“I’m On The Fence . . .”

Buyers and Sellers: Time to Get Off the Fence | Framingham, MA Patch

In State v. Smith, No. 83187-9-I (August 21, 2023), the WA Court of Appeals held that a juror who says, “I’m on the fence” during jury selection should have been excused. If the juror is “on the fence” then the Prosecutor has not carried its burden.


Mr. Smith Nathan was charged with rape of a child in the first degree. During jury selection, Juror #27 was unable to commit to applying the presumption of innocence. When asked whether, if she disagreed with everyone else in the jury, she would be tempted to “change her vote to whatever the rest of the group thinks, even if she personally didn’t feel that way,” Juror #27 answered she would not:

“If I was a 100 percent very confident, then no. But if I was like, I believe this evidence, or whatever, but I am kind of like, on the fence, then I may agree with everyone.” ~Juror #27 (emphasis supplied)

Because Smith had exhausted his peremptories, Juror #27 was empaneled after the court denied his for-cause challenge. Later, Smith was convicted as charged. He appealed his conviction on arguments that the trial judge seated a biased juror.


The Court of Appeals began by saying the accused has a federal and state constitutional right to be tried by a fair and impartial jury. Trial judges have an independent duty to protect that right by excusing jurors who have actual or implied bias. “Actual bias” is defined by statute as “the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging.” RCW 4.44.170(2). 

The Court reasoned that being “on the fence” directly implicates proof beyond a reasonable doubt. If a juror is on the fence, the State has necessarily failed to satisfy its burden to prove the elements beyond a reasonable doubt. Simply agreeing with everyone when “on the fence,” means that the State has failed to meet its burden. This result contradicts the instructions on the law and deliberation process.

“There is nothing neutral about the presumption of innocence. Even after correction from the trial court, Juror #27 did not understand her duty as a juror and demonstrated an inability to serve as the law requires. Jurors who exhibit prejudice by being unwilling or unable to follow the law or participate in deliberations are unfit to serve on the jury. A jury should be composed of jurors who will consider and decide the facts impartially and conscientiously apply the law as charged by the court. Jurors who cannot apply the law, including those who cannot apply the burden of proof because they fail to understand it, are not impartial.” ~WA Court of Appeals.

With that, the Court of Appeals reversed Mr. Smith’scriminal conviction.

My opinion? Excellent work by the defense in exhausting their peremptory challenges, moving to excuse Juror #27 for cause and preserving the record for appeal when the judge denied the motion for cause. Constitutional law requires that jurors be impartial. They must fairly evaluate evidence and wait until the end of the trial to decide on a defendant’s guilt in a criminal case.

I’ve chosen well over 40 juries in my career. Finding impartial jurors is extremely difficult. As this case shows, however, it is suitable for all parties – including the Judge and Prosecutor – to excuse impartial jurors as quickly as possible.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.