IN THE

Indiana Supreme Court

Supreme Court Case No. 19S-CR-324

Tracie Easler,

Appellant (Defendant),

–v–

State of Indiana,

Appellee (Plaintiff).

Argued: June 18, 2019 | Decided: September 20, 2019

Appeal from the Marion Superior Court, 

No. 49G10-1707-CM-25008

The Honorable Peggy Ryan Hart, Pro Tempore

On Petition to Transfer from the Indiana Court of Appeals,

No. 18A-CR-1371

Opinion by Justice Goff

Chief Justice Rush and Justices David, Massa, and Slaughter concur.
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Goff, Justice.

Deciding issues of great importance under time constraints is but one 

burden borne by our trial courts. However, every case is important to the 

parties involved and adequate time must be allocated to fairly resolve any 

meritorious issues presented. In this case involving charges of operating a 

vehicle while intoxicated, a juror—after being selected to serve on the jury 

but before being sworn—submitted a note informing the trial court that 

one of her family members had been killed by a drunk driver. Defense 

counsel requested an opportunity to explore the juror’s potential bias, but 

the trial court did not allow further questioning. We conclude that the 

information conveyed by the juror to the trial court before the jury was 

sworn should have resulted in a hearing to determine whether the 

defendant could have properly challenged the juror’s service for cause. 

The trial court’s refusal to conduct a hearing was an abuse of discretion. 

Further, given the subjective nature of the information conveyed and 

concerns about the passage of time and potential juror harassment, we 

cannot say that remand for a hearing will ensure the fairness of the 

proceedings below. Accordingly, we reverse and remand these 

proceedings for a new trial.

Factual and Procedural History

Based on an incident where emergency personnel found her

unconscious behind the wheel of her SUV, the State charged Defendant 

Tracie Easler with two counts of operating a vehicle while intoxicated, and 

the case proceeded to a jury trial.

After assembling the prospective jurors, the trial court introduced the 

parties and explained the voir dire process, saying “the objective of the 

attorneys here today is to obtain a fair and impartial jury.” Tr. Vol. II, pp. 

12–13. See also id. at 12 (“Jurors must be free as humanly possible from 

bias, prejudice, sympathy, and must not be influenced by pre-conceived 

ideas as to either what the facts are, or what the law is.”). At this point, 

the court asked all the potential jurors to stand and promise to answer any 

questions honestly during jury selection. The State and defense counsel 
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then conducted their voir dire examinations of the potential jurors. After 

the dust settled, the trial court announced the six-person jury, which 

included M.M. (“Juror 4”). Up until this time, Juror 4 had spoken only 

two times, answering direct questions from counsel about signs of 

intoxication and reasonable doubt. But when she was announced as a 

member of the jury, Juror 4 interjected, “Are those—they’re not going to 

ask us any more questions that are relevant?” Supp. Tr. Vol. II, p. 29. The 

court informed her that questioning was over, and the bailiff escorted the 

six newly selected jurors from the room. 

Another set of potential jurors was seated for the court and the parties 

to examine and select an alternate juror. Before the court announced who 

had been selected, it asked counsel to approach and disclosed a note that

Juror 4 had given to the bailiff. The note read, “a family member was 

killed by a drunk driver. It was before I was born, but altered my family 

dynamic irreparably. I can be a jury member, but thought it is relevant to 

disclose.” Appellant’s App. Vol. II, p. 127. Defense counsel asked if Juror 

4 could be brought out and questioned over whether she could be a fair 

and impartial juror. Supp. Tr. Vol. II, p. 35. Instead of responding to 

defense counsel, the court said, “I just thought I’d share that with you, 

okay. But I don’t think there’s anything else we can do.” Id. at 36. 

Defense counsel did not otherwise immediately respond to the court’s 

dismissal of Juror 4’s note. The court then announced the alternate juror, 

had her join the other people selected as jurors, and dismissed the 

remaining potential jurors. 

Once all the jurors and potential jurors had left the courtroom, the court

returned to Juror 4’s note to clarify the record. After the court 

summarized the note and the disclosure of the note, defense counsel 

challenged Juror 4 for cause, arguing that Juror 4 had not been 

forthcoming on her juror questionnaire when “she said that her 

grandmother was the victim of murder, but . . . did not disclose anything 

else.” Id. at 37. The State disagreed, arguing that Juror 4 had been 

forthcoming. The State said that on Juror 4’s questionnaire, she had 

explained her sympathy for victims of violent crimes as the result of 

seeing the effect of those crimes on families. The State also summarized 

Juror 4’s note as saying that she could still be a fair and impartial juror,
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and it noted that she had voluntarily made the parties aware of her past. 

The court denied the motion to remove the juror. The entire jury was then 

sworn in as jurors, and it found Easler guilty on both counts. 

Easler appealed, claiming the trial court should have granted a hearing 

to discover Juror 4’s possible bias and, separately, should have removed 

Juror 4 for cause. The Court of Appeals affirmed the trial court. Easler v. 

State, 118 N.E.3d 84, 92 (Ind. Ct. App. 2019). It rejected Easler’s hearingrequest argument because neither “the incompleteness of Juror 4’s 

questionnaire” nor the note Juror 4 provided to the court “present[ed] 

specific, substantial evidence establishing Juror 4’s bias” that would entitle 

Easler to a hearing. Id. at 90 (relying primarily on Lopez v. State, 527 

N.E.2d 1119, 1130 (Ind. 1988)). The court explained that “Juror 4 

completed the questionnaire to the best of her ability.” Id. Juror 4 took 

steps to divulge the information as soon as she could, and “coupled with 

the affirmation that she could remain on the jury despite her background,

[she] resolved the need for any questioning.” Id. The Court of Appeals 

concluded that the trial court correctly declined to remove Juror 4 for 

cause because either party could have asked related questions during voir 

dire, and Juror 4 shared her information as soon as possible. Id. at 91–92.

We granted Easler’s petition to transfer, thereby vacating the Court of 

Appeals opinion. Ind. Appellate Rule 58(A).

Standard of Review

Generally, “[a] trial court has broad discretionary power to regulate the 

form and substance of voir dire.” Ward v. State, 903 N.E.2d 946, 955 (Ind. 

2009), aff’d on reh’g, 908 N.E.2d 595. This discretion extends to ruling on 

requests to question a juror regarding potential bias or misconduct. See 

Lopez, 527 N.E.2d at 1130. Error from an abuse of discretion arises in this 

context “if the decision is illogical or arbitrary.” Oswalt v. State, 19 N.E.3d 

241, 245 (Ind. 2014) (citation omitted).

Although a trial court exercises its discretion in regulating voir dire, 

Easler suggests this Court has not addressed how to secure a hearing if, 

after a jury is selected but before the members are officially sworn in as 
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jurors, new evidence emerges possibly indicating a juror’s bias. This issue 

qualifies as a pure question of law, requiring “neither reference to 

extrinsic evidence, the drawing of inferences therefrom, nor the 

consideration of credibility questions for its resolution.” Bader v. Johnson, 

732 N.E.2d 1212, 1216 (Ind. 2000) (citation omitted). This Court reviews 

pure questions of law de novo. Id.

Discussion and Decision

“The right to a fair trial before an impartial jury is a cornerstone of our 

criminal justice system” guaranteed by both the United States and Indiana 

constitutions. Whiting v. State, 969 N.E.2d 24, 28 (Ind. 2012) (citing U.S. 

Const. amend. VI and Ind. Const. art. 1, § 13). “The presence of even one 

biased juror on the jury is a structural error requiring a new trial.” Id. 

Thus, “the trial court has ‘a broad discretion and duty . . . to see that the 

jury as finally selected is subject to no solid basis of objection on the score 

of impartiality.’” Id. at 29 (omission in original) (quoting Frazier v. United 

States, 335 U.S. 497, 511 (1948)). 

This case implicates these foundational principles by questioning how 

counsel can ferret out a potential juror’s possible bias or misconduct when 

new information comes to light in the moments between a person being 

selected as a juror and the person being sworn in as a juror. Specifically, 

this case raises the following question: What is the minimum amount of 

new information—in terms of quality and quantity—that would require a 

court to hold a hearing to investigate the alleged bias or misconduct? To 

answer this question, we first examine our prior cases and determine 

whether and to what extent they apply in these contexts. Then, we 

analyze the facts of this case in light of the applicable legal standard.
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I. When a party requests to question a juror on 

possible bias, timing matters.

A. Barnes, Stevens I & II, and Lopez lay the groundwork 

for determining when a hearing should be conducted.

Our law regarding requests for hearings to question jurors on possible 

bias or misconduct has been developed primarily through three cases: 

Barnes v. State, 263 Ind. 320, 330 N.E.2d 743 (1975); Stevens v. State (Stevens 

I), 265 Ind. 396, 354 N.E.2d 727 (1976), aff’d on reh’g, 265 Ind. 396, 357 

N.E.2d 245 (Stevens II); and Lopez v. State, 527 N.E.2d 1119 (Ind. 1988). The 

parties’ arguments rely on these important cases, but the parties disagree 

as to how these cases impact the outcome here. Before diving into the 

parties’ arguments, we find helpful a brief review of each case’s holding 

relating to hearings on juror bias or misconduct.

Barnes is the seminal case regarding hearings into possible juror bias or 

misconduct. In Barnes, we laid down the general rule that, when a party 

presents new information unavailable during voir dire showing possible 

juror bias or misconduct, the party should be able to question that juror on 

his or her potential bias and then challenge that juror, if warranted. 330 

N.E.2d at 747. See also Haak v. State, 275 Ind. 415, 417 N.E.2d 321, 324 

(1981) (“Because the possibility of juror bias had been raised by appellant 

Barnes’ allegation, and because there had been no opportunity to discover 

this bias at the time the jury was selected, we remanded . . . [for] an 

evidentiary hearing.”). Our later cases fill in the gaps of this general rule.

Stevens I & II built upon Barnes and provided what a hearing into 

possible juror bias or misconduct should look like when a party presents 

its new information of bias or misconduct during trial. In these situations, 

the trial court should conduct a hearing on the matter, outside the 

presence of the rest of the jurors, to see (1) if the juror was biased or not 

disinterested and (2) if the hearing itself caused the juror to be biased. 

Stevens I, 354 N.E.2d at 732. See also Stevens II, 357 N.E.2d at 246 

(emphasizing the hearing requirements laid out in Barnes and Stevens I); 
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McFarland v. State, 271 Ind. 105, 390 N.E.2d 989, 993 (1979) (affirming the 

trial court after it held a hearing in line with Stevens I). 

Lopez then, as relevant here, clarified the general rule in Barnes and 

described the minimum evidence a party must present in certain contexts 

to show possible juror bias or misconduct and receive a hearing. We 

stated, “A defendant seeking a hearing on juror misconduct must first 

present some specific, substantial evidence showing a juror was possibly 

biased.” Lopez, 527 N.E.2d at 1130 (citing Berkman v. State, 459 N.E.2d 44, 

46 (Ind. Ct. App. 1984)). See also Guyton v. State, 771 N.E.2d 1141, 1144–45

(Ind. 2002) (relying on Lopez’s “specific, substantial evidence” requirement 

in affirming the denial of a post-trial request for a hearing on alleged juror 

misconduct). This “specific, substantial evidence” requirement was meant 

to prevent hearings on juror bias or misconduct from becoming a tool to 

harass jurors who had returned a guilty verdict and been discharged. 

Berkman, 459 N.E.2d at 46. Thus, Lopez clarified Barnes regarding what 

constitutes a showing of possible juror bias or misconduct when the new 

information of possible bias or misconduct comes to light after trial.

B. The showing required for a hearing under Barnes and 

Stevens I & II before the jury is sworn is less than that 

described in Lopez.

Having summarized these guiding cases concerning hearings into 

possible juror bias, we now address the parties’ arguments, both of which 

are centered on Lopez. Easler contends that Lopez does not apply here 

because her hearing request was made before the jury was sworn in—not 

after trial—and that she should have been given a hearing. On the other 

hand, the State argues that the Lopez “specific, substantial evidence” 

requirement applies and was not met. Thus, the State concludes, Easler 

was not entitled to a hearing on Juror 4’s alleged bias. We agree with 

Easler that Lopez does not apply here, and we conclude that the burden to 

show a possibility of juror bias or misconduct and thus receive a hearing 

under Barnes and Stevens I & II is lower before the jury is sworn in than it 

is after trial.
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Lopez’s “specific, substantial evidence” requirement does not apply 

here where Easler requested a hearing on Juror 4’s possible bias before she 

had been sworn in as a juror. As noted above, the “specific, substantial 

evidence” requirement was developed as a bulwark against post-trial 

juror harassment. See Berkman, 459 N.E.2d at 46. If jurors who returned a 

guilty verdict and were discharged could be hauled back to a hearing 

about their alleged bias or misconduct based on mere blanket or

conclusory allegations, there would be a very real risk of juror 

harassment. There would also be the potential for a flood of frivolous 

collateral attacks on verdicts. These concerns are not the same before the 

jury is sworn in. First, asking a juror a few more questions when he or she 

is already at the courthouse is much less harassing than bringing him or 

her back to the courthouse after completion of his or her jury service. 

Second, without a verdict, there would be nothing to collaterally attack

and little reason for harassment. Because the reasons supporting Lopez’s 

“specific, substantial evidence” requirement do not apply with the same 

force before a jury is sworn, that requirement does not control when a trial 

court should hold a hearing on possible bias requested before swearing in 

the jury.

Instead, when a party requests a hearing on possible juror bias or 

misconduct after the jury has been selected but before it is sworn in, a trial 

court should hold such a hearing if the party provides some relevant

basis, arising outside the normal course of voir dire, that indicates a juror 

is possibly biased or possibly committed misconduct. Such a hearing 

should comply with the requirements laid out in Barnes and Stevens I & II. 

This standard still requires some amount of specificity regarding a 

prospective juror’s possible bias rather than a general hunch or feeling. 

However, the evidence of possible bias or misconduct need not be 

substantial. Instead, the new information need only be relevant to the 

juror’s potential bias or misconduct. This standard—set lower than that in 

Lopez—recognizes the paramount importance of impartial juries and the 

relative ease with which trial courts can correct potential improprieties 

before the jury is sworn in. Further, by encouraging hearings in close 

cases, this standard helps prevent mistrials or retrials, which would result 

if a person’s bias or misconduct were discovered after being sworn in as a 
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member of the jury. Finally, the requirement that the new information 

arise outside the normal course of voir dire—such as from a juror 

interrupting the proceedings to alert the court and parties to possible 

issues or from a juror’s note—prevents this standard from being used by 

parties to bypass a court’s limitations and get a second bite at the voir dire 

apple. Thus, to repeat the rule applicable here, if a party requests a 

hearing on juror bias or misconduct after the jury is selected but before it 

is sworn in and the party provides some relevant basis, arising outside the 

normal course of voir dire, that indicates a juror is possibly biased or 

possibly committed misconduct, a trial court should hold a hearing to 

determine if the juror is biased or committed misconduct.

II. The trial court should have held a hearing when 

Easler requested one in response to Juror 4’s note.

A. The trial court abused its discretion when it failed to 

conduct a hearing prior to swearing in the jury.

Turning to the facts of this case, we find that the trial court abused its 

discretion when it failed to conduct a hearing regarding Juror 4’s possible 

bias after Juror 4 had been selected to serve on the jury but before the 

jurors had been sworn in. After the trial court announced that Juror 4 had 

been selected to be on the jury, she asked if counsel were going to ask any 

more questions, and the trial court said no. While the court and parties 

were in the process of selecting an alternate juror and before anyone had 

been sworn in as a juror, Juror 4 wrote a note to the court explaining her 

prior experience with the impact of drunk driving. Easler asked to 

question Juror 4 to see if she could be fair and impartial, but the trial court 

did not hold a hearing. Juror 4’s note shows a relevant basis indicating 
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possible bias. Thus, the trial court should have held a hearing to 

determine whether Juror 4 was biased before she was sworn in as a juror.1

Juror 4’s note to the trial court provided a relevant basis indicating that 

she might be biased. In her note, Juror 4 said that “a family member was 

killed by a drunk driver. It was before I was born, but altered my family 

dynamic irreparably. I can be a jury member, but thought it is relevant to 

disclose.” Appellant’s App. Vol. II, p. 127. This information on Juror 4’s 

family history constitutes a relevant basis showing that she might be 

biased in cases involving alleged drunk driving—like Easler’s. The State 

argues that Juror 4’s statement that she could still be a member of the jury

obviated the need for a hearing, essentially equating this statement with a 

promise to be fair and impartial. See Oral Argument at 15:31–15:50. 

Although the trial court had previously informed all the prospective 

jurors that the goal of voir dire was to obtain a fair and impartial jury, 

saying “I can be a jury member” falls short of saying “I will be fair and 

impartial.” And, considering the strong language Juror 4 used in her note, 

her statement that she could still be a juror does not wipe away the 

possibility that she was biased. Thus, Juror 4’s note provided a relevant 

basis indicating her possible bias, and the trial court abused its discretion 

in not holding a hearing on the matter after Easler requested one.

B. Under these circumstances, the only adequate remedy is 

a new trial.

Having found that the trial court abused its discretion when it did not 

hold the requested hearing into Juror 4’s possible bias, we now consider 

the remedy. Easler contends that she is entitled to a new trial. The State 

disagrees, arguing that we should remand for an evidentiary hearing to 

fully investigate Juror 4’s possible bias. We agree with Easler and 

1 We do not find misconduct by Juror 4 in this record. To the contrary, Juror 4 was a 

conscientious prospective juror, alerting the court and parties to relevant information as soon 

as she could. Therefore, we focus solely on her possible bias.
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conclude that a new trial is the only adequate remedy in this case for three 

reasons. 

First, examining Juror 4’s possible bias would require a subjective 

assessment of how her family history might have impacted her thoughts 

and feelings in a case she knew little about during voir dire. This would 

be difficult to explore outside the context and timing of the voir dire 

setting. In Thompson v. Gerowitz, our Court of Appeals recognized the 

difficulty of making this type of subjective assessment in an after-the-fact 

hearing, and it remanded for a new trial. 944 N.E.2d 1, 9–10 (Ind. Ct. App. 

2011). Cases involving subjective assessments can be contrasted with 

those involving objective assessments of a juror’s bias, where remand for 

an evidentiary hearing is more feasible. See Barnes, 330 N.E.2d at 747

(remanding for an evidentiary hearing when the juror’s bias turned on an 

objective assessment of the juror’s knowledge of a relationship); Diehl v. 

Clemons, 12 N.E.3d 285, 297–98 (Ind. Ct. App. 2014) (remanding for an 

evidentiary hearing when the juror’s bias turned, in part, on an objective 

assessment of the juror’s memory of a lawsuit). Here, Juror 4’s note 

showed that she knew her family history. The only question was what 

kind of impact that knowledge might have had on her ability to be fair 

and impartial. Since this involves a subjective assessment that would be 

difficult to make outside its normal context, a new trial is appropriate.

Second, the passage of time between when Juror 4 should have been 

examined about her possible bias and when she might be asked now 

supports remanding for a new trial. If we were to remand for an 

evidentiary hearing, Juror 4 would be forced to try to remember her 

subjective thoughts and feelings as of the date voir dire took place—

almost a year and a half ago—and speculate as to how, at that time, she 

might have been impacted going forward. She would have to do this 

while avoiding any impermissible testimony about the jury’s deliberations 

and verdict. See Ind. Evidence Rule 606(b); Ward v. St. Mary Medic. Ctr. of 

Gary, 658 N.E.2d 893, 894 (Ind. 1995). This would be an impractical, if not 

impossible, task.

Third, holding a new trial avoids potential juror harassment. As noted 

above, a concern about potential harassment of jurors after trial provides
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the rationale for the requirement in Lopez that a party present “specific, 

substantial evidence” of possible bias to receive a hearing. Those same 

concerns are not present when a court holds a hearing before swearing in 

the jury. Following the State’s suggestion of remanding for an evidentiary 

hearing now would introduce the potential for post-trial juror harassment 

where it did not exist before. A new trial avoids this result.

Whether Juror 4 was biased during Easler’s trial involves a subjective 

assessment that would be difficult to make outside the context and timing 

of the voir dire setting. This difficulty is compounded by the passage of 

time since Juror 4’s potential bias should have been examined. And 

allowing such an examination to take place now would open the door to 

potential post-trial juror harassment. Based on these reasons, a new trial 

is the proper remedy in this case.2

Conclusion

When a party requests a hearing on possible juror bias or misconduct 

after the jury is selected but before it is sworn, a trial court should hold 

such a hearing if the party demonstrates some relevant basis, arising 

outside the normal course of voir dire, that indicates a juror is possibly 

biased or possibly committed misconduct. Here, Juror 4 submitted a note 

to the court that provided such a relevant basis indicating that she was 

possibly biased, and Easler requested a hearing. However, the trial court 

did not hold a hearing. That failure to hold a hearing constitutes an abuse 

of discretion. Accordingly, we reverse and remand for a new trial.

Rush, C.J., and David, Massa, and Slaughter, JJ., concur.

2 Given our remand for a new trial, we need not address the issues Easler raised surrounding 

the trial court’s denial of her for-cause challenge to Juror 4.
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ATTORNEYS FOR APPELLANT

Talisha Griffin

Valerie K. Boots

Marion County Public Defender Agency

Indianapolis, Indiana

ATTORNEYS FOR APPELLE E

Curtis T. Hill, Jr.

Attorney General of Indiana

Ian McLean

Caryn N. Szyper

Deputy Attorneys General

Indianapolis, Indiana