Yesterday, the Second Circuit rejected U.S. District Judge Jed S. Rakoff’s typical voir dire process and vacated a defendant’s criminal conviction, remanding the case for a new trial (United States v. Nieves, 2d Cir. Jan. 26, 2023). The Circuit found that Judge Rakoff’s self-described “long standing practice” of an extremely abbreviated voir dire process failed to protect against a significant “risk of juror prejudice arising from bias.” Given the risk of juror bias based on defendant Nieves’ alleged gang association, “it was outside of the [district] court’s discretion to altogether decline to protect against that risk.”

Judge Rakoff has long engaged in a uniquely brief voir dire – a practice that some other judges in the district have emulated to some extent. The Second Circuit made its disapproval of this practice clear, remarking, “[I]t is difficult for us, sitting in review, to imagine what less [the district court] could have done to guard against potential bias. Indeed, the Second Circuit reaffirmed that a “district court must ‘permit at least some questioning.’” Noting that there is a range of options for engaging in voir dire, the Second Circuit found that Judge Rakoff’s “failure on voir dire to explore, or to take other steps to specifically counter” potential prejudice constituted an abuse of discretion. This rejection of Judge Rakoff’s voir dire practice will change attorneys’ approach to the process at trial, giving them more opportunity to vet jurors.