Supreme Court of Nebraska Finds Juror Who Acknowledged The Defendant Could Be at a Distinctive Disadvantage if He Were Empaneled Did Not Need to Be Struck for Cause

Pursuant to the Sixth Amendment, a criminal defendant has the right to a trial “by an impartial jury.” So, would this standard be satisfied by a prospective juror who had read in the news about the defendant being a suspect in a murder case and who had the following answer to the following question?

[Defense counsel:] All right. So — I’m going to phrase this — I don’t want to put words in your mouth — but would you agree with me, then, the way you’re feeling now is that [Elseman] could be at a distinct disadvantage in the event you were kept on the jury; is that a fair statement?

[Challenged juror:] I am saying that, yes.

That was the question addressed by the Supreme Court of Nebraska in its recent opinion in State v. Elseman, 2026 WL 2964879 (Neb. 2026). In rejecting Elseman’s appeal from his murder conviction on the ground that the juror should have been stricken for cause, the state supreme court ruled that:

We disagree that the challenged juror unequivocally stated that he could not be fair and impartial. We do not deny that the challenged juror made several statements that merited additional inquiry. In addition to agreeing that Elseman “could be at a distinct disadvantage” if he was kept on the jury, the challenged juror also acknowledged reading about the case in media reports, learning that Elseman was the alleged shooter, forming an “initial impulse” that Winters’ death was a “very bad deal,” and thinking that this was a “heinous” and “unnecessary” crime.

Contrary to Elseman, however, we do not understand any of these statements, alone or taken together, to rise to the level of an unequivocal expression that the challenged juror could not be fair and impartial. Even if the challenged juror formed initial impressions based on media reports, it does not follow that he was incapable of setting those impressions aside and fairly deciding the case based on the evidence presented. Further, the challenged juror’s affirmative response to the question of whether Elseman “could be at a distinct disadvantage,” if the challenged juror was left on the jury was, by its terms, equivocal. (Emphasis supplied.) The word “could” is “used to indicate possibility.” See The New Oxford American Dictionary 389 (2001). So while the challenged juror perhaps acknowledged a possibility that his presence on the jury would place Elseman at a disadvantage, his answer to that precise question also left open the possibility that it would not.

To me, this seems like sheer semantics. I think almost everyone would agree that the juror entered the case with bias against the defendant that he would have difficulty setting aside. And I think almost everyone would agree that acknowledging that the defendant could be at a distinct disadvantage if the juror were empaneled was the juror acknowledging difficulty being impartial.