Examining Materiality of the Witness Testimony
In Core v. Core's Adm'rs, 139 Va. 1, 12-13, 124 S.E. 453, 456 (1924), the Virginia Supreme Court examined the materiality of the witness' testimony to determine the propriety of striking a prospective juror who was the brother of one of the witnesses in the case, applying by implication, an abuse of discretion standard, rather than a per se rule. Id. at 12, 124 S.E. at 456.
The Court further note that all of the states which have addressed this issue have similarly found no basis for creating a per se rule disqualifying a prospective juror who is closely related to a witness, such as a parent, child or sibling. See, e.g., Simpson v. State, 666 So. 2d 100 (Ala.Cr.App.1995); Kelly v. People, 121 Colo. 243, 215 P.2d 336 (1950); State v. Lee, 559 So. 2d 1310 (La.1990); Smith v. State 465 So. 2d 999 (Miss. 1985); State v. Christian, 206 W. Va. 579, 526 S.E.2d 810 (1999); Arner v. State, 872 P.2d 100 (Wyo.1994).
In the few instances when an appellate court found that the trial court had abused its discretion in seating a close relative of a prosecution witness, the determination turned on either the materiality of the witness' testimony, see e.g., Simpson, 666 So. 2d 100; Tucker v. State, 454 So. 2d 552 (Ala.1984); State v. Kilpatrick, 158 W. Va. 289, 210 S.E.2d 480 (1974), or on the fact that questioning of the prospective juror revealed bias, see, e.g., Christian, 206 W. Va. 579, 526 S.E.2d 810.