Background

• Schwan was convicted by a jury of two counts of Unlawful Sexual Contact in the Second Degree and the court later entered a bench conviction for Unlawful Sexual Conduct by a Sex Offender Against a Child.
• Juror 11, a member of the petit jury, was allegedly acquainted with a non-trial prosecutor who was not involved in Schwan’s case.
• Voir dire asked whether jurors knew any attorneys or office employees, but Juror 11 did not disclose the non-trial prosecutor’s connection at that time.
• After voir dire, the trial prosecutor learned of Juror 11’s connection to the non-trial prosecutor; the judge questioned Juror 11 and she was excused.
• Defense moved to remove Juror 11 for cause on bias and nondisclosure; the trial judge denied the motion.
• The non-trial prosecutor testified inconsistently with Juror 11, and the court ultimately declined to remove Juror 11; the defendant’s counsel renewed the motion without success.
• The Delaware Supreme Court reversed the judgments, holding that Juror 11 could not be shown capable of fair impartial service, and remanded for a new trial.

Issues

Key Cases Cited

• Reynolds v. United States, 98 U.S. 145 (U.S. 1878) (impartiality not fixed by rigid tests; mixed law and fact review on cause challenges)
• Parson v. State, 275 A.2d 777 (Del. 1971) (trial court discretion on causes for removal if juror can be impartial)
• Knox v. State, 29 A.3d 217 (Del. 2011) (inadequate post-voir dire inquiry requires de novo review)
• Jackson v. State, 374 A.2d 1 (Del. 1977) (deliberate nondisclosure by juror taints impartiality; reversal possible)
• Caldwell v. State, 780 A.2d 1037 (Del. 2001) (distinguishes nondisclosure context where voir dire questions differ)
• Banther v. State, 823 A.2d 1287 (Del. 2001) (peremptory challenges; voir dire breadth and appearances of bias)
• United States v. Harbin, 250 F.3d 532 (7th Cir. 2001) (peremptory challenges and impartiality considerations in jury selection)