Friday, April 4, 2014

Article "Neuro-Voir Dire and the Architecture of Bias" as Applied to Jurors

Law Prof. Dov Fox offers a new approach in looking at juror bias and argues that the court "should limit the interrogation and disqualification of prospective jurors to personal interests in the case...and to case-specific beliefs."  Brain scanning of jurors for bias?


Tuesday, March 25, 2014

Use a Questionaire in Every Criminal Trial?

I have become increasingly convinced that a questionaire, even a short one, should be used in every criminayl jury trial.  Last week a colleague was informed on the second day of a DWI trial by the prosecutor that he had prosecuted one of the impaneled jurors for DWI.  The juror had failed to disclose this in response to the standard voir dire question about whether any of the jurors had been convicted of a crime.  I think jurors will be more forthright in disclosing such information in writing and out of the hearing of other jurors.  The question can also make it clear that DWI is a crime, not just a minor traffic violation.  The questionaire can be tailored to the particular case and ask the juror if they would prefer individual questioning.  I may also hand out the questionaire in the courtroom, review the questions with the jurors, and explain emphatically the need to answer truthfully.

Wednesday, February 12, 2014


Lawyers know that communicating with prospective jurors is verboten.  Amazingly a lawyer sent an associate to sneak in the jury assembly room to make observations.  Lawyers in big trouble.  Link:

Friday, January 31, 2014

Entire Jury Pool Discharged After Juror Google-searches Defendant

In April 2013 in Cincinnati Ins. Co. v. Omega Flex , a juror Googled the name of the defendant and shared with other jurors that defendant had a $10 million verdict against it in another case.  It was actually $1 million.  The judge and counsel voir dired several jurors at the bench within sight of the panel.  On defense motion, a magistrate discharged the whole jury pool.  This and other cases lead me to conclude that a formal hearing in which each juror potentially tainted is questioned should be conducted out of the hearing of the other jurors.  An informal bench conference is inadequate.  Rushing to get a jury impaneled without a formal hearing is bad practice.

Thursday, January 23, 2014

Juror Researching Penalty Causes Mistrial of Rape Case

Juror said he fell back into old work habits by researching the penalty in the rape case.  He disregarded the judge's admonitions, causing a mistrial after a 5-week trial.  The poor victim must go through the anguish of testifying once again.

Monday, January 13, 2014

Another Facebooking Juror May Cause Mistrial

Juror's rather innocuous posts on Facebook regarding the trial experience may still be found to have violated the judge's admonitions against discussing the case on Facebook or Twitter.  Some people, in fact many people, insist on sharing every detail of their lives on social media even when warned not to by the court.

Tuesday, January 7, 2014

Link to Prof. Hoffmeister's Interview on His New Book "Social Media in the Courtroom"

Defendant Entitled to Hearing Regarding Juror's Non-verbal Communications With Husband in Courtroom During Trial

This link is to a federal decision granting a hearing to defendant following a murder conviction in which the trial court must investigate further a juror's non-verbal communications with her husband in the courtroom audience during the trial.  These decisions are becoming more frequent in which the trial judge's failure to conduct a hearing regarding alleged juror misconduct is found to be error.
The harmlessness of a juror's conduct can only be determined after a full-blown hearing.

Friday, December 6, 2013

Jurors Can't Be Compelled to Reveal Social Media Account Information

The judge presiding over the penalty phase of the Jodi Arias trial has denied defense motion to order jurors to reveal Twitter account information so counsel can monitor jurors to discover if any are communicating about the case via Twitter.

Saturday, November 16, 2013

Bibles in the Deliberation Room?

Courts have ruled inconsistently whether Bibles or other religious materials are "extraneous materials" and, therefore, not permitted in the jury deliberation room.  LINK:

Monday, November 4, 2013

Error for Trial Court To Order Plaintiff's Attorney to Remove Content About Prior Trial Successes From Lawfirm Website

The trial judge ordered the plaintiff's lawyer to remove content on the law firm's website which discussed successful similar cases they had tried.  The appellate court reversed as "prior restraint" on First Amendment speech.  Trial judge was not justified in trying to prevent jurors from accessing the lawyer's website despite judge's admonitions that jurors not do so.  This is in the realm of "forbidden fruit," that is, telling jurors not to do something makes doing so more tempting.

Tuesday, October 22, 2013

Juror Gives Attorney the Finger and is Excused from Jury

Juror (who is an attorney) was not removed from jury despite allegedly giving defense attorney the finger when both were attempting to catch a taxi outside courthouse.  However, juror apparently dismissed for having read newspaper accounts about the trial:


Friday, October 4, 2013

Grand Juror Who Took Photo of Police Officer Witness Arrested and Charged Himself

A 19 year old grand juror took a photo of a police officer witness and sent it to his girlfriend, violating the integrity and secrecy of the grand jury.  He was arrested and charged with a misdemeanor.

Friday, September 13, 2013

TENN Supreme Court Remands Case to Trial Court for Hearing on Juror Communications With Witness

In this case the trial judge failed to hold an evidentary hearing regarding the alleged contact via social media (Facebook) between a juror and expert witness.  The lesson for judges is that an evidentary hearing should be held to determine the nature of the contact and whether a mistrial is warranted.

Link to TN Supreme Court opinion:

Friday, August 30, 2013

Mistrial After Victim's Father Gives Juror Stranded at Courthouse a Ride Home

Despite warnings from the judge, some jurors just don't understand the importance of avoiding contact with lawyers, witnesses, and parties and members of their family:

Friday, August 23, 2013

Juror's Ethnic Slur Midtrial Results in Mistrial

Juror's ethnic slur about the defendants was heard after trial by a person on criminal probation and brought to court's attention prior to sentencing.  Here are links to an article and the federal district court opinion:

Monday, August 19, 2013


A mistrial was declared in a drug case after a juror failed to disclose knowing a witness and further violated the court's instructions by speaking to the witness outside the courtroom.

Friday, August 9, 2013

VT Hearing on Jurors' Alleged Misconduct in Voir Dire Should be Public Prosecutors Argue

This article brings to mind the issue of attorneys researching the backgrounds of jurors both before and after trial (for purposes of new trial motions).  There would be an incentive for defense counsel to withhold information on a juror's failure to answer honestly during voir dire and only bring forth the information if the defendant is convicted.  See prior posts here discussing this issue.

Thursday, July 18, 2013

High Cost of Sequestration

It has been reported that sequestering the 6 Zimmerman trial jurors has cost Florida $33,000 over the 3-week trial.  No incidents of jurors misconduct have been reported so far.  Many states including MN require 12 jurors plus several alternates for felony jury trials.  It is hard to imagine that any state judicial branch can afford over $60,000 to sequester a jury for the entire trial lasting 3 weeks or more.  But given the extensive media and public attention, plus the risks of jurors being contacted by unscrupulous people, in such a case there appears to be no alternative to insure a fair trial.


Tuesday, June 18, 2013

Ethical Issues Surrounding "Googling" Jurors During Voir Dire

Here is a link to a good article on the increasing use of social media searches of prospective jurors during voir dire and the ethical issues that may arise:

Some judges have prohibited the practice of, basically, lawyers impeaching prospective jurors about their biases and opinions based on blog or Facebook postings.  The article mentions a New Jersey appellate decision that found error where a trial judge prohibited investigating jurors on social media. 

This is an issue that should be addressed by trial judges long before the trial begins so that everyone is aware of the judge's rules.  Since 2011 Missouri has had a rule that counsel has an affirmative duty to disclose to the court prior to jury being sworn that a juror has been a party to litigation which they failed to disclose in voir dire.  Counsel is required to make a reasonable investigation on as to whether a juror has been a party to a lawsuit.

Monday, June 10, 2013

High Profile Trial Raises Juror-Social Media Concerns

A high profile trial starts today that will be all over the news.  I won't even mention the name so no one "Googling" it would come to this blog.  I have raised these concerns in prior posts:
1.  Jurors will seek definitions of legal terms, background on the defendant and victim and the lawyers on the Web
2.  Defendant's supporters previously set up a website to collect donations for attorney's fees.  Not sure if its still up.
3.  Some jurors would see the opportunity to make themselves the story, appear on the Today show, or make a book deal.
4.  Jurors will look for stories about the trial on the Internet and read comments from the public.
5.  Jurors will read articles on the Internet about pretrial motions on evidence and other issues.
6.  Jurors may be the target of members of the public: social pressure, coercion, intimidation, maybe even threats.
7.  Jurors may consider discussing the case on their Facebook page, unable to handle their perceived celebrity

It will be interesting to see how this all unfolds.

UPDATE:  Was it inevitable? Dismissed prospective juror attempts to watch trial, is escorted away.  Google it. I prefer not to state anything more.\

Sequestered jury can concentrate on its duty without distraction of social media:

Friday, June 7, 2013

CA Supreme Court Sustains Conviction Despite Juror Lying During Voir Dire, Two Others Viewing Prison Movie

The CA Supreme Court has refused to overturn a murder conviction despite one juror having lied about his past felony conviction and criminal records of his sons; and two jurors having watched a prison life movie "American Me" (1992) at the urging of another juror during deliberations and when they were deadlocked.


Friday, May 31, 2013

Juror Finds Appellate Opinion Regarding Defendant's Prior Trial in Same Case

This may be the worst case scenario.  A deliberating juror finds Online the appellate decision overturning Defendant's conviction in earlier trial of same case, full of inadmissible evidence.  Conviction overturned once again...for the THIRD TIME.