Monday, February 13, 2017

Some Things for Trial Lawyers to Consider in Trial

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
stipulated facts
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.

Friday, December 16, 2016

Juror Visits Scene of Crime Resulting in New Trial, Eventual Discharge From Employment for Misconduct as Juror

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.


https://www.vermontjudiciary.org/LC/Supreme%20Court%20Published%20Decisions/op16-123.pdf

Monday, October 10, 2016

SCOTUS Hearing Arguments Regarding Racial Bias In Jury Deliberations

Interesting post in SCOTUS blog about arguments before US Supreme Court regarding state law prohibiting defendant from introducing evidence of racial bias within the jury deliberation process.


http://www.scotusblog.com/2016/10/argument-preview-justices-to-consider-racial-bias-in-jury-deliberations/

Friday, August 12, 2016

Article "Are We Driving Jurors to the Internet?"

Here is a link to the article:


https://bol.bna.com/are-we-driving-jurors-to-the-internet-perspective/


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.

Friday, June 3, 2016

"Lovestruck" juror Jailed for Falsely Facebooking Another Juror and Research During Trial

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:


Link: http://www.mypalmbeachpost.com/news/news/crime-law/juror-gets-8-days-in-jail-for-researching-word-pus/nrTwd/

Wednesday, May 25, 2016

Proposed CA Law Would Allow Judges to Fine Jurors Up to $1,500 For Social Media Violations

Here is a link to LA Times article.  Perhaps jurors who admit to being "addicted" to social media and Internet research should simply be excused from jury service rather than risk a mistrial.
http://www.dailynews.com/general-news/20160424/california-jurors-misusing-the-internet-could-face-fines-up-to-1500

Friday, April 29, 2016

Juror's Objection to Lack of Diversity in Jury Panel Results in New Trial

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:


http://www.tennessean.com/story/news/crime/2016/04/25/nashville-jurors-objection-race-leads-new-trial/83290360/

Friday, April 22, 2016

The Unusual Precaution of Sequestration During an Entire Trial: Being Cut Off From All Media

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:


Linkhttp://www.tennessean.com/story/news/local/davidson%20/2016/04/15/life-sequestered-juror-vanderbilt-rape-case/82993214/

Friday, April 15, 2016

In Widely-Followed NY Trial, Juror Fails to Disclose Father Went to Prison; Also Fails to Disclose Pre-trial Anti-Police Posts on Social Media; Conviction in Jeopardy

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. 


LINK:  http://www.nytimes.com/2016/04/14/nyregion/juror-imperils-conviction-of-peter-liang-ex-officer-in-brooklyn-killing-of-akai-gurley.html?emc=eta1&_r=2

Tuesday, April 5, 2016

MN Judge Did Not Err in Immediately Excusing Juror Drunk During Deliberations

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.

Friday, April 1, 2016

Is Criminalizing Juror Misconduct the Only Solution?

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.


The article is short and worthy of reading.


http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1762&context=ndjlepp

Wednesday, November 4, 2015

Queens NY Juror Fined $1000 For Dishing on Facebook During Trial

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.

Linkhttp://www.nydailynews.com/new-york/queens/exclusive-queens-juror-fined-facebook-blabbing-article-1.2421830

Friday, October 30, 2015

Conviction Reversed Where Judge Failed to Grant New Trial Motion When Juror Had Failed to Disclose Pending Felony Charges

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.

https://acis.alabama.gov/displaydocs.cfm?no=692999&event=4H50U23P3

Wednesday, October 7, 2015

Celebrities Called to Jury Duty Should Not Criticize "the Boredom"

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.                                

Friday, October 2, 2015

That Juror Failed to Disclose Being Facebook Friends With Victim's Sister Did Not Result in Mistrial

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. 

http://www.in.gov/judiciary/opinions/pdf/09241502rp.pdf

Friday, September 11, 2015

Conviction Reversed After Juror Making Racial Comments Found to Have Implicit Bias

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.

http://www.judiciary.state.nj.us/opinions/a0211-12a3356-13.pdf

Monday, August 24, 2015

"Mindless Digital Interaction" Doesn't Result in Mistrial in Murder Trial

Check out the judge's comments about "mindless texting."
Continues to amaze me that jurors either don't listen to the judge's admonitions about using devices during trial or simply don't care.  And why are the trials mostly murder trials?  Perhaps the jurors are enjoying what they perceive is celebrity status.  Perhaps the father's text could result in a reversal on appeal.  Watch for more on this in the future.
Link:
http://www.abajournal.com/news/article/judge_blames_mindless_digital_interaction_for_juror_texts_during_murder_tri/

Monday, August 3, 2015

Judges: Be Aware of a Possible Weak Link in Your Social Media Control Over Jurors

As a result of budget restraints some courts have little or no bailiff support.  Others may have bailiffs who have been poorly-trained or are inexperienced.  We judges need to be vigilant about the support staff interacting with jurors throughout the trial, particularly during deliberations.  There are many cases where bailiffs have given dictionaries or other resources to jurors during trial deliberations, resulting in mistrial.  Bailiffs must be trained to also be vigilant about jurors accessing electronic devices during trial.