A blog about the very small percentage of jurors who fail to follow the judge's instructions, including doing independent Internet research, using social media (such as Facebook) to contact parties and lawyers, and blogging about the trial. Juror misconduct frequently results in mistrials and a waste of resources. Links will be provided to sample jury summonses, jury instructions, and other resources to improve juror education and minimize juror misconduct, thereby promoting fairness of trials.
This law review article raises few issues not previously discussed in this blog, but the writer does focus on the unique problem of discovering a juror's texting as opposed to a juror commenting on Facebook or Twitter. He concludes that as to texting the issue is not what the texter sends but rather what they receive via text message.
It has always amazed me the way that evidence, even in 2017, is presented in jury trials in a 20th century way, even with video depositions and digital graphic models. It is well-documented that individuals learn in a variety of ways: by listening, by seeing, by a combination of the two plus taking notes, by having a dialogue with questions and answers. I have presided over jury trials where there are few if any maps or photos depicting where and how the incident occurred. Yet lawyers and judges are shocked when jurors do on-line research at home or even visit the scene of the crime or accident. Particularly millenials want all of the information to make a reasoned decision and they are used to having it at their fingertips. They believe they can sift the truth from the untrue online. Yet judges and lawyers put them "in a box", literally and figuratively, telling them they can only consider what they hear and see during trial in the courtroom.
One of the many possible solutions to reducing the possibility of jurors hitting the Internet for answers is a stipulated trial notebook, maybe a three-ring binder or even a tablet not accessible to the Internet, containing:
Photos and videos
Important paper exhibits
names and photos of witnesses
glossary of terms and their definitions, such as medical and scientific terms
Jurors want the story....THE WHOLE STORY. They don't like that the judge and lawyers (who are in an exclusive club) are keeping them from hearing and seeing the whole story. Jurors want to make a good decision.
Here is a link to a VT Supreme Court decision sustaining the dismissal from employment of a state worker who committed misconduct as a juror during a federal capital murder jury trial. The juror visited the crime scene contrary to the judge's instructions and shared his observations with his fellow jurors. Five years later he revealed these facts to the defendant's attorneys and signed an affidavit about what he had done. However, under oath in a post-trial hearing in federal court he denied what he had admitted in his sworn affidavit, thereby compounding his misconduct. The murder conviction was vacated and a new trial ordered. News of his misconduct got to his supervisors and he was fired. He filed a grievance. His firing was sustained by the VT Supreme Court.
The federal court found this juror had displayed "brazen disobedience, dishonesty, and unwillingness to decide the case based upon the evidence presented at trial." He was terminated from state employment for gross misconduct related to his fitness to serve as a state employee.
Some judges have suggested the court start allowing jurors to submit questions. A Minnesota judge did this for many years in civil cases. The court for a variety of good reasons leaves jurors in the dark about the parties or defendant in a criminal case.
I love the photo: women jurors in hats and men in suits and ties. A prospective juror arrived in our court this week in a t-shirt with the name of his favorite team, cargo shorts and flip-flops.
Ah, spring, when a young man's fancy turns to...
A Florida juror has been jailed for his Facebook false communications with a fellow juror (post-trial)and his research of a term in violation of the judge's admonitions. He attempted to get the other juror to make false allegations about jury misconduct in order to get the guilty verdict overturned:
The issue of racial makeup of juries came to a head when a juror arose in a Tennessee courtroom and stated that he felt it was unfair for two black men to be tried when no person of color was on the jury panel.
Here is a link to the newspaper article which discusses BATSON challenges to an attorney's peremptory strikes of jurors. If there is an objection to a strike as being racially-motivated, the striking lawyer must establish a race-neutral basis for striking that juror.
The fact relevant to this blog is that it is alleged that during a break the juror's were discussing this issue, thereby violating the judge's admonition not to discuss the case:
Jurors are usually not sequestered during deliberations, but if sequestered then only during deliberations. I have seen it suggested that jurors be sequestered during the entire trial, not just deliberations, to prevent violations of the court's orders not to do Internet research or discuss the case on social media. Here is an article about life for jurors so sequestered:
Former NY police officer was convicted of manslaughter. The juror lied during voir dire about any family members having been accused of a crime. He also posted anti-police comments on social media prior to trial. Some speculate that he really wanted to serve on the jury. Defense counsel are seeking a new trial.
In a decision reported March 14 the Minnesota Court of Appeals found that a MN judge did not err in not sua sponte excusing a drunk juror during deliberations who had also been disruptive during lunch at a restaurant. The criminal defendant's counsel chose to ask the court to dismiss the jury for the day. This occurred and the juror deliberated the next day and the defendant was found guilty and appealed. This case also raises the question of how much inquiry the judge can make of the juror without first offering the juror the opportunity to consult an attorney before incriminating herself for contempt of court for being drunk at court.
Here is a link to a thought-provoking article about criminalizing juror misconduct related to social media. The author states that deterrence is the primary goal, but comments at the end on the various objections to this approach:
1. It impedes the trial judge's ability to inquire into the misconduct; the alleged "bad juror" can refuse to incriminate themselves by responding to the judge's inquiry.
2. Judges are resistant to the legislature intruding in the court's province, the courtroom.
3. Jurors will be even more discouraged from even showing up for jury duty.
Here we go again....and again! It is frankly astonishing that apparently intelligent jurors feel the need to blab on Facebook about their jury experience during the trial despite the strong warnings of the judge. This juror fined $1,000. Fears she may lose her job.
A juror remained silent when voir dire questions were posed about having been charged with a crime. When it was discovered that this juror had pending charges the defense moved for a new trial which the trial judge denied. Appeals court reversed.
It's happening again this week. A prominent reporter on one of the financial cable news networks is on social media expounding on the boredom of waiting at the courthouse to be called for jury duty. He is to be praised for doing his civic duty. But jury duty is not intended to be entertainment. Everyone knows there is a lot of waiting even if you are selected to serve on a jury. So bring a good book and several newspapers (yes, Millenials, some people actually read newspapers ON PAPER) You may find the experience quite enlightening. It's only a few days out of your busy lives. Indeed some people have had their lives interrupted while they serve on active duty in the military in places like Afghanistan so you have the privilege of serving on a jury. End of sermon.
On the Jur-E Bulletin of the National Center for State Courts it was suggested that judges define for jurors during voir dire what the court means when it says "friend" during jury selection. It has a different connotation today than even 10 years ago. Here the juror was a realtor and had a thousand "friends" on Facebook for networking purposes.
A juror told two other jurors that she saw 2 African-American men in her neighborhood and that such an occurrence was unusual and she thought a conspiracy related to the trial. The other 2 jurors were sympathetic. The trial judge failed to remove the juror from the case and the defendant was convicted. Reversed on appeal.