State v. King

2008 UT 54
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, 	No. 20060988
Plaintiff and Petitioner,
v.
F I L E D
Gordon R. King,
Defendant and Respondent. 	August 5, 2008
---
Third District, Salt Lake
The Honorable Leslie A. Lewis
No. 021900713
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Jeffrey S. Gray, Asst.
Att’y Gen., T. Langdon Fisher, Salt Lake City, for
plaintiff
Elizabeth Hunt, Salt Lake City, for defendant
---
On Certiorari to the Utah Court of Appeals
NEHRING, Justice:
INTRODUCTION
¶1 	For the second time we rule on a challenge to the
composition of the jury that convicted Gordon King of aggravated
sexual abuse of a child. 	On certiorari from the court of
appeals, we previously held that Mr. King both failed to preserve
his objection to the seating of two potentially biased jurors and
failed to demonstrate why his oversight should be excused. 	We
remanded the case to the court of appeals to consider whether the
conduct of Mr. King’s attorney that allowed the potentially
biased jurors to be seated constituted ineffective assistance of
counsel. 	The court of appeals held that it did and granted Mr.
King a new trial. 	It concluded that Mr. King’s counsel rendered
deficient service to Mr. King by failing to adequately probe two
jurors for potential bias before the jury was empaneled. 	The
court of appeals then found that it could presume that the

No. 20060988 	2
seating of the two suspect jurors prejudiced Mr. King. 	State v.
King (King III), 2006 UT App 355, ¶ 16, 144 P.3d 222.
¶2 	We again have granted certiorari, this time to review
whether the court of appeals erred when it presumed that the
failure of Mr. King’s trial counsel to further investigate the
potential biases of prospective jurors prejudiced Mr. King, thus
relieving Mr. King of the obligation to prove that the presence
of the two potentially biased jurors actually prejudiced him. 	We
hold that it did and reverse.
BACKGROUND
¶3 	Mr. King was charged with aggravated sexual abuse of a
child, a first degree felony, after his daughter’s friend
reported that Mr. King had inappropriately touched her during a
sleepover at his home. 	Mr. King pled not guilty, and his case
went to trial.
¶4 	During the jury selection process, the trial judge read
the contents of the information document to the prospective
jurors. 	The information described the nature of the crime for
which Mr. King was standing trial. 	The judge then asked the
prospective jurors if anyone had “formed an opinion” about the
case because it involved sexual abuse of a child. 	One person
raised a hand. 	The judge then asked whether any of the
prospective jurors “would be unable to be fair and impartial” if
called upon to serve as a juror in a child sexual abuse case.
The prospective juror who indicated she had formed an opinion
about the case was joined by four more prospective jurors in
giving affirmative responses to this question, bringing to five
the total number of prospective jurors who had disclosed
potential bias.
¶5 	The judge then emphasized that while the crime with
which Mr. King was charged might be “harder for us to hear about,
listen to and deal with” than other offenses, the defendant had,
at this stage of the proceedings, merely been charged with the
crime and had not been convicted. 	After reiterating that the
State bore the burden of proving Mr. King’s guilt beyond a
reasonable doubt, the judge asked, “Are you people of the opinion
that, because of the mere nature of the case, you couldn’t listen
and be fair?” 	Only the person who had already twice raised a
hand did so again.
¶6 	This prospective juror and those who questioned their
ability to be fair and impartial were then asked follow-up
questions to expose possible biases. 	Of this group of five

3 	No. 20060988
prospective jurors, three doubted their ability to be fair and
impartial because of their direct or indirect experience with
child sexual abuse. 	The remaining two jurors did not identify
any direct or indirect experience with abuse but believed the
subject matter of the case would have an emotional impact on them
that would interfere with their ability to be fair and impartial.
¶7 	The trial judge asked the entire panel of prospective
jurors if there was “anyone else who either ha[d] been a victim
of abuse or ha[d] had a family member or close personal friend
who ha[d] been the victim of abuse.” 	Six additional prospective
jurors indicated that they had. 	The trial judge asked these six
jurors if their experiences with abuse “would interfere with
[their] ability to be fair and impartial.” 	One of the group
indicated that it would. 	She was later dismissed for cause. 	The
other five signaled their belief that they could be fair and
impartial by not raising their hands in response to the judge’s
question.
¶8 	After noting the names of the remaining five jurors who
said they or someone they knew had been a victim of abuse, the
trial judge asked them to step out of the courtroom and remain by
the door so that she could individually question them to
determine the existence or extent of bias. 	Of the five jurors
who indicated that they thought they would be “fair and
impartial” despite an experience with abuse, only three were
questioned by the trial judge. 	The remaining two, jurors No. 2
and No. 18, were not separately questioned. 	Neither counsel for
the defense nor counsel for the prosecution noticed the omission,
and after the trial judge declared that the court had “probably
talked to everyone else” who had indicated some kind of
experience or exposure to abuse, the entire panel was then
questioned by both sides. 	None of the questions directly related
to the issue of abuse. 	Both sides passed the panel for cause and
exercised their peremptory challenges. 	Jurors No. 2 and No. 18
were seated as members of the jury.
¶9 	After the trial, the jury returned a guilty verdict on
the lesser included offense of sexual abuse of a child, a second
degree felony. 	The trial court reduced the conviction to third
degree felony attempted sexual abuse of a child pursuant to Utah
Code section 76-3-402. 	Mr. King appealed his conviction. 	He
argued that the trial court erred by failing to individually
question jurors No. 2 and No. 18. 	He also contended that his
counsel provided ineffective assistance by permitting the
potentially biased jurors to be seated.

No. 20060988 	4
¶10 	The court of appeals reversed Mr. King’s conviction.
State v. King (King I), 2004 UT App 210, ¶ 27, 95 P.3d 282. 	It
held that the trial court failed to conduct a sufficiently
searching inquiry into the potential biases of jurors No. 2 and
No. 18. 	Id. 	The court of appeals did not reach the question of
whether Mr. King’s counsel was ineffective.
¶11 	The State petitioned for certiorari. 	It faulted the
court of appeals for granting Mr. King a new trial on an issue he
had not preserved for appeal. 	We granted certiorari and agreed
with the State that the court of appeals erred when it excused
Mr. King’s failure to preserve his objection to the seating of
jurors No. 2 and No. 18. 	We held that the trial court did not
commit plain error when it seated the potentially biased jurors,
reversed the court of appeals, and remanded with instructions to
consider Mr. King’s ineffective assistance of counsel claim.
State v. King (King II), 2006 UT 3, ¶ 26, 131 P.3d 202.
¶12 	The court of appeals followed our instructions and
again reversed Mr. King’s conviction. 	King III, 2006 UT App 355,
¶ 16, 144 P.3d 222. 	Applying the test for ineffective assistance
of counsel announced in Strickland v. Washington, 466 U.S. 668
(1984), the court of appeals held that Mr. King successfully
established that the presence of jurors No. 2 and No. 18 could be
traced to the ineffective assistance of Mr. King’s counsel. 	King
III, 2006 UT App 355, ¶ 9.
¶13 	After concluding that the lawyer’s representation of
Mr. King was deficient, the court of appeals turned to the second
element of Strickland: 	prejudice. 	The court held that the
biases of jurors No. 2 and No. 18 could be presumed and that Mr.
King was not, therefore, required to prove that the jurors were
actually biased. 	Id. ¶ 13. 	Because the presence on a jury of
jurors who are actually biased presumptively deprives a defendant
of a fair trial, United States v. Martinez-Salazar, 528 U.S. 304,
316 (2000), the court of appeals found that the presence of
jurors No. 2 and No. 18 prejudiced Mr. King and ordered a new
trial. 	King III, 2006 UT App 355, ¶ 16. 	The State’s second
petition for certiorari followed. 	The question presented to us
on this certiorari review is whether Strickland prejudice may be
presumed when a lawyer fails to sufficiently probe prospective
jurors who exhibit the potential for bias. 	We hold that it may
not. 	We therefore reverse the holding of the court of appeals
and remand to the trial court pursuant to Utah Rule of Appellate
Procedure 23B for the purpose of determining whether either juror
was actually biased against Mr. King.
STANDARD OF REVIEW

5 	No. 20060988
¶14 	The court of appeals’ determination that Mr. King may
be presumed to have been prejudiced by the presence of jurors No.
2 and No. 18 on the jury was a legal ruling that we review for
correctness. 	State v. Leatherbury, 2003 UT 2, ¶ 7, 65 P.3d 1180.
ANALYSIS
¶15 	The Sixth Amendment guarantees a criminal defendant the
right to effective assistance of counsel. 	Strickland v.
Washington, 466 U.S. 668, 685-86 (1984). 	The Sixth Amendment
also guarantees a criminal defendant the right to an unbiased and
impartial jury. 	Morgan v. Illinois, 504 U.S. 719, 726 (1992).
In this appeal, we take up the contention of Mr. King that he was
denied his Sixth Amendment rights when his counsel failed to see
to it that prospective jurors who may have revealed actual bias
against him were further questioned about their bias.
¶16 	The United States Supreme Court has extended the
guarantees of the Sixth Amendment to defendants in state criminal
actions through the Fourteenth Amendment to the United States
Constitution. 	Duncan v. Louisiana, 391 U.S. 145, 149 (1968).
That Court, however, has not spoken directly to Mr. King’s Sixth
Amendment claim, although it has repeatedly recognized that the
seating of any juror who should have been dismissed for cause
requires reversal. 	United States v. Martinez-Salazar, 528 U.S.
304, 316 (2000); Ross v. Oklahoma, 487 U.S. 81, 85 (1988); Parker
v. Gladden, 385 U.S. 363, 366 (1966).
¶17 	In this case, the court of appeals expanded the Supreme
Court’s pronouncement regarding biased jurors in two ways, one
horizontal and one vertical. 	It stretched the principle that the
presence of an actually biased juror mandates reversal
horizontally to reach jurors who exhibited not just actual bias
but also to those who displayed the potential for bias. 	It
extended the principle vertically by making jury bias reversal
available not only through a challenge to the seating of a juror
but as part of an ineffective assistance of counsel claim as
well.
¶18 	Under Strickland, a defendant is denied his Sixth
Amendment right to effective counsel if the attorney’s
performance was objectively unreasonable and if the attorney’s
deficient performance prejudiced the defendant. 	466 U.S. at 687.
In this appeal, only the prejudice element is at issue. 	The
Supreme Court has confirmed that a defendant suffers prejudice
when he is denied a fair trial because a biased juror sat on the
jury. 	Martinez-Salazar, 528 U.S. at 316. 	When the ineffective
assistance of counsel results in the seating of a juror who is

No. 20060988 	6
actually biased against the defendant, well-reasoned authority
supports a finding that the prejudice required by Strickland will
be presumed. 	Hughes v. United States, 258 F.3d 453, 463 (6th
Cir. 2001). 	Consistent with the reasoning in Hughes, which we
find persuasive, had the deficient performance of Mr. King’s
counsel permitted an actually biased juror to be seated, we would
presume that Mr. King’s Sixth Amendment right to effective
assistance of counsel had been violated. 	See id.; see also
Miller v. Webb, 385 F.3d 666, 672 (6th Cir. 2004). 	We would,
therefore, align ourselves with those courts that have endorsed a
vertical extension of the Sixth Amendment guarantee of a fair and
impartial jury to claims that the ineffective assistance of a
defendant’s counsel permitted the seating of an actually biased
juror. 	We are aware, however, of no case from any jurisdiction
supporting the court of appeals’ horizontal expansion of the
Sixth Amendment to require reversal of a guilty verdict based on
possible juror bias. 	Furthermore, the court of appeals’
horizontal stretching of the bounds of jury bias error is
illogical and would lead to perverse results.
¶19 	No court has found, or has Mr. King claimed, that
jurors No. 2 and No. 18 were actually biased. 	Rather, each had,
through their responses to the trial judge’s questions, made
disclosures that suggested potential bias. 	In response to Mr.
King’s attack on the propriety of seating jurors No. 2 and No.
18, we observed that the type of question posed to the venire
persons concerning their experiences with sexual abuse was one
which, if answered affirmatively, would raise “a question of
potential bias.” 	King II, 2006 UT 3, ¶ 22, 131 P.3d 202
(internal quotation marks omitted). 	Mr. King had not, however,
preserved the issue of juror bias for appeal. 	Id. ¶ 18. 	As a
consequence, we reviewed the trial judge’s decision to seat
jurors No. 2 and No. 18 for plain error and required Mr. King to
establish that he suffered harm as a result of the presence of
jurors No. 2 and No. 18 on the jury. 	Id. ¶ 21. 	We held in King
II that he had not met his burden of demonstrating that the trial
judge erred. 	Id. ¶ 24. 	On remand to consider a claim of
ineffective assistance of counsel, the court of appeals concluded
that it was not necessary for Mr. King to show prejudice because
the presence of potentially biased jurors “[bore] the hallmarks
of those rare situations specifically mentioned in Strickland
where prejudice may be properly presumed.” 	King III, 2006 UT App
355, ¶ 10, 144 P.3d 222.
¶20 	The law resorts to presumptions when it is short on
facts and feels compelled to assign to one party or another the
consequences that flow from the uncertainty caused by incomplete
facts. 	Presumptions do not inhabit a world in which everything

7 	No. 20060988
is subject to empirical verification. 	To be sure, even if
empirical verification were possible, the need for normative
judgments would endure, but not the often vexing policy choices
of burdening someone with the risks created by unknown
circumstances.
¶21 	Presumptions in the realm of criminal law are grounded
in the values and aspirations of a nation committed to the
principle of equal justice under law. 	Thus, when we declare that
a criminal defendant is presumed innocent, we reaffirm through
that presumption our commitment to the principle that a
government’s monopoly on coercive power must be constrained by
closely guarded guarantees of individual liberty. 	The
presumption of innocence underscores the role of presumptions as
a substitute for facts. 	When jurors are instructed to presume a
defendant innocent at the beginning of a trial, they possess no
facts about the case. 	The presumption of innocence serves as a
temporary stand-in for the facts that will later emerge during
the trial. 	Standing sentinel against the arbitrary exercise of
the power of the State, the presumption of innocence honors the
dignity and autonomy of the individual.
¶22 	We recently discussed the seminal values that inform
presumptions in the criminal law when we explained the
significance of the “beyond a reasonable doubt” standard for
establishing guilt. 	We stated,
The degree of certainty of guilt that we
insist be held by those entrusted with
judging the fate of persons charged with
crimes before we will permit the State to
wield its power to punish is not only a
measure of evidence, but also in a more
fundamental sense a gauge of our nation’s
conscience. 	The measure of certainty the law
demands before finding guilt reflects the
balance we are willing to strike between
ensuring that all of the guilty are brought
to justice and preventing the conviction and
punishment of the innocent.
State v. Reyes, 2005 UT 33, ¶ 11, 116 P.3d 305.
¶23 	Of course, a criminal defendant is not entitled to the
benefit of every presumption. 	The array of procedures that
comprise a criminal prosecution, procedures that collectively
fall within the category of procedural due process of law, have
earned our confidence for the fairness of the outcomes they

No. 20060988 	8
produce. 	In a country like ours that is committed to the rule of
law, the presence of reliable criminal procedures provides,
through their consistent application, a substantial measure of
confidence in the correctness of verdicts rendered after trials
featuring competing versions of events. 	The extent of our
confidence that our criminal procedures, when properly followed,
yield a just result is reflected in yet another presumption, a
presumption of regularity that, when applied to a criminal
conviction, benefits the State. 	See, e.g., Parke v. Raley, 506
U.S. 20, 29 (1992); Lafferty v. State, 2007 UT 73, ¶ 50, 175 P.3d
530; State v. Ferguson, 2007 UT 1, ¶ 13, 169 P.3d 423; State v.
Robison, 2006 UT 65, ¶ 21, 147 P.3d 448; State v. Triptow, 770
P.2d 146, 149 (Utah 1989).
¶24 	So great is our trust in the overall reliability of
criminal procedures that even in those instances where procedural
requirements have been deviated from or overlooked, we typically
place on a defendant the obligation to demonstrate that the error
prejudiced him. 	See, e.g., State v. Powell, 2007 UT 9, ¶ 21, 154
P.3d 788; State v. Robertson, 932 P.2d 1219, 1227 (Utah 1997);
State v. Hamilton, 827 P.2d 232, 240 (Utah 1992).
¶25 	Choosing which party a presumption will benefit is
influenced by what is at stake for each party and by which party
would be likely to benefit if the unknown facts became known.
When the consequence of drawing the wrong conclusion about the
meaning of insufficient facts jeopardizes substantially the life
or liberty of a criminal defendant, the law is more likely to
rescue the defendant by adopting a presumption that the inference
to be drawn from the meager facts must be one that best serves
the interests of the defendant. 	Conversely, where a criminal
defendant would be unlikely to benefit were the unknown facts to
be uncovered, the law will more likely provide a presumption in
favor of the State.
¶26 	The court of appeals found the seating of jurors No. 2
and No. 18 resulting from trial counsel’s deficiency to be a
circumstance in which the defendant was entitled to benefit from
a presumption of prejudice. 	It is against this background of the
nature and function of legal presumptions generally that we
examine whether the court of appeals properly extended a
presumption of prejudice to Mr. King.
¶27 	Although this appeal concerns a claim of potential and
not actual juror bias--an important distinction upon which we
will elaborate below--an examination of the Sixth Amendment
jurisprudence involving actual juror bias provides a valuable

9 	No. 20060988
perspective into the many presumptions that form the structural
framework of that body of law.
¶28 	A defendant who is convicted of a crime by a jury
comprised of even one member who has exhibited actual bias is
entitled to a new trial. 	Martinez-Salazar, 528 U.S. at 316.
This principle of law is grounded in the presumption that the
presence of a biased juror so undermines the fairness and
impartiality of the verdict that the Sixth Amendment right to a
fair trial can be preserved only by setting aside the conviction.
That the participation of an actually biased juror in a guilty
verdict causes a Sixth Amendment violation meriting a new trial
is, however, neither inevitable nor obvious. 	The conclusion that
an unfair trial results from the presence of a biased juror
presumes that the juror’s vote was based on their bias rather
than being based on a determination reached following an
objective application of the law to the facts. 	It is quite
possible, however, that the opposite was in fact the case.
Embedded within the jury system are two safeguards designed to
protect a defendant against being convicted by even the most
shamelessly biased juror: 	the requirements that a jury be
comprised of a minimum of four jurors and that the verdict be
unanimous. 	Utah Const. art. I, § 10. 	Even were a biased juror
to advocate for an outcome that was based on his bias rather than
on an objective application of the law to the facts, because the
verdict must be unanimous, he would have to convince all of his
fellow jurors to do the same. 	A conviction resulting from votes
cast based on bias could be prevented by only one juror insisting
on properly weighing the evidence.
¶29 	One might plausibly contend that even where a guilty
verdict was reached with the vote of an actually biased juror,
the convicted defendant should be required to prove that the
juror’s bias actually influenced their vote or that the
constitutional obstacles to a biased juror holding sway failed,
resulting in prejudice to the defendant. 	The law has chosen
instead to relieve the defendant of the burden of showing
prejudice by presuming it.
¶30 	Strickland’s discussion of prejudice in the context of
ineffective assistance of counsel also endorsed the use of
presumptions of prejudice where its presence “is so likely that
case-by-case inquiry into prejudice is not worth the cost.” 	466
U.S. at 692. 	We, too, have recognized the propriety of relying
on the presumption of prejudice when the barriers to proof are
unreasonably high. 	In Parsons v. Barnes, we stated, “pursuant to
our ‘inherent supervisory power over the courts,’ we may presume
prejudice . . . where it is ‘unnecessary and ill-advised to

No. 20060988 	10
pursue a case-by-case inquiry to weigh actual prejudice.’” 	871
P.2d 516, 523 n.6 (Utah 1994) (quoting State v. Brown, 853 P.2d
851, 857, 859 (Utah 1992)).
¶31 	The court of appeals looked to these statements
justifying a presumption of prejudice when the practical problems
of proving it are too great to lend authority to its conclusion
that Mr. King was entitled to the presumption. 	The court summed
up its view, noting that “presuming prejudice rather than
requiring King to demonstrate the existence of palpable prejudice
is necessary as a practical matter in this case.” 	King III, 2006
UT App 355, ¶ 13.
¶32 	We concede that considerable obstacles are likely to
confront a defendant faced with proving prejudice when much of
the relevant evidence resides with the jurors themselves.
Indeed, in King II, we acknowledged that it is an extremely
difficult task to remedy juror bias post-verdict. 	2006 UT 3,
¶ 17. 	Difficulty in proving prejudice is not, however, the sole
or controlling consideration in our analysis of whether to extend
a presumption of prejudice to defendants who assert that a
potentially biased juror was permitted to vote for conviction.
¶33 	Not every claim of prejudice accompanied by obstacles
to proof can claim a right to a presumption. 	Only those
circumstances that by their nature make prejudice “so likely that
case-by-case inquiry into prejudice is not worth the cost” will
justify a presumption. 	Strickland, 466 U.S. at 692. 	To require
a defendant to pursue a potentially costly inquiry into prejudice
is appropriate when prejudice is less evident, less likely. 	We
conclude that prejudice is substantially more likely to be
present when an actually biased juror contributes to a guilty
verdict than when a potentially biased juror is allowed to pass
judgment on a defendant.
¶34 	Where actual bias is present, presumptions are called
upon to stand in place of factual answers to two secondary
questions concerning the effects of a juror’s bias: 	did the
juror’s bias influence his vote for conviction and did his bias
influence the votes of other jurors? 	Because the major premise,
actual bias, is grounded in fact, we may presume with greater
confidence that the answer to both questions is “yes.” 	By
contrast, where a juror is merely suspected of bias, the
presumption we are called upon to invoke concerns not only the
effect of bias on the deliberations of the biased juror and his
fellow jurors but also presumes the major premise--the actual
bias of the juror. 	Where both the existence of juror bias and
the effect of that possible bias are assumed, a presumption of

1 The court of appeals drew from the trial record evidence
to defend its invocation of a presumption of prejudice that it
interpreted as showing that it was more likely than not that
jurors No. 2 and No. 18 were actually biased. 	The court stated,
[O]f the nine prospective jurors indicating
bias who were questioned further in this
case, none of them served on the jury. 	And
the majority of them--six of the nine--were
dismissed for cause, while two more were
removed by peremptory strikes. 	Given this
statistical reality, it seems highly unlikely
that after further questioning the two
overlooked jurors would have both been
allowed to sit on the jury--both of them
being passed for cause and both of them
avoiding peremptory strikes.
King III, 2006 UT App 355, ¶ 11 n.4 (emphasis in original).
While we caution that given our decision to remand this matter
for a rule 23B hearing, neither the court of appeals’ comments on
the merits of Mr. King’s claim of prejudice nor our critique of
those comments are relevant, we find the court of appeals’
“statistical reality” to be flawed. 	What the record actually
reveals is that only one of the six prospective jurors who
indicated that they, a family member, or a friend had experienced
abuse further indicated that their experience would impair their
(continued...)
11 	No. 20060988
prejudice is not justified because there is not a sufficient
likelihood that prejudice in fact resulted.
¶35 	We have little fear that by declining to remove the
distinction between actual and potential bias from the context of
the presumption of prejudice under Strickland we will lighten the
duty of judges and attorneys to investigate and expose with vigor
the biases of prospective jurors at the jury selection stage of
trials. 	To the extent that defendants are disadvantaged by being
required to demonstrate prejudice when their counsel’s deficient
performance allows a potentially biased juror to be seated, that
consequence is outweighed by what we perceive to be the
considerable untoward problems that would befall courts as they
attempt to discern in a principled way what constitutes suspicion
of bias sufficient to trigger the presumption of prejudice and
require a new trial. 	While identifying actual bias is not a task
free from challenges, it is one with which courts have acquired
experience over time that can be drawn upon to discriminate
between cases where a presumption of prejudice can be applied
with confidence and cases where such a presumption would be too
speculative. 1

1 (...continued)
ability to be fair and impartial. 	This prospective juror was
dismissed for cause. 	Three of the remaining five jurors were
examined individually by the trial judge. 	All three were
unequivocal in their beliefs that they could be fair and
impartial despite their experiences with abuse. 	The trial judge
nevertheless dismissed one of the three because of her “body
language.” 	The State exercised a peremptory challenge to remove
a second. 	The third did not sit on the jury because her high
number among the prospective jurors made it impossible for her to
be selected. 	Unlike the court of appeals, we are at a loss to
draw any reliable statistical conclusions from this state of
affairs.
No. 20060988 	12
¶36 	By recognizing a presumption of prejudice only when a
defendant has established the presence of actual bias, we also
bring consistency to our review of both direct challenges to the
presence of potentially biased jurors and challenges to
potentially biased jurors that exist within claims of ineffective
assistance of counsel. 	In the course of rejecting Mr. King’s
assertion that he was entitled to plain error review of his jury
bias claim in King II, we held that the trial judge had not
abused her discretion when she declined to sua sponte conduct
further questioning of jurors No. 2 and No. 18. 	2006 UT 3, ¶ 24.
It was apparent to us that the trial judge did not deviate from
the guidance we provided in State v. Litherland for dealing with
potential juror bias. 	In Litherland, we stated,
It is generally inappropriate for a trial
court to interfere with counsel’s conscious
choices in the jury selection process,
notwithstanding the existence of a reasonable
basis for objecting to those jurors. 	Only
where a juror expresses a bias or conflict of
interest that is so strong or unequivocal as
to inevitably taint the trial process should
a trial court overrule trial counsel’s
conscious decision to retain a questionable
juror.
2000 UT 76, ¶ 32, 12 P.3d 92.
¶37 	We found that the jurors’ voir dire responses fell
short of being “‘so strong or unequivocal as to inevitably taint
the trial process.’” 	King II, 2006 UT 3, ¶ 24 (quoting
Litherland, 2000 UT 76, ¶ 32). 	Were we to apply the presumption
of prejudice to direct challenges to the seating of potentially

13 	No. 20060988
biased jurors, we would overturn Litherland and King II and
remove from consideration strategic choice as a reason for trial
courts not to interfere with the jury selection process.
¶38 	The effect of extending the Strickland presumption of
prejudice to errors of counsel that allow the seating of
potentially biased jurors would be to distort a well-developed
body of law that strikes a proper balance between the interests
of the adversarial process and the guarantees of a fair trial in
the jury selection process.
¶39 	While we determined in King II that the trial judge did
not err when she made no further inquiry into the potential bias
of jurors No. 2 and No. 18, we remanded the case to the court of
appeals to consider Mr. King’s claims that his trial counsel was
deficient for failing to see to it that further inquiry took
place. 	2006 UT 3, ¶ 25. 	We have now held that the court of
appeals erroneously decided the question on remand by applying a
presumption of prejudice to counsel’s errors that allowed the
seating of potentially biased jurors No. 2 and No. 18. 	To
prevail on his claim that his counsel was deficient, Mr. King
must demonstrate actual prejudice. 	In this setting, actual
prejudice is synonymous with actual juror bias.
¶40 	We agree with the State’s proposal that rule 23B(e) of
the Utah Rules of Appellate Procedure offers the most effective
method to determine if jurors No. 2 and No. 18 were actually
biased. 	We promulgated rule 23B to provide a fair and
expeditious means to find facts relating to claims of ineffective
assistance of counsel.
¶41 	In Utah, we have consistently held that rule 23B allows
for the defense or prosecution to move for findings necessary to
a determination of a claim of ineffective assistance of counsel.
Litherland, 2000 UT 76, ¶ 17 n.7; see also Utah R. App. P. 23B.
Moreover, rule 23B allows an appellate court to remand for a
hearing on its own motion, provided “‘the claim has been raised
and the motion would have been available to a party.’” 	State v.
Hopkins, 1999 UT 98, ¶ 13 n.1, 989 P.2d 1065 (quoting Utah R.
App. P. 23B(a)); see also State v. Garrett, 849 P.2d 578, 581
(Utah Ct. App. 1993). 	The availability of such a motion is based
“upon a nonspeculative allegation of facts, not fully appearing
in the record on appeal, which, if true, could support a
determination that counsel was ineffective.” 	Utah R. App. P.
23B(a). 	A remand on its own motion “allows appellate court[s] to
accommodate unusual cases or situations.” 	Litherland, 2000 UT
76, ¶ 17 n.7.

No. 20060988 	14
¶42 	The Supreme Court determined that posttrial hearings
can be an effective remedy for allegations of juror partiality in
federal cases. 	Smith v. Phillips, 455 U.S. 209, 215 (1982). 	In
Phillips, where a juror submitted a job application with the
District Attorney’s Office during the trial, the Supreme Court
held that a posttrial hearing to question the juror about his
potentially biased actions was an adequate means to determine
actual bias. 	Id. at 212.
¶43 	Rule 23B is “an appropriate procedural tool” to remedy
any deficiencies in the record caused by counsel’s alleged
ineffective assistance. 	Litherland, 2000 UT 76, ¶ 16. 	It is
especially appropriate in this case to determine if the jurors
who were not further questioned would have been biased despite
their claims that they would not.
¶44 	Mr. King argues that such a posttrial hearing would
violate Utah Rule of Evidence 606(b), which prohibits queries
into jury deliberations. 	Although an after-the-fact inquiry into
jury bias presents unique evidentiary challenges, we do not agree
that rule 606(b) renders futile Mr. King’s quest for the truth
about the ability of jurors No. 2 and No. 18 to be fair and
impartial.
¶45 	Utah Rule of Evidence 606(b) prohibits “virtually all
inquiries into the jury deliberation process.” 	State v. Santana-
Ruiz, 2007 UT 59, ¶ 33, 167 P.3d 1038. 	These restrictions are
motivated by a desire to insulate the jury and protect jurors
from being harassed by defeated defendants. 	It does not allow
for any questioning of the jury about “‘any matter or statement
occurring during the course of the jury’s deliberations.’” 	State
v. Lucero, 866 P.2d 1, 4 (Utah Ct. App. 1993) (quoting Utah R.
Evid. 606(b)).
¶46 	A rule 23B hearing is not, however, a query into jury
deliberations. 	It is instead a forum to conduct posttrial voir
dire. 	We are mindful that there is no way to reproduce exactly
the environment of pretrial voir dire in a rule 23B hearing.
Witnesses will inevitably be influenced by the fact that a trial
and jury deliberations occurred. 	We are satisfied, however, that
despite the difficulty it imposes on Mr. King, a rule 23B hearing
is the appropriate forum to address his claims of jury bias.
CONCLUSION
¶47 	In conclusion, we hold that failure of Mr. King’s
counsel to further investigate the potential bias of prospective
jurors does not warrant a presumption of prejudice. 	Where both

15 	No. 20060988
the existence of juror bias and the effect of that possible bias
are assumed, a presumption of prejudice is not justified because
there is not a sufficient likelihood that prejudice in fact
resulted. 	In order to prevail on his claim of ineffective
assistance of counsel, Mr. King must show that his counsel’s
actions prejudiced him because those actions allowed the seating
of an actually biased juror. 	A rule 23B hearing is the
appropriate forum for determining whether either juror No. 2 or
juror No. 18 was actually biased because of their prior
experiences with sexual abuse. 	We therefore reverse the holding
of the court of appeals and remand to the trial court to conduct
a hearing pursuant to Utah Rule of Appellate Procedure 23B to
determine whether jurors No. 2 and No. 18 were biased.
---
¶48 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Justice Parrish concur in Justice Nehring’s
opinion.