocent person or “‘“seriously

affect[ed] the fairness, integrity or public reputation of judicial

proceedings” . . . .’” Carines, 460 Mich at 763-764 (citations omitted).

With regard to the specific issue here, i.e., juror misconduct, this Court has

held that “a verdict in a criminal case should not be upset because of alleged

misconduct on the part of members of the jury unless ‘substantial harm’ has

resulted . . . .” Nick, 360 Mich at 230. “‘“[A litigant] is entitled to a fair trial but

24
As discussed earlier, a structural error that defies “harmless error”
analysis still requires automatic reversal. Anderson, 446 Mich at 405.
20

not a perfect one” for there are no perfect trials.’” McDonough, 464 US at 553

(citations omitted). “We have . . . come a long way from the time when all trial

error was presumed prejudicial and reviewing courts were considered ‘“citadels of

technicality.”’” Id. (citations omitted). “The harmless-error rules . . . embody the

principle that courts should exercise judgment in preference to the automatic

reversal for ‘error’ and ignore errors that do not affect the essential fairness of the

trial.” Id. DeHaven, however, made absolutely no mention of any “harmless

error” standard.

Finally, the crux of DeHaven’s holding was that a defendant has a

constitutional right to an impartial jury and, because the jurors at issue in DeHaven

lacked the capacity to act impartially, the defendant was entitled to a new trial.

DeHaven, 321 Mich at 334. There is no question that a criminal defendant has a

constitutional right to be tried by an impartial jury. US Const, Am VI; Const

1963, art 1, § 20. However, the instant question is whether the presence of a

convicted felon on defendant’s jury denied defendant his right to an impartial jury.

For all the reasons noted earlier, DeHaven is neither binding nor persuasive

precedent with regard to this question.25

In Daoust, the defendant was charged with two counts of first-degree child

abuse on the basis of injuries that he inflicted on his girlfriend’s daughter. On the

25
The dissent criticizes us for not overruling DeHaven. However, we do
not do so because we simply do not see it as being controlling with regard to the
issue here.
21

morning of the second day of defendant’s trial, during a break in the girlfriend’s

testimony, one of the jurors indicated that he may have attended junior high school

with the girlfriend. The trial court denied defendant’s request to remove the juror,

and the Court of Appeals held that defendant was not entitled to a new trial. The

Court of Appeals held that

when information potentially affecting a juror’s ability to act
impartially is discovered after the jury is sworn, the defendant is
entitled to relief only if he can establish (1) that he was actually
prejudiced by the presence of the juror in question or (2) that the
juror was properly excusable for cause. [Daoust, 228 Mich App at 9
(emphasis added); see also Crear, 242 Mich App at 167, which cited
this two-part test with approval.]

To the extent that in Daoust the Court of Appeals broadly states in dicta that a new

trial is always required whenever a juror would have been excusable for cause,

Daoust is wrong and is overruled.26 As discussed earlier, the proper inquiry is

whether the defendant was denied his right to an impartial jury. If he was not,

there is no need for a new trial.

IV. CONCLUSION

The trial court did not clearly err in finding that defendant failed to

establish that he was actually prejudiced by the presence of a convicted felon on

26
To the extent that Crear and Manser relied on Daoust for this
proposition, they are also wrong and overruled. The dissent contends that there is
no reason to overrule these decisions because they can be “read harmoniously with
§ 1354(1) in that, if a juror is excusable for cause and is left impaneled, actual
prejudice results.” Post at 15. However, as discussed in footnote 16 of this
opinion, presuming prejudice on the basis of a statutory disqualification would
render MCL 600.1354(1) meaningless.
22

his jury, and, thus, the trial court did not abuse its discretion when it denied

defendant’s motion for a new trial. Accordingly, we reverse the judgment of the

Court of Appeals and remand this case to the Court of Appeals for it to address

defendant’s remaining issues.

Stephen J. Markman
Clifford W. Taylor
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.

23

 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 135989

MICHAEL ALLEN MILLER,

Defendant-Appellee.

KELLY, J. (dissenting).

At issue in this case is whether defendant is entitled to a new trial because a

convicted felon served as a juror in his original trial. The majority concludes that

the trial court correctly denied defendant’s motion for a new trial. The court ruled

that defendant had failed to establish that he was actually prejudiced, pursuant to

MCL 600.1354(1), by the presence of a convicted felon on his jury. The majority

finds no clear error in this ruling. For the reasons set forth below, I believe that

the Court of Appeals properly reversed the trial court and granted defendant a new

trial. Its opinion should be affirmed.

I. FACTS AND PROCEDURAL HISTORY

The Ottawa County Prosecutor’s Office charged defendant with one count

of first-degree criminal sexual conduct (CSC I). The charge was based on

defendant’s alleged act of forcing his ex-girlfriend’s seven-year-old daughter to

perform fellatio on him. Following a two-day jury trial, defendant was convicted
as charged. Defense counsel then learned that one of the deliberating jurors, Jesse

Lara, was a registered sexual offender. Defendant filed a motion for a new trial

based on juror misconduct. Lara had answered “No” to a question on his juror

questionnaire regarding whether he had ever been a defendant in a criminal case.

The trial court held an evidentiary hearing. Lara testified that he had been

convicted of assault with intent to commit sexual conduct involving penetration

seven years before and criminal sexual conduct 15 years before. As a result of

these convictions, he was required to register with the Michigan Public Sexual

Offender Registry. Lara also testified that one of his victims was his sister. He

referred to the other as “an adopted child” who was “more like a niece.” Lara

further stated that he had completed and signed a juror questionnaire that

contained the following question: “Have you ever been a victim, witness, plaintiff,

or defendant in a criminal or civil suit?” The questionnaire also asked whether he

had been convicted of a felony, misdemeanor, or traffic violation. He answered

“No” to both questions.

Lara justified his “No” answers by stating that he had been untruthful

“because that was a long time ago.” He claimed that he thought his convictions

would remain on his record only “for maybe seven years.” Essentially, he claimed

that he believed his convictions to be too old to matter. Lara acknowledged that

he never asked for clarification from the trial judge or lawyers for either party

about whether he was required to divulge his prior criminal convictions.

Accordingly, he did not volunteer his convictions during voir dire.

2

 Lara claimed that he tried to be fair during the trial. He asserted that he

never tried to persuade the jury in any particular way because of his personal

criminal history. He said that he never disclosed his prior convictions during

deliberations or the fact that he had personal experience with how criminal cases

are handled.

The judge concluded that Lara was truthful during the evidentiary hearing.

The judge also determined that, had Lara answered the questions on the juror

questionnaire truthfully, the prosecutor would have had him excused from the

jury. The judge concluded:

I have fairly equal confidence that a defense attorney,
knowing that the person . . . convicted of a crime is called to sit as a
juror, especially a trial of someone who is accused of a similar type
of crime, would not exercise a peremptory challenge . . . .
Defendant does not indicate to this court that he would have
exercised a peremptory challenge had he known.
There is no evidence presented at this hearing or anything
from any other source that Mr. Lara’s presence on the jury resulted
in actual prejudice to the defendant.

Accordingly, the trial court denied defendant’s motion for a new trial.

The Court of Appeals reversed defendant’s conviction and remanded for a

new trial. The Court relied on People v DeHaven.1 It determined that, because the

crimes committed by defendant and Lara were similar in that they involved

criminal sexual conduct, defendant had not been afforded a fair and impartial jury.

Thus, defendant had been prejudiced within the meaning of § 1354(1).

1
People v DeHaven, 321 Mich 327; 32 NW2d 468 (1948).

3

 We granted leave to appeal2 to determine (1) whether the Court of Appeals

properly relied on DeHaven, (2) whether DeHaven has been superseded by

§1354(1), (3) whether a criminal defendant must establish actual prejudice

pursuant to § 1354(1) if the challenged juror was excusable for cause, (4) how the

actual prejudice standard for purposes of § 1354(1) should be defined, and (5)

whether Lara’s failure to disclose his status as a convicted felon, which

disqualified him from serving as a juror, constitutes structural error pursuant to

Neder v United States.3

II. ANALYSIS

A. Legal Background

Juror qualifications are set forth in several statutes relevant to this case.

MCL 600.1307a provides, in relevant part, that in order to qualify as a juror, a

person shall not have been convicted of a felony.4 Failure to comply with this

provision renders a potential juror challengeable for cause.5 Furthermore, “[i]f . . .

2
People v Miller, 481 Mich 851, 851-852 (2008).
3
Neder v United States, 527 US 1; 119 S Ct 1827; 144 L Ed 2d 35 (1999).
4
MCL 600.1307a(1)(e).
5
MCR 2.511(D) provides:

It is grounds for a challenge for cause that the person:

(1) is not qualified to be a juror;

(2) is biased for or against a party or attorney;

4

the court finds that a ground for challenging a juror for cause is present, the court

on its own initiative should, or on motion of either party must, excuse the juror

from the panel.”6 This rule was also codified in MCL 600.1337, which states,

“When the court finds that a . . . juror is not qualified to serve . . . , or is exempt

and claims an exemption, the court shall discharge him or her from further

attendance and service as a juror.” Thus, the Legislature has made clear that those

(3) shows a state of mind that will prevent the person
from rendering a just verdict, or has formed a positive opinion
on the facts of the case or on what the outcome should be;

(4) has opinions or conscientious scruples that would
improperly influence the person’s verdict;

(5) has been subpoenaed as a witness in the action;

(6) has already sat on a trial of the same issue;

(7) has served as a grand or petit juror in a criminal
case based on the same transaction;

(8) is related within the ninth degree (civil law) of
consanguinity or affinity to one of the parties or attorneys;

(9) is the guardian, conservator, ward, landlord, tenant,
employer, employee, partner, or client of a party or attorney;

(10) is or has been a party adverse to the challenging
party or attorney in a civil action, or has complained of or has
been accused by that party in a criminal prosecution;

(11) has a financial interest other than that of a
taxpayer in the outcome of the action;

(12) is interested in a question like the issue to be tried.
6
MCR 6.412(D)(2).

5

not meeting the relevant qualifications for jury service are not to be included on a

jury. Finally, MCL 600.1354(1) provides, in pertinent part:

Failure to comply with the provisions of this chapter shall not
. . . affect the validity of a jury verdict unless the party . . . claiming
invalidity has made timely objection and unless the party
demonstrates actual prejudice to his cause and unless the
noncompliance is substantial.

Michigan courts have examined the legal effect of violations of these

principles on numerous occasions. The facts of the leading case on the issue,

People v DeHaven, are strikingly similar to those of the instant case. In DeHaven,

the defendant was charged with the rape of his 13-year-old stepdaughter.7 The

case was submitted to a jury, which returned a guilty verdict.8 The defendant

moved for a new trial, arguing that two of the jurors had failed to disclose that a

member of their family had been imprisoned for a similar offense.9 The trial court

denied the motion, ruling that the jurors had not been prejudiced and that nothing

indicated that, if they had been prejudiced, it would likely have benefited the

defendant.10 The defendant appealed. This Court held that the relationship of the

two jurors to a person who had committed a similar crime deprived them of the

7
DeHaven, supra at 329.
8
Id.
9
Id.
10
Id. at 331.

6

capacity to act impartially.11 Because criminal defendants are guaranteed the right

to a trial by an impartial jury by both the United States12 and Michigan

constitutions,13 the Court unanimously reversed defendant’s judgment of

conviction.14

This Court revisited the issue of juror misconduct in People v Hannum.15

The defendant in Hannum was granted a new trial when a member of the jury

failed to disclose that he was a township police officer and special county sheriff’s

deputy. The Court, relying on DeHaven, held that the defendant had been denied

a fair trial by an impartial jury because the lack of disclosure of the pertinent fact

11
Id. at 334.
12
US Const, Am VI.
13
Const 1963, art 1, § 20.
14
DeHaven, supra at 335. The Court also noted:

Examination into the competency of a juror, when he
is challenged, is essentially a taking of such prospective
juror’s testimony to determine whether he has the statutory
qualifications of a juror and is free from prejudice or interest,
and to ascertain whether it is wise and expedient to exercise
the right of peremptory challenge given to parties by the
law. . . . He is not, however, the judge of his own
competency, impartiality, and freedom from prejudice, in the
sense that his testimony is to be accepted as final and
conclusive of the issue, and no statute can clothe him with
such judicial discretion and power. His competency is left to
the determination of the court or of triors, who are not bound
by his testimony but may rely on other evidence. [Id. at 332
(internal citation and quotation marks omitted).]
15
People v Hannum, 362 Mich 660; 107 NW2d 894 (1961).

7

“can hardly be thought to have insured an impartial trial any more so than in

DeHaven . . . .”16 Furthermore, the Court noted, “[w]ould any experienced trial

lawyer, or, for that matter, the public generally, feel differently as to the capacity

of a local police officer to sit as a juror and consider impartially the case of a

defendant charged with a crime committed in the community? We think not.”17

The Court of Appeals addressed the same issue in People v Manser.18

Manser involved a defendant charged with CSC I and CSC II.19 The defendant

was convicted of both charges.20 On appeal, he argued that he was deprived of his

constitutional right to a fair and impartial jury because the trial court had refused

to remove a juror. The juror had failed initially to disclose information relevant to

her ability to sit objectively in judgment of the case.21 Specifically, the juror had

failed to disclose that she had engaged in “inappropriate behavior” with a cousin

when both were preteens.22

16
Id. at 667. While I recognize that the juror in Hannum was not statutorily
disqualified, as is Lara, it is noteworthy that the Court held that the defendant had
been denied a fair trial.
17
Id. at 666.
18
People v Manser, 250 Mich App 21; 645 NW2d 65 (2002).
19
Id. at 23-24.
20
Id. at 24.
21
Id.
22
Id. at 26.

8

 The Court of Appeals agreed that this failure to disclose warranted a new

trial. It held that, had the juror disclosed during voir dire the inappropriate sexual

conduct with her cousin, grounds for dismissal for cause would have been

presented.23 Moreover, the Court noted that, had the information been revealed

during voir dire, a peremptory challenge would have been used if a challenge for

cause had been denied.24 Finally, the Court held that seating a juror who withheld

information that should have been revealed presents too great a risk that the jury

will not be impartial:

By failing to be forthcoming with her account of the
inappropriate sexual conduct she experienced with an older relative,
[the juror] subverted the efforts of the trial court and defense counsel
to assure that persons having that kind of background were not
seated as factfinders. This resulted in at least an appearance of
impropriety. . . .[25]

The Court concluded by stating that, under these circumstances, the trial court

should have granted defendant some form of relief. It should have either

considered the propriety of proceeding with 11 jurors or granted defendant a

mistrial.26

23
Id. at 28.
24
Id.
25
Id. at 30.
26
Id.

9

 In People v Daoust,27 the Court of Appeals addressed whether the trial

court deprived the defendant of a fair trial by refusing to remove a juror during

trial. At a break in a witness’s testimony, one of the jurors indicated to a bailiff

that he may have attended the same junior high school as the witness.28 The

defendant conceded that there were no circumstances justifying the juror’s

discharge for cause. However, he argued that he would have exercised a

peremptory challenge to remove the juror had he known of the juror’s link to the

witness during voir dire.29 The trial court denied the defendant’s request to

remove the juror.30 On appeal, the Court of Appeals held:

[W]hen information potentially affecting a juror’s ability to
act impartially is discovered after the jury [has been] sworn, the
defendant is entitled to relief . . . if he can establish (1) that he was
actually prejudiced by the presence of the juror in question or (2)
that the juror was properly excusable for cause.[31]

The defendant in Daoust did not argue that he had been actually prejudiced or that

the juror was removable for cause. Hence, the Court held that he was not entitled

to relief.32

27
People v Daoust, 228 Mich App 1; 577 NW2d 179 (1998).
28
Id. at 6.
29
Id.
30
Id.
31
Id. at 9. The Court of Appeals reiterated this holding in People v Crear,
242 Mich App 158, 167; 618 NW2d 91 (2000).
32
Daoust, supra at 9.

10

 B. Application

The aforementioned cases demonstrate a longstanding adherence to a

principle expounded in both the federal and state constitutions: criminal

defendants are entitled to a fair and impartial jury. I believe that defendant was

not afforded this right given the fact that Lara was allowed to participate as a juror.

Under § 1307a, to qualify as a juror, a person must not have been convicted of a

felony. Because Lara had been convicted of CSC, he was admittedly not qualified

to be a juror. Defendant raised the issue of Lara’s disqualification as soon as

Lara’s convictions became known.

Pursuant to § 1354(1), noncompliance with juror qualifications results in

error requiring reversal only if the noncompliance actually prejudices the

defendant and if the noncompliance is substantial. It remains undisputed that

Lara’s disqualification is a substantial violation under § 1354(1). He failed to

satisfy the criteria necessary to serve as a juror set forth in MCR 2.511(D) and

§ 1307a. The question then becomes whether defendant was actually prejudiced

within the meaning of § 1354(1).

DeHaven and its progeny are reasonably similar to this case. In DeHaven,

the defendant was convicted of rape for engaging in sexual conduct with his

stepdaughter. During voir dire, the court asked prospective jurors whether any had

experience with a criminal case and whether any of their relatives had been

involved in a similar case involving rape. All answered in the negative, including

a juror who had a family member who had been convicted of raping a minor. A

11

second juror, who was also related to the family member, also denied any such

prior experience. In reversing the conviction and remanding for a new trial, this

Court stated:

In the case at bar the jurors stated on voir dire examination
that they could fairly and impartially sit as jurors in the case; and
that there was no other case that they had heard about which would
influence their verdict. . . . We are of the opinion that the
relationship of these two jurors to one who had committed a similar
crime was such that it deprived them of the capacity to act
impartially. Defendant has the right to a trial by an impartial jury.
We cannot say that he had such a trial.[33]

Here, the crimes of which defendant is accused and that Lara committed

relate to CSC. Moreover, Lara himself committed the crimes, not merely a

relative, as in DeHaven. The Court of Appeals in this case recognized the

similarity, holding:

Here, the crimes committed by . . . defendant and the
challenged juror were also similar in nature [like those in DeHaven],
relating to criminal sexual conduct. Moreover, the challenged juror
himself had committed the crimes, not just a relative as in DeHaven.
Further, while the challenged juror proclaimed that he was fair,
impartial, and listened to the evidence, arguments, and instructions,
the jurors in DeHaven also claimed an ability to be fair and
impartial, yet the Supreme Court reversed. Accordingly, defendant
was not afforded a fair and impartial jury and was thus
prejudiced.[34]

Thus, the Court of Appeals explicitly determined that defendant had been

prejudiced. Given the obvious factual similarities between the two cases, I believe

33
DeHaven, supra at 334.
34
People v Miller, unpublished opinion per curiam of the Court of Appeals,
issued January 17, 2008 (Docket No. 273488), at 3 (emphasis added).

12

the Court of Appeals properly relied on DeHaven. Likewise, although the

challenged jurors in DeHaven indicated that they had been fair, impartial, and had

listened to the evidence, so too did Lara. However, as the DeHaven Court found

this effort to be insufficiently protective of the defendant’s right to a fair and

impartial jury, the Court of Appeals properly granted defendant a new trial.35

The majority struggles at length to distinguish DeHaven and Daoust. It

claims that DeHaven used a de novo standard of review of the trial court’s finding

that the two jurors were biased, rather than the clear error standard used today.36

According to the majority, the DeHaven Court also used a de novo standard of

review when deciding defendant was entitled to a new trial.37 At the outset, the

standard of review in DeHaven is irrelevant to the issue presently before the Court

35
The majority claims that because DeHaven was decided before the
enactment of MCL 600.1354(1), it should not be considered controlling. This
argument is unpersuasive for several reasons. First, in Crear, supra at 167, the
Court of Appeals, relying on Daoust (which relied on DeHaven) held that a
defendant must establish (1) that he was actually prejudiced by the presence of the
juror in question or (2) that the juror was properly excusable for cause. Crear was
decided in light of § 1354(1) in 2000 and implicitly acknowledged the import of
§ 1354(1) by recognizing that actual prejudice must be shown to warrant a new
trial. Second, Crear can be read harmoniously with § 1354(1) by incorporating
the failure to remove a juror excusable for cause into the parameters of actual
prejudice within the meaning of the statute. This is entirely possible, especially
given the lack of a definition for “actual prejudice” in § 1354(1).
36
Ante at 18.
37
Ante at 19.

13

of whether defendant was denied a fair and impartial trial in this case.38 More

importantly, however, wholly absent from DeHaven is any language indicating

which standard of review was used. Therefore, the majority’s attempt to

distinguish DeHaven on this basis is unavailing.39

38
The majority mistakenly mingles the standard of review in this case with
the standard of review used in DeHaven. I agree that the proper standard in this
case is review of the trial court’s factual findings for clear error. The decision on
the motion for a new trial is reviewed for an abuse of discretion. My agreement
ends there.

It is not relevant what standard the DeHaven Court applied. DeHaven is
devoid of any indication of the deference (or lack thereof) paid to the trial court’s
decision in that case. Thus, it is mere conjecture for the majority to state that the
DeHaven Court improperly engaged in a review de novo. Ante at 18-19.
39
The majority opinion seems to overrule DeHaven because it applied the
wrong standard of review. Yet, the majority avoids outright abrogation of
DeHaven by simply stating that DeHaven’s holding is neither binding nor
persuasive precedent.

Furthermore, the majority discards DeHaven’s reasoning because the case
was decided before the enactment of § 1354(1). Yet, the majority relies on Froede
v Holland Ladder & Mfg Co, 207 Mich App 127; 523 NW2d 849 (1994), and
People v Carey, 110 Mich App 187; 312 NW2d 205 (1981), as support for its
framing of “actual prejudice.” This reliance makes little sense given that these
cases also predate § 1354(1). See also People v Graham, 84 Mich App 663; 270
NW2d 673 (1978), which held that the party moving for a new trial must present
proof of actual prejudice. If not, it must satisfy the trial court that the moving
party would have successfully challenged for cause or otherwise dismissed the
juror had the truth been revealed before trial.

I conclude that DeHaven is precedential with respect to Lara’s lack of
qualification to serve as a juror and defendant’s entitlement to a new trial.
DeHaven should either be read as controlling or should be overruled. If DeHaven
is not applicable here, then it is not applicable anywhere and should not be left
hanging in the wind.

14

 With respect to Daoust, the majority makes no attempt to distinguish the

relevant facts. Yet it concludes that, to the extent that Daoust holds that a new

trial is required whenever a juror would have been excusable for cause, it is

overruled.40 However, there is no need for the majority to overrule Daoust. It

could be read harmoniously with § 1354(1) in that, if a juror is excusable for cause

and is left impaneled, actual prejudice results.

Furthermore, I believe Manser provides guidance and demonstrates the

soundness of the Court of Appeals decision in this case. A juror in Manser

indicated after trial had begun that she had engaged in conduct similar in nature to

that alleged against the defendant. Despite the defendant’s attempt to remove the

juror, the court continued the trial with the juror impaneled. In reversing the

defendant’s conviction, the Court noted that the juror was removable for cause and

thus defendant was entitled to a new trial. Although the Court did not use the

word “prejudice,” its holding essentially stated that the defendant was prejudiced

by a juror whose presence created the appearance of a potential bias. Here, Lara

would have been removable for cause pursuant to MCR 2.511(D) had he disclosed

his previous convictions. Moreover, it is without question that Lara’s presence

40
Ante at 22.

15

created, at a minimum, an appearance of potential bias.41 Therefore, the Court of

Appeals properly granted defendant’s motion for a new trial.

Finally, the majority attempts to distinguish Froede v Holland Ladder &

Mfg Co.42 Froede involved a juror who misrepresented her criminal history on the

juror questionnaire. The juror had hired an assassin to kill a drug informant who

had agreed to testify against the juror’s ex-husband. In applying § 1354(1), the

Court of Appeals granted a new trial because it held that the juror’s criminal

conviction and misrepresentation of her criminal background constituted actual

prejudice.

The Court pointed out several noteworthy considerations that bear on this

case. First, Froede was a civil case. Although MCR 6.412(D)(2) requires that a

trial court in a criminal case excuse a juror challenged for cause under MCR

2.511(D), there is no similar requirement in civil matters. As the Court noted, “we

find that the existence of potential biases or prejudices of a juror with a prior

felony conviction is substantially lessened in a civil case as opposed to a criminal

case.”43 Thus, explicit in the Court’s holding is its recognition that, in criminal

41
The majority conflates “actual prejudice” with “actual bias.” Ante at 14 n
16. Section 1354(1) requires a showing of actual prejudice. This is not the same
as actual bias. Indeed, as recognized explicitly by Holt v People, 13 Mich 224
(1865), and implicitly by DeHaven, Hannum, Manser, Daoust, Crear, and Froede,
the appearance of partiality or bias creates a reasonable doubt sufficient to satisfy
§ 1354(1).
42
Froede, supra.
43
Id. at 133.

16

cases, the potential for a convicted felon’s bias to reveal itself is higher than in

civil cases. Second, the Court noted that the conviction could “reflect on the

juror’s honesty, and, given the nature of the conviction, th[e] juror may well have

infected the jury’s deliberations.”44

Based as it was on the principles expounded in DeHaven, Hannum,

Manser, Daoust, Crear, and Froede, the Court of Appeals decision to grant

defendant a new trial was well reasoned. Moreover, the Court explicitly held that

defendant was prejudiced and thus satisfied the statutory requirement set forth in §

1354(1).

III. RESPONSE TO THE MAJORITY

The majority opinion is deficient in several respects. First, it fails to

address how the “actual prejudice” standard for purposes of § 1354(1) should be

defined.45 As stated earlier, § 1354(1) requires a finding of actual prejudice

44
Id. at 134. In Froede, the trial court found that the juror had deliberately
misrepresented her criminal history. In this case, the trial court found that Lara
was not “attempting to be deceitful or that he had any ulterior motive in answering
the[] [jury] question[naire].” The majority distinguishes Froede on this basis.
While the trial court found that Lara’s responses lacked deceit, Lara had no
incentive to state that he had been dishonest or deliberately misrepresented his
criminal history. Thus, absent an admission by Lara, the trial court had no basis
on which to determine whether Lara had been deceitful in answering the
questionnaire.
45
The closest the majority comes to defining actual prejudice is its
assertion that juror misconduct is only prejudicial if it denies a defendant an
impartial jury. Ante at 8. Essentially, this is an outcome-determinative standard in
disguise. The majority further opines that “[t]he burden is on the defendant to
establish that the juror was not impartial . . . .” Ante at 11, citing Holt v People, 13

17

resulting from an error in order for reversal to be required. However, nowhere in

that section is there a definition of “actual prejudice.”

DeHaven and its progeny, including Daoust and Crear, suggest that a

defendant need only establish (1) that he was either actually prejudiced by the

disqualified juror’s participation or (2) that the juror was excusable for cause.

This line of cases seems to suggest that actual prejudice occurs automatically upon

a juror’s improper participation in a case. While § 1354(1) and caselaw may seem

to offer different interpretations of what a defendant must establish to obtain a new

Mich 224, 228 (1865). However, Holt requires a defendant to show only that a
juror’s impartiality is in reasonable doubt. Id. at 227. Thus, contrary to the
majority’s analysis, Holt does not either explicitly or implicitly require a defendant
to prove actual bias by the disqualified juror. Yet actual bias is what the majority
requires in this case. Indeed, although the majority correctly cites Holt, it fails to
recognize that the reasonable doubt standard in Holt requires less than actual bias
to establish actual prejudice. Compare ante at 11 with ante at 16 n 16. The
majority, under the guise of statutory interpretation, is effectively legislating from
the bench by crafting the words “actual bias” into § 1354(1), when no such
language exists.

Furthermore, the majority’s analysis fails to provide guidance to lower
courts. Specifically, it leaves unresolved how a defendant is to prove actual
prejudice (or partiality as the majority would have it) absent an admission by a
juror that he possessed bias in rendering a verdict.

The majority also selectively cites Note, When jurors lie: Differing
standards for new trials, 22 Am J Crim L 733, 737 (1995), for the proposition that
some states require a showing of juror bias before they will grant a defendant a
new trial. Ante at 9 n 9. However, this article reveals that the states employ
different standards including (1) a showing of possible bias, (2) a showing that the
juror would have been struck for cause had the undisclosed information been
revealed on voir dire, and (3) a showing of no bias at all. See TK Stanley, Inc v
Cason, 614 So 2d 942, 949 (Miss, 1992); Gainesville Radiology Group v Hummel,
263 Ga 91, 93; 428 SE2d 786 (1993); Wright v Bernstein, 23 NJ 284, 294-295;
129 A2d 19 (1957).

18

trial, it is unquestionable that one must show actual prejudice. However, because

the statute does not offer its own definition of “actual prejudice,” a starting point

for analysis is the dictionary definition of the words. “Actual” means “(1) existing

in act, fact, or reality; real” and “(2) existing now; present; current.”46 “Prejudice”

means:

(1) an unfavorable opinion or feeling formed beforehand or
without knowledge, thought, or reason. (2) any preconceived
opinion or feeling, either favorable or unfavorable. (3) unreasonable
feelings, opinions, or attitudes, [especially] of a hostile nature,
regarding a racial, religious, or national group. (4) such attitudes
considered collectively . . . . (5) damage or injury; detriment . . . . (6)
to affect with a prejudice.47

On the basis of these definitions, a defendant should have to demonstrate an

existing unfavorable opinion or the presence of a preconceived opinion or feeling,

whether favorable or unfavorable.48

Applying this requirement to this case, the Court of Appeals should be

affirmed. Lara must have had preconceived notions about defendant, whether

46
Random House Webster’s College Dictionary (2001).
47
Id. (emphasis added).
48
Contrary to the majority’s belief, this standard does not contradict Holt.
Holt requires that a defendant show only that a juror’s impartiality is in reasonable
doubt. This proof is merely a means to demonstrate actual prejudice as required
by § 1354(1).

In any event, it is noteworthy that the majority exhibits its usual
unquestioning confidence in its ability to decide which dictionary definition of a
word the Legislature intended. See, e.g., Liberty Hill Housing Corp v City of
Livonia, 480 Mich 44, 57-58; 746 NW2d 282 (2008). Plucking one definition
from a basket of many is nothing less than speculation in the guise of omniscience.

19

favorable or unfavorable, merely because he had committed crimes similar to

those charged here.49 This reasoning is also in line with DeHaven, Hannum,

Manser, Crear, and Daoust.

This result also makes practical sense, which highlights the second flaw in

the majority opinion. Trial courts must exclude unqualified jurors if facts are

present indicating that a juror is unfit for service.50 It logically follows, then, that

a defendant should not be burdened with proving prejudice beyond what a court

must find to exclude an unqualified juror. To do so would allow jurors to conceal

relevant information and then sit on juries anyway. In effect, this would create an

insurmountable standard for a defendant to overcome.

Promoting juror honesty is a laudable goal and one that is essential to the

selection of a fair and impartial jury in criminal cases. It is likewise essential to

the fair administration of justice. If the standard for obtaining a new trial based on

juror dishonesty is so high that it can rarely be established, then there is no remedy

49
I refute the majority’s contention that it is “pure speculation” to believe
that an ex-felon would have some sort of “prejudice,” as defined above, about a
defendant. Ante at 13 n 15. One convicted of the same crime charged against a
defendant would, at a minimum, be thoroughly familiar with the nature of the
crime(s) charged. The convict would know how such crimes are committed, the
emotions and feelings associated with the guilt accompanying the criminal act(s),
and criminal procedure in general.
50
MCR 6.412(D).

20

for defendants convicted by dishonest jurors.51 It is for this reason that the

majority opinion becomes unworkable and manifestly unjust.

Furthermore, there is no indication that the Legislature intended such a

heightened standard. Section 1354(1) merely indicates that “actual prejudice”

must be shown. If jurors such as Lara sit on juries despite their lack of

qualifications, evidentiary hearings will be necessary to determine whether the

disqualified juror infected the entire jury. This would require the presence of all

deliberating jurors. Arguably, such a hearing would border on impeachment of a

verdict through cross-examination of the jurors regarding their deliberations, a

practice that is discouraged.52 The holding of such evidentiary hearings would

become extremely burdensome on the court system. Yet it remains unclear in

what other way a defendant could meet an actual prejudice burden under the

51
Section 1354(1) requires a showing of actual prejudice. However, the
majority opinion interprets actual prejudice so narrowly that prejudice will be
impossible to prove, absent a juror admitting actual bias. Ante at 13. This
standard is too strict. Often, jurors will not admit bias, especially after rendering a
verdict, because they have a stake in defending their decision. Furthermore, the
majority opinion implies that anytime a former juror states that he or she was
unbiased, a defendant cannot demonstrate prejudice. Presumed bias must be
accepted in some instances, and this is one such instance. In fact, the majority
opinion’s exceedingly narrow standard effectively renders the jury qualification
standards meaningless. Any verdict that was rendered with an unqualified juror is
unassailable because simply showing a lack of qualification(s) is not enough to
show prejudice. I believe that the juror qualifications set forth in MCR 2.511(D)
should be given more force.
52
Consumers Power Co v Allegan State Bank, 388 Mich 568; 202 NW2d
295 (1972).

21

majority’s standard. Essentially, overturning a verdict because of juror

misconduct becomes impossible.

Finally, the majority engages in a purely speculative exercise in its attempt

at labeling Lara and other unqualified jurors who have been convicted of felonies,

as favorable to criminal defendants. Without question, criminal defendants are

entitled to a fair trial, which includes the impaneling of an impartial jury. The

seating of a biased juror, irrespective of which way his or her bias is expected to

cut, is an error in the eyes of the law. This is evidenced by statutes and court rules

that seek to weed out such errors.53 Indeed, assuming—or guessing, as the

majority does—who benefits from the bias is folly. At some point, a juror’s past

experience must lead to a presumption of bias because of the juror’s inherent

knowledge from experience. In this case, this presumption exists because Lara’s

past experiences are so similar to the current defendant’s alleged crimes.

The majority wrongly speculates that convicted felons on juries will help

defendants. Moreover, it should not engage in any exercise that could harm the

administration of justice. Essentially, the majority opines that a convicted felon’s

bias is acceptable because it is assumed that most felons will be sympathetic

toward defendants. Is it now the law that all felons are assumed to be sympathetic

to defendants and thus they can never be challenged by defendants for bias?

Moreover, are felons’ biases always assumed against prosecutors, such that if the

53
The majority ignores the purpose of MCR 2.511(D) and MCL 600.1337.
These rules were set forth in an attempt to eliminate potential bias from juries.

22

parties’ positions in this case were reversed, the prosecutor would have a strong

claim of bias? Are felons so homogenous that such a broad generalization is

worthy of judicial codification? I think not.

IV. CONCLUSION

The Court of Appeals properly held that defendant was entitled to a new

trial. In doing so, the Court properly relied on DeHaven and its progeny for the

proposition that a convicted felon serving on a jury constitutes prejudice within the

meaning of § 1354(1). Accordingly, I would affirm the Court of Appeals and

remand this case to the trial court for a new trial.

Marilyn Kelly

Cavanagh, J. I concur with Justice Kelly’s result.

Michael F. Cavanagh

23