Smith v. Phillips
Decided on Jan. 25, 1982; 455 US 209


A. Issues Discussed: Due process

B. Legal Question Presented:

Was due process of law denied either by the juror's act of applying for a job at the District Attorney's Office or by the prosecutors' failure to disclose the juror's job application?


A. Background:

"Respondent's original motion to vacate his conviction was based on the fact that a juror in respondent's case, one John Dana Smith, submitted during the trial an application for employment as a major felony investigator in the District Attorney's Office. Smith had learned of the position from a friend who had contacts within the office and who had inquired on Smith's behalf without mentioning Smith's name or the fact that he was a juror in respondent's trial...

During later inquiry about the status of Smith's application, the friend mentioned that Smith was a juror in respondent's case. The attorney to whom the friend disclosed this fact promptly informed his superior, and his superior in turn informed the Assistant District Attorney in charge of hiring investigators. The following day, more than one week before the end of respondent's trial, the assistant informed the two attorneys actually prosecuting respondent that one of the jurors had applied to the office for employment as an investigator.

The two prosecuting attorneys conferred about the application but concluded that, in view of Smith's statements during voir dire, there was no need to inform the trial court or defense counsel of the application. They did instruct attorneys in the office not to contact Smith until after the trial had ended, and took steps to insure that they would learn no information about Smith that had not been revealed during voir dire. When the jury retired to deliberate on November 20th, three alternate jurors were available to substitute for Smith, and neither the trial court nor the defense counsel knew of his application. The jury returned its verdict on November 21st.

The District Attorney first learned of Smith's application on December 4th. Five days later, after an investigation to verify the information... [r]espondent's attorney... moved to set aside the verdict...

In his application for federal habeas relief, respondent contended that he had been denied due process of law under the Fourteenth Amendment to the United States Constitution by Smith's conduct. The District Court found insufficient evidence to demonstrate that Smith was actually biased. Nonetheless, the court imputed bias to Smith because 'the average man in Smith's position would believe that the verdict of the jury would directly affect the evaluation of his job application.' Accordingly, the court ordered respondent released unless the State granted him a new trial within 90 days.

The United States Court of Appeals for the Second Circuit affirmed by a divided vote."

On certiorari the US Supreme Court reversed the judgment of the US Second Circuit Court of Appeals.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Brief of amici curiae urging affirmance filed for American Civil Liberties Union by Charles S. Sims, Bruce J. Ennis, Jr., and Richard M. Zuckerman.

William M. Kunstler argued the cause for respondent. With him on the briefs was C. Vernon Mason.

Robert M. Pitler argued the cause for petitioner. With him on the briefs were Mark Dwyer and Vivian Berger.


"In argument before this Court, respondent has relied primarily on reasoning adopted by the District Court. He contends that a court cannot possibly ascertain the impartiality of a juror by relying solely upon the testimony of the juror in question. Given the human propensity for self-justification, respondent argues, the law must impute bias to jurors in Smith's position. We disagree...

Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen. Such determinations may properly be made at a hearing like that ordered in Remmer and held in this case.

The District Court and the Court of Appeals disregarded this doctrine...

As already noted, the Court of Appeals did not rely upon the District Court's imputation of bias. Indeed, it did not even reach the question of juror bias, holding instead that the prosecutors' failure to disclose Smith's application, without more, violated respondent's right to due process of law...

The Court... recognize[s] that the aim of due process 'is not punishment of society for the misdeeds of the prosecutor but avoidance of an unfair trial to the accused...'

In light of this principle, it is evident that the Court of Appeals erred when it concluded that prosecutorial misconduct alone requires a new trial. We do not condone the conduct of the prosecutors in this case. Nonetheless... Smith's conduct did not impair his ability to render an impartial verdict."

The US Supreme Court reversed the judgment of the US Second Court of Appeals.

Justice Vote: 3 Pro vs. 6 Con

  • Rehnquist, W. Con (Wrote majority opinion)
  • Burger, W. Con (Joined majority opinion)
  • White, B. Con (Joined majority opinion)
  • Blackmun, H. Con (Joined majority opinion)
  • Powell, L. Con (Joined majority opinion)
  • O'Connor, S.D. Con (Wrote concurring opinion)
  • Marshall, T. Pro (Wrote dissenting opinion)
  • Brennan, W. Pro (Joined dissenting opinion)
  • Stevens, J.P. Pro (Joined dissenting opinion)

    The ACLU, as amicus curiae, urged affirmance of the U.S. Second Court of Appeal's judgment; the Supreme Court reversed in a 6-3 vote, giving the ACLU an apparent loss.