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(preface:  There are dozens of ways the Commonwealth can botch this up. The jurors can believe anything).

On jury bias and jury tainting: 
Well…. As a prosecutor, I had never seen that happen, but I know it can. In fact, after my police detective husband and I retired and moved to a small town in a more rural area of our state, he was called for jury duty in the county seat of that small county. It was a murder trial with a judge brought in from the jurisdiction where we used to live and work. My husband was seated in the jury box with several others, while the entire back of their largest courtroom was full of many more prospective jurors, who had been told to listen carefully to all questions and remember any positive answers to report to the judge if they were called to the jury box to replace one who had been excused.

As usual, each juror in the box was asked about their profession and if they knew any police officers or attorneys. Of course, my husband told them about his prior job as a police detective, and that he knew 100s of officers and a lot of attorneys, including his wife.

Then he was asked if he knew any of the participants in the trial. He told the court that he knew the local police officers who were going to testify and the prosecutor in the case. He reminded the judge that he knew him from prior cases and also knew the defense attorney. He then told him that he knew the defendant. Plenty of reasons to strike him for cause right then and there - no chance he would be on THAT jury!

Then the defense attorney asked the stupidest question I have ever heard asked during voir dire! He asked my husband (the assaults and sex crimes detective!) how it was that he knew his client! Wow! My husband, knowing that it was a very sensitive question, paused and waited for someone to object or suggest that this line of questioning be continued in chambers. Silence. So he was obligated to answer the question, and he did, saying that he had investigated the defendant in an Assault with a Deadly Weapon case. NOW the defense attorney was awake! Mistrial, mistrial! The courtroom erupted.

The poor judge, knowing how much money it had cost to bring in so many prospective jurors, was in a difficult position. It was likely that the entire pool of jurors was now contaminated. But the defense had created this mess. He knew what my husband did, but still asked an outrageously stupid question.

The judge ultimately denied the motion for mistrial, and the trial proceeded. We went home, amazed at what had transpired, and never heard what happened with the trial. I assume that the defendant was convicted, but I also thought that he probably had a good Ineffective Assistance of Counsel appeal due to the bizarre behavior of his attorney. It was likely that any conviction was overturned on appeal.

So, yes, a statement during voir dire can certainly cause a mistrial, and in this case, probably should have.[/quote]

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