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.
The MN Court of Appeals upheld the trial judge's denial of a Schwartz (post-trial juror misconduct)hearing after it came to light that a juror, after the trial, apparently being enamored with the attractive victim of the crime, sent the victim a text message that he was sending her "virtual hugs". The juror allegedly got the phone number of the victim off a piece of evidence. In a word: creepy.
Generally it is not unethical for lawyers to search for public information on jurors through Linked-In, but searching for private information or attempting to connect with a juror is unethical. Lawyers should check their state's rules in this area as states differ on their rules.
This time it's in Iowa. A murder conviction was reversed by the appellate court due to prejudice to the defendant from contacts on Facebook some of the jurors had both before and during deliberations. Pre-deliberations one juror discovered that one of the defendant's relatives was her Facebook friend. During deliberations a juror shared that on Facebook there were posts about rumors that there would be a riot or violence if the defendant was not found guilty of something.
Juror in murder trial brought to deliberations Facebook information regarding the defendant's past history and information on an online eulogy for the victim of the murder. Juror also "Googled" gang information regarding gang codes and activity. Defendant was convicted. Trial judge denied an evidentiary hearing on juror misconduct. Federal court has granted habeus corpus. The state must grant a new trial within 90 days of the order or when appellate review becomes final, or defendant must be released.
The link below is to federal 6th Circuit decision reversing the trial court which failed to itself or permit counsel to inquire of jurors as to a color claim of misconduct affecting the verdict. Here it was a juror's extraneous communications with a prosecutor (who was not involved in the case).This is but one of several cases in the past few years cautioning trial judges not to ignore claims of alleged juror misconduct but to inquire further through counsel. (a Remmer hearing) There should not be a race to finality but rather a thoughtful systematic inquiry into what happened and how it may have affected the verdict.
In June a California murder trial was about to begin after FOUR weeks of jury selection and the questioning of hundreds of prospective jurors when juror misconduct was found. It is unclear from the reports but it appears a juror chosen to hear the case was conducting Internet research in violation of the court's order. This is a misdemeanor in California. The trial had to start all over again as a result and the juror (behaving badly) is facing misdemeanor charges.
Judges instruct jurors that during their deliberations they cannot consider the possible sentence in determining guilt. The jurors in this case considered the comments of a juror about possible sentence, including release and credit for jail time already served. The murder conviction was reversed and a new trial ordered.
During deliberations the Ohio jury had in its possession 71 oxycodone pills which were evidence admitted at trial. Sometime during deliberations someone, perhaps when the room was empty, took advantage and stole them.
A recently-released book by Stulberg and Magness entitled Peak Performance has very interesting information about the science of thinking, performing tasks, burnout, and rest which I think is applicable to jury management. It has made me think about the significant downside to having jurors sit in a courtroom for several days, if not weeks, then only to spend hours in deliberations, cooped up in a windowless room, away from family and work, with no exercise and crummy meals, and expecting them to make rational decisions. The book is worthy of a look for trial judges.
In the Arizona case linked below the trial court allowed a court laptop in the deliberation room for the jury to review certain evidence admitted at trial. Unfortunately there was a "witness interviews" disk also in the laptop disk drive, evidence not admitted at trial. The jurors saw the disk but did not view it and contacted the bailiff immediately. No mistrial was ordered by the trial court and this decision was affirmed. No harm, no foul. Still a very bad idea. I am only familiar with MN procedure where this would not have been allowed.
A defendant was indicted for wire fraud, however for 2.5 years prior to that the civil litigation against him was the subject of hundreds of comments in a blog, some of which were inflammatory. Immediately after the verdict of guilty the government lawyers informed defense counsel of blog-post comments from the night before the verdict authored by an anonymous person claiming to have been a juror (#8) in the trial. See page 10 of the opinion linked below for the juror's posting.
The court interviewed the juror (#8) and she denied seeing the blog mentioned above or discussing it with other jurors.. The court declined to interview any other jurors. This was followed by still other posts from alleged jurors about #8's comments. The trial court declined motions for reconsideration and new trial. The appeal followed.
The Court of Appeals has remanded the case for an evidentiary hearing. The moral here: TRIAL JUDGES MUST THOROUGHLY INQUIRE INTO ALLEGED MISCONDUCT BY JURORS DURING DELIBERATIONS.
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.