96-293

 No. 96-293

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

1997

STATE OF MONTANA, 

 Plaintiff and Respondent, 

 v.

JOE EDWARD CHASTAIN, 

 Defendant and Respondent. 

APPEAL FROM: District Court of the Fourth Judicial District, 

 In and for the County of Missoula,

 Honorable Douglas G. Harkin, Judge Presiding.

COUNSEL OF RECORD:

 For Appellant:

 Jeffrey T. Renz, Montana Defender Project, Missoula, Montana

 For Respondent:

 Honorable Joseph P. Mazurek, Attorney General; Pamela Collins,

 Assistant Attorney General, Helena, Montana

 Robert L. Zimmerman, Deputy County Attorney, Missoula, Montana

 Submitted on Briefs: September 4, 1997 

 Decided: October 10, 1997

Filed:

 __________________________________________

 Clerk

Chief Justice J. A. Turnage delivered the Opinion of the Court. 

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 Joe Edward Chastain was convicted of sexual intercourse without consent and

sexual assault, in a jury trial in the Fourth Judicial District Court, Missoula 

County. He

appeals. We reverse.

 The dispositive issue is whether Chastain was denied effective assistance of 

counsel

through omissions by his attorney during and as a result of voir dire.

 In May 1995, Chastain was arrested on two counts of sexual intercourse without

consent and one count of sexual assault. The three complaining witnesses were young

female relatives of Chastain. The charges alleged that Chastain digitally fondled 

one

girl's, and penetrated the other two girls', vaginal areas during a camping trip in 

summer

1992.

 A two-day jury trial was held on November 7 and 8, 1995. The jury found

Chastain not guilty of one count of sexual intercourse without consent, but guilty 

of the

other count of sexual intercourse without consent and of sexual assault. Chastain 

was

sentenced to serve forty years at Montana State Prison.

 Discussion

 Was Chastain denied effective assistance of counsel through omissions by his

counsel during and as a result of voir dire?

 A criminal defendant is denied effective assistance of counsel if: (1) his 

counsel's

conduct falls short of the range reasonably demanded in light of the Sixth Amendment 

to

the United States Constitution; and (2) counsel's failure is prejudicial. 

Strickland v.

Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. 

 During voir dire, Chastain's defense counsel asked prospective jurors whether

they had heard about this case. One panelist responded that he had read about the 

case

in the newspaper and that he had strong feelings. At that point, defense counsel 

asked

that this prospective juror be further interviewed in chambers, to which the court 

agreed. 

The following colloquy occurred in chambers.

 THE COURT: Let the record reflect the jury is not present.

 Q. [BY DEFENSE COUNSEL] I didn't mean to embarrass you or

 anything; but, from my trial strategy, you are a vital part of being on the

 jury or not on the jury, so my question is: You said you had strong feelings

 about the case?

 A. Well, not so much about this case. My little sister was abducted when

 she was about 16 years old, or actually she was driving a car and somebody

 jumped in her car. Fortunately she bailed out and he was caught, but I

 have really strong feelings about what could have happened, and it could

 taint my judgment.

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 Q. Okay. It could?

 A. Uh-huh.

 Q. Um, of course, not favorably against the Defendant, probably--

 A. Probably not favorably, no.

 Q. Okay. That's all I needed to know. I just wanted to make sure we

 were in chambers. 

 A. I wasn't going to say anything out there.

 THE COURT: Do you have any questions?

 [COUNSEL FOR THE STATE]: No. 

 THE COURT: Thank you, sir.

Defense counsel did not challenge this prospective juror, who served on the jury.

 In answer to the same voir dire question from defense counsel, a second member

of the jury panel said that she remembered seeing an article about the case in the

newspaper, but did not remember reading the article. Defense counsel questioned her 

as

follows:

 Q. From what you do remember, how does it affect your duty in this

 particular case?

 A. I don't really know what to do. 

 Q. Do you think that what you've read would impair your judgment

 toward my client or towards the State?

 A. It's hard for me to say. I do have--when I read about something like

 that, I do kind of evoke some strong feelings.

Counsel then asked the prospective juror to verify her name, but he did not further 

pursue

this line of inquiry. Nor did he challenge her as a juror. The woman served on the 

jury.

 A criminal defendant has the right to challenge a prospective juror for cause 

if that

prospective juror "[has] a state of mind in reference to the case or to either of 

the parties

that would prevent the juror from acting with entire impartiality and without 

prejudice to

the substantial rights of either party." Section 46-16-115(2)(j), MCA. There is no

statutory limit upon the number of challenges for cause which a party may raise. "The

purpose of voir dire in a criminal proceeding is to determine the existence of bias 

and

prejudice on the part of prospective jurors and to enable counsel to intelligently 

exercise

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his peremptory challenges." Great Falls Tribune v. District Court (1980), 186 Mont.

433, 440, 608 P.2d 116, 120. In addition to the right to raise challenges for 

cause, a

defendant in a criminal trial is allowed six peremptory challenges to prospective 

jurors. 

Section 46-16-116, MCA. 

 Juror bias may be presumed by reason of potential for substantial emotional

involvement as expressed in the record. United States v. Eubanks (9th Cir. 1979), 

591

F.2d 513, 517. Moreover:

 A court must excuse a prospective juror if actual bias is discovered

 during voir dire. Bias can be revealed by a juror's express admission of

 that fact, but, more frequently, jurors are reluctant to admit actual bias, and

 the reality of their biased attitudes must be revealed by circumstantial

 evidence. We agree with the observation in Kiernan v. Van Schaik (3rd

 Cir. 1965), 347 F.2d 775, 781: "That men will be prone to favor that side

 of a cause with which they identify themselves either economically,

 socially, or emotionally is a fundamental fact of human character."

United States v. Allsup (9th Cir. 1977), 566 F.2d 68, 71.

 It is incumbent upon a party to develop information in the record that 

demonstrates

a juror's bias as to a party or an issue in the case. Defense counsel had a clear 

duty to

ensure Chastain's right to a fair trial by a panel of impartial jurors. 

 The principal way in which this right to trial by "indifferent" jurors is

 secured is through the system of challenges exercised during voir dire. 

 Inhibition of the right to challenge peremptorily or for cause is usually

 deemed prejudicial error, without a showing of actual prejudice. 

Allsup, 566 F.2d at 71. 

 In this case, the statements of both prospective jurors quoted above demanded, 

at

a minimum, additional inquiry. Both prospective jurors expressed reservations about

their ability to judge this case fairly. Yet counsel failed to follow up with 

additional

questions asking whether those prospective jurors could set aside their feelings and 

render

a fair verdict. Nothing in the record explains this failure. Other than counsel's 

bare

comment that the first prospective juror was "a vital part of being on the jury or 

not on

the jury," the record does not reflect a tactical decision by defense counsel not to

challenge these two jurors. Nor does the record explain counsel's failure to 

exclude these

two jurors under the peremptory challenges allowed pursuant to 46-16-116, MCA. 

 The evidence against Chastain was not so overwhelming that defense counsel's

failure to examine these jurors for cause or to exercise even one for-cause 

challenge can

be viewed as harmless error. Chastain was acquitted on one of the charges of sexual

intercourse without consent. There was no physical evidence. Three years passed

between the camping trip and when Chastain was arrested and formally charged. The

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accusations were made by children of a young age. Chastain had never before been

accused of similar acts.

 Where, as here, defense counsel abandons his client's right to challenge a 

juror for

no apparent reason, error must be attributed to the lawyer. As stated in Eubanks, 

591

F.2d at 517, the presence on the jury of even one juror who could not fairly assess 

the

credibility of the witnesses must be presumed prejudicial. Thus, the two prongs of 

the

Strickland test for ineffective assistance of counsel are met. We hold that, under 

the

circumstances here presented, counsel's failure to take steps to prevent the 

presence on

the jury of two jurors who may not have been able to fairly serve amounts to 

ineffective

assistance of counsel. Because we reverse Chastain's conviction on that basis, we 

need

not consider the other issues raised on appeal. 

 Chastain's conviction is reversed and this case is remanded for retrial or other

further proceedings consistent with this Opinion.

 /S/ J. A. TURNAGE

We concur:

/S/ JIM REGNIER 

/S/ W. WILLIAM LEAPHART

/S/ WILLIAM E. HUNT, SR.

Justice Karla M. Gray, dissenting.

 I respectfully dissent from the Court's opinion. As I read it, that opinion 

strongly

suggests that the two jurors at issue successfully could, and should, have been 

challenged

for cause pursuant to the governing statute. The Court also determines that counsel 

was

ineffective in failing to follow up with further inquiry to the two prospective 

jurors,

assumes that bias sufficient to establish grounds for challenges for cause would 

have been

established had additional inquiry been made, and then concludes that Chastain has

established the two Strickland prongs necessary for ineffective assistance of 

counsel. I

cannot agree to any of these determinations.

 The Court correctly quotes 46-16-115(2)(j), MCA, in stating that a prospective

juror may be challenged for cause if that person has "a state of mind in reference 

to the

case or to either of the parties that would prevent the juror from acting with entire

impartiality and without prejudice to the substantial rights of either party." In 

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that

regard, we have held that "[i]t is only where [prospective jurors] form fixed 

opinions on

the guilt or innocence of the defendant which they would not be able to lay aside and

render a verdict based solely on the evidence presented in court that [the 

prospective

jurors] become disqualified as jurors." Great Falls Tribune v. District Court 

(1980), 186

Mont. 433, 439-40, 608 P.2d 116, 120. When a challenge for cause is made, it is not

automatically granted, but is tried by the district court. See 46-16-115(1), 

MCA. Both

parties then have an opportunity to make a record with regard to whether grounds for

excusing the juror for cause exist.

 It is clear that the record as it exists in this case would not--on a standalone basis,

without more--have supported a successful challenge for cause of either of these two

potential jurors. Neither prospective juror indicated a fixed opinion of guilt much 

less

any opinion of guilt which they would have been unable to set aside. The male 

panelist

said that his really strong feelings about what could have happened in his sister's 

case

"could" taint his judgment in Chastain's case and evince feelings which would not be

favorable to the defendant. The female panelist stated only that she had seen a 

newspaper

article about the case, that she did not remember reading it, and that when she read 

about

"something like that, I do kind of evoke some strong feelings." On this record, 

neither

of these jurors meets the statutory standard of "a state of mind in reference to the 

case

or to either of the parties that would prevent the juror from acting with entire 

impartiality

and without prejudice to the substantial rights of [the defendant]."

 Moreover, while I agree with the Court that it is the party's obligation to 

develop

information that demonstrates a juror's bias as to that party or an issue in the 

case, the

record before us does not support a conclusion that defense counsel did not 

discharge this

obligation here. One must assume that these jurors were, indeed, biased in order to

conclude that defense counsel's performance was deficient here; I am not willing to 

join

the Court in making that assumption. While the Court concludes that defense counsel

erroneously abandoned his right to challenge for cause, it is just as likely that, 

in not

following up with these prospective jurors on the basis of their expressed feelings 

which

were almost entirely unrelated to the case at hand, defense counsel was aware of the

relatively difficult task of establishing bias under 46-16-115(2)(j), MCA, and 

Great

Falls Tribune. In my opinion, Chastain has not established that counsel's 

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performance

was deficient and, therefore, I would conclude that he did not meet the first 

Strickland

prong.

 Furthermore, while I agree with the Court's adoption of the Allsup rationale 

that

the presence of a juror who could not fairly assess the credibility of the witnesses 

must

be presumed prejudicial, I submit that the record before us does not establish the 

presence

of such a juror in this case and, as a result, the Allsup rationale is 

inapplicable. The fact

is that the empaneled jury, including both of the jurors at issue in this ineffective

assistance of counsel claim, acquitted Chastain of one count of sexual intercourse 

without

consent. That fact alone, in my view, belies any Allsup notion that the case 

presently

before us involves a juror who could not fairly assess the credibility of the 

witnesses. 

 Absent such a circumstance in which prejudice properly may be presumed, the

burden of establishing prejudice, as required by Strickland, remains on the 

defendant. 

The record before us contains substantial evidence in support of the charges against

Chastain and he was acquitted of one charge of sexual intercourse without consent. 

It is

my view that, on this record, Chastain has not established prejudice and that, even

assuming counsel had a duty to follow up with further inquiry of these potential 

jurors,

the second Strickland prong is not met.

 I would conclude that Chastain has not established ineffective assistance of 

counsel

and, with regard to the second issue he raises, that sufficient evidence supports 

the jury

verdict finding him guilty of one count of sexual intercourse without consent and 

sexual

assault. As a result, I would affirm the District Court. 

 /S/ KARLA M. GRAY

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