Katherine E. Hedges
An associate at Hage Hodes in Manchester practicing civil litigation and corporate law.

 No. 2017-0387
Oct. 12, 2018
Affirmed and remanded.

  • The Court reviewed whether the trial court unsustainably exercised its discretion or failed to apply the proper legal standard when ordering a new trial after evaluating the potential biases of two jurors post-verdict.


A jury convicted the defendant of simple assault and aggravated felonious sexual assault arising from charges that he touched the genitals of a 12-year-old client during a therapy session and two counts of unlawful mental health practice. The defendant’s attorney learned posttrial that two jurors failed to disclose that they were childhood victims of sexual assault, and the defendant moved for a new trial arguing that those jurors would have been excused for cause if the disclosure was made during voir dire. The jury questionnaires included the question: “Have you or has any member of your family been the victim of a crime?” The trial court asked the same question during voir dire, elaborated that the question included crimes for which no one was arrested. The two jurors in question stated they did not have any yes answers to the voir dire questions and that they would be fair and impartial. They were seated on the jury. One of those jurors was chosen as the foreperson. The fact that the two jurors had been victims of sexual assaults as children was discussed during jury deliberations.

At the hearing on the motion for a new trial, the foreperson testified that he did not identify as a victim, but he was sexually assaulted when he was young. He experienced severe emotional distress when he saw the perpetrator 50 years later. His business was a victim of other crimes that he did not disclose. The foreperson cooperated with the State’s post-trial investigation, but not the defendant’s. He also testified that he could not be neutral in a case involving an alleged sexual assault of a girl because he had a daughter (though he also had a son). Prior to trial, he corresponded with a female sexual assault survivor after reading her book, and he contacted a sponsor of proposed sexual assault legislation after the trial. The court granted the request for a new trial and found that the foreperson had at the very least a subjective bias that could not be set aside. It was a much closer call as to whether the other juror was biased, but her very emotional responses likely would have been cause for her to be excused if provided during voir dire.

The State asserted that the trial court exercised unsustainable discretion in considering information learned at the post-trial hearing, and it argued that the trial court should have applied a standard set forth in McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984). The Supreme Court assumed without deciding that the McDonough standard should have been used.

The Court considered the first prong of the McDonough test: whether the juror answered a voir dire question dishonestly. It determined that the trial court found several reasons to question the juror’s credibility and that it reached a sustainable conclusion that the foreperson responded dishonestly in voir dire when failing to disclose his assault and that his business was also a crime victim. The Court did not decide whether McDonough required a finding of intentional dishonesty, but found the trial court did make a sustainable finding of intent.

The Court then applied the second prong of the McDonough test: whether the dishonest response was influenced by bias or a desire to affect the verdict, thus prejudicing one of the parties and warranting excusal for cause. The trial court found that the foreperson’s demeanor and his actions before, during, and after trial showed personal identification with persons reporting sexual assault, which at least amounted to a subjective bias. The Court decided that the trial court exercised sustainable discretion when ruling that the foreperson’s bias would have been grounds for excusal for cause.

Because the defendant was entitled to a new trial due to the foreperson’s bias, it was unnecessary for the Court to analyze the trial court’s findings as to the bias of the other juror. The Court affirmed the trial court’s order granting the defendant a new trial.


Gordon J. MacDonald, attorney general (Sean R. Locke, assistant attorney general), for the State. Theodore M. Lothstein, Lothstein Guerriero, Concord for the defendant.