Jury Selection and Harmless Error

Hatfield v. Wal-Mart Stores, Inc., (08-3233) is an excellent example of the lack of  an effective remedy when a District Court fails to strike a juror for cause.  In this case, the District Court erroneously refused to strike two jurors for cause even though “[a]t the time of trial, one of the challenged prospective jurors . . . was employed as a lift mechanic at [Defendant] Wal-Mart. The other challenged juror . . . disclosed during voir dire that she was a current Wal-Mart employee and that she had previously worked at the store where the incident occurred.  . . . [She] also disclosed that she was once co-manager with  . . . the Wal-Mart corporate representative and witness, and she knew several other Wal-Mart employees on the witness list.”  The plaintiff was thus forced to use preemptory challenges to remove these witnesses and, by virtue of having exhausted her preemptory challenges, was forced to seat a jury that included a juror who worked with the wife of the defense lawyer, and a juror who had previously worked in grocery stores and the retail industry. Under a harmless error analysis, the Tenth Circuit found that the presence of these jurors ‘did not have a “substantial influence on the outcome of the trial,’ nor does it leave one in ‘grave doubt as to whether it had such effect.’  The Tenth Circuit appears to have reached this conclusion in part because “at the time Plaintiff did not object to the composition of the jury as seated.”