Can Lawyers Impeach Jurors During Voir Dire?

Assume these scenarios:

During voir dire counsel for both sides are searching juror's names on social media sites such as Facebook, as well as "Googling" their names, for information about  jurors.  Assume these various scenarios.

One of the attorneys discovers a prospective juror:

1.  Has a felony record (uncertain if rights have been restored) which was not disclosed (and falsely so) during general voir dire by the judge

2.  Has been commenting in general about jury selection and the type of case on his/ her  Facebook page

3. Failed to disclose that he or she had been employed in the industry of which one of the parties is involved and was:

    a.   A clerical employee
    b.   In a technical or research capacity as an employee
    c.   A "whistleblower" to the government for which they were highly compensated

4.  Is a member of an organization which might make them biased, eg.  a member of MADD for a DWI trial

My questions would be:

1.  If , as an attorney, you decide to seek a juror's dismissal, do you move the court out of the hearing of the jury panel?

2.  Do you request permission to, basically, impeach the juror, giving them the opportunity to explain?  Out of the hearing of the other jurors?

3.  As a judge, how would you handle these scenarios?

4.  As a judge, do you warn the jurors that lawyers may be looking at their Facebook pages?  (I wouldn't.)

These are all questions worthy of discussion
 and thought.

Mass. Juror Dismissed for Internet Research During Deliberations

Link to video including judge's comments.

http://www.wcvb.com/news/local/metro/Juror-in-Mattapan-Massacre-trial-discharged-for-misconduct/-/11971628/17719126/-/rcu95t/-/index.html

Farmville Visit by Defendant Results in Mistrial

I heard the story of a defendant in a MN felony trial who, during the course of the trial, was playing "Farmville" on Facebook (I hope I got that right) with 2 jurors.  They discovered it, told their fellow jurors the next morning at court, the bailiff told the judge, and a mistrial was declared.  The defendant claimed he didn't know the contestants on Farmville were jurors, but a search of records determined that he had searched their names.  The defendant was charged with Juror Tampering and eventually pled guilty to the original charge.  The jurors were, perhaps, not "behaving badly" other than reporting it to the whole jury and eliminating any chance of avoiding a mistrial (if there were 2 alternates).  I hesitate to think of the outcome had they failed to report it.

Don't Think Teens (and Jurors) Can Be Addicted to Their Smart Phones?

Just read this story and consider that we quite often having 18-20 year olds on our jury panels during voir dire:

Link    http://www.tcpalm.com/news/2012/nov/27/jensen-beach-teen-charged-after-threatening-to/

"Guilty As Tweeted": Australian Lawyer's Scholarly Article on Jurors and Social Media

Link is to abstract, with additional link to the entire article:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2176634&download=yes

The article is lengthy and detailed, but one suggestion from the author is that the court confiscate phones during the trial day.  I oppose such action because (1) court administrators likely won't want responsibility for electronic devices, fearing claims someone's phone was stolen or tampered with; (2) it will have the adverse effect of encouraging juror inquiry on social media and the Internet when not in trial.

Texas Bar Journal "The Advocate" Focuses on Trials and Social Media

Link:  http://www.litigationsection.com/downloads/Advocate_V60_Fall2012.pdf

Deliberating Juror Using Pseudonym May Be Charged With Felony for Comments on Newspaper Website

A deliberating juror who may have made comments on a newspaper website under a pseudonym (BePrepared) may face felony charges.
Link:  http://stlouis.cbslocal.com/2012/10/31/judge-orders-kan-newspaper-to-reveal-name-of-commenter/

In another case a Facebooking juror was NOT requested by the attorneys to be excused where her comments were rather innocuous.  But since she was withdrawn from the jury room for questioning by the judge, it is likely many of the jurors will go on Facebook that evening to see what she said.

Link  http://www.wacotrib.com/news/176706161.html

Misbehaving Prospective Juror Faces Jail

A prospective juror conducted Internet research and discussed the case with other jurors despite the judge's written admonitions, was excused and now faces jail.. It is a death penalty case in Florida.

Link  http://www.tampabay.com/news/courts/criminal/hillsborough-judge-vows-to-send-prospective-juror-to-jail/1255802

National Center For State Courts Releases Study of Jury Use of New Media

The authors of the report acknowledge that it was a small sample and that those jurors surveyed may not have been willing to disclose violations of the judges' admonitions regarding social media and the Internet.  Still, they drew these interesting conclusions (at p. 7):

1.  Few jurors reported committing misconduct of any kind-- with the Internet, friends or families

2.  A substantial portion of the jurors could not recall that the judge had given an admonishment about new media use or incorrectly believed such searches were permissible

3.  A sizable proportion of actual and prospective jurors indicated a desire to use the Internet to obtain information relevant to the trial

4.  A significant proportion indicated they would be unable to refrain from Internet use for the duration of the trial.

The authors recommend further study of these issues.

LINK   http://www.ncsc-jurystudies.org/What-We-Do/~/media/Microsites/Files/CJS/New%20Media%20Study/NCSC-Harvard-005-Juror-and-Jury-Use-of-New-Media-Final.ashx

Prosecutors Move Court to Order Defendant's Supporters to Close Website

One of my greatest worries in a criminal case is that a juror will disregard my admonitions not to conduct Internet research and will find a website constructed by the Defendant or their supporters.  Here is a link to a motion filed by prosecutors for an order requiring the Defendant's website (Justice for Reeco) to be closed.  The Defendant was charged with auto theft but his website primarily concerns his lawsuit against the police for injuries suffered as a passenger in a fiery collision at the end of a high speed chase in Maryland.  Lots of evidence posted on the website.

http://www.justiceforreeco.com/wp-content/uploads/2012/10/Richardson-Motion-to-Compel-Website-Closing.pdf

Kentucky Case Remanded for Trial Court Inquiry Into Facebook Relationship Between Jurors and Mother of Victim

Here is link to Kentucky Supreme Court decision remanding murder case for trial court inquiry into extent of relationship between 2 jurors and mother of victim as Facebook "friends."  The jurors stated in voir dire that they were not acquainted with the victim or her family, and did not use Facebook.

http://opinions.kycourts.net/sc/2011-SC-000318-MR.pdf

Mistrial After Lawyer Posts Underwear Photo on Facebook

A mistrial in a murder trial has resulted after defense counsel posted a photo of the Defendant's underwear on Facebook.  Counsel apparently felt the Defendant's family acted foolishly after providing  leopardskin-print undies for trial attire.  Posting for all to see, including jurors, resulted in a mistrial:

Link:  http://www.webpronews.com/lawyer-posts-photo-of-clients-underwear-on-facebook-quickly-leads-to-mistrial-2012-09

When Jurors Lie During Voir Dire: The High Standard to Overturn a Verdict

Here is a link to an article in Forbes from May 2012 which just so happens to have the same title as this blog and discusses the difficulty of overturning a verdict when it is discovered post-verdict that a juror had lied substantially during voir dire.

http://www.forbes.com/sites/insider/2012/05/02/jurors-behaving-badly/

Deliberating Juror Vacations in Cancun: Faces the Music on Return

Similar to the posting on May 25 and July 13 (juror goes on business trip), a juror during deliberations went on vacation, saying she left a note for other jurors with her vote.  My question: have these people lost their minds?

Link:  http://www.jsonline.com/news/crime/runaway-juror-ditches-service-for-cancun-0i6irg1-166983106.html

Mistrial in Murder Trial Where Canadian Juror Posts on an Anti-Defendant website

In this week of the Olympics we find that juror misconduct involving social media, just like the Olympic sports,  is not confined to the U.S.  The Canadian murder trial of Fred Prosser has resulted in a mistrial over a juror posting on an anti-Prosser Facebook site.
LINK:  http://www.cbc.ca/news/canada/new-brunswick/story/2012/07/18/nb-prosser-trial-929.html

Ohio Supreme Court Finds Trial Judge Acted With Haste in Ruling on Juror Misconduct During Deliberations and Ordering Mistrial

In a case with multiple defendants and a tortured route several times to the appellate courts, the Ohio Supreme Court ruled that the trial judge acted hastily in ordering a mistrial after briefly questioning a juror who brought to jury deliberations Internet research on the terms "perverse" and "involuntary manslaughter.  Convictions from a subsequent trial were reversed as double jeopardy was found.

LINK     "http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-3236.pdf

Retrial Results From Juror Bringing Extrinsic Evidence Into Deliberations

In a Washington wrongful death case, a juror told fellow jurors that families of soldiers killed in Afghanistan get $100,000 so no one else should get more.  The trial judge determined that this comment did not affect the verdict.  The appellate court reversed, discussing the objective standard which the trial judge should have used, ie. could the comments have affected the verdict.

http://www.courts.wa.gov/opinions/pdf/66743-2.unp.docx.pdf

Followup on May 25 post: Absentee Sitting Juror Fined

The federal juror (medical device salesman) who left mid-trial on a business trip to meet with a dissatisfied client in Iowa has been sanctioned and fined by a federal judge:


http://news.bostonherald.com/news/national/midwest/view/20120711juror_fined_1000_for_skipping_out_on_his_duty_in_middle_of_trial/srvc=home&position=recent

To Sequester or Not to Sequester, That is the Question

I saw an article on the CNN website (link below) discussing that the presiding judge in the Sandusky trial in PA had declinedt to sequester the jury during the entire trial.  Given (over the past 2 years) the great number of mistrials and re-trials arising from juror misconduct involving the Internet and social media, it raises the question whether sequestering the jury for the entire trial is worth the financial expense (enormous) and what the impact on the personal lives of the jurors will be.  Will it discourage even more jurors from showing up for jury duty when summoned?  Will it increase the number seeking deferment or exclusion from jury duty?  Will it provide even more opportunity for jurors to discuss the case before deliberations?  Should they be allowed to do so?
Apparently the estimated cost of sequestering the jury in the trial of Michael Jackson's doctor would have been over a half million dollars, certainly prohibitive given the financial disaster that is California's budget.  It will be interesting to see what happens in the trial in PA.

http://www.cnn.com/2012/06/06/justice/sandusky-jury-not-sequestered/index.html

Juror Lies on Questionaire and During Voir Dire Results in New Trial

Misconduct not involving social media but rather falsehoods during jury selection resulted in retrial in a personal injury case.  The juror lied by failing to disclose he was a party in a pending lawsuit which was shortly thereafter to go to trial in the same court.

http://www.3dca.flcourts.org/Opinions/3D10-2495.pdf

Absentee Juror In Federal Trial Found In Contempt, Plus Good Commentary on Civic Duty

The order has a lengthy discussion of the facts which the court found insufficient to warrant absence of a seated juror, ie a business trip claimed necessary to avoid losing an important client.  Also a good commentary on the responsibility of employers, the history of jury service, and the civic duty of all citizens.

http://www.ncsc.org/Topics/Jury/Jury-Selection-Trial-and-Deliberations/~/media/Files/PDF/Jury/Holderman%20Opinion.ashx

Florida Jurors Banned From Facebooking During Trial

The Florida Supreme Court is following the national trend toward more formalized and specific preliminary jury instructions that jurors may not discuss the case on Facebook, "tweet" or blog about it during trial:

http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1336995496187&Fla_Jurors_Banned_From_Blogging_About_Criminal_Cases&slreturn=1

Now I Have Seen Misconduct First-hand! and Facebooking Jurors Do NOT Cause New Trial

I can write about this as the trial is over and there can be no appeal.  During jury selection this week in the courtroom a prospective juror's smartphone buzzed, so he took it out and scrolled to read the text.  We were nearly done with jury selection (so he probably concluded as he had not be chosen as yet it was OK to read the text) so I did not embarrass him in front of 40 other people.  This was despite the poster (at right margin) being in the jury room where he waited 2 full days and my lengthy admonitions as discussed elsewhere in this blog.

Here is another appellate case regarding jurors on Facebook, fitting as today is the first day of trading Facebook shares from the IPO.  Note that a new trial was NOT ordered, that is, "no harm, no foul:"

http://www.universalhub.com/2012/commonwealth-vs-clare-werner

Juror's Use of Internet Adversely Affects Defendant's 6th Amendment Rights

An excellent article may be found in the University of Illinois Law Review, link as follows:

http://illinoislawreview.org/wp-content/ilr-content/articles/2012/2/Zora.pdf

The author, law student Marcy Zora, summarizes well the problems of jurors' use of social media and the Internet, and the efforts judges have made to stem the growing tide of mistrials due to this problem.  A defendant's 6th amendment rights are violated when jurors rely on information received outside of the courtroom, including information from sources that are not accurate.  She emphasizes that jury instructions admonishing jurors not to conduct Internet research or discuss the case in social media should be specific as to Internet use (Facebook, Google, MySpace, etc) and be given frequently throughout the trial.  I agree with her suggestions.  However, I disagree with her conclusion that the threats of punishment such as contempt, fines, and (in California: see my 1-3-12 post) misdemeanor charges, will effectively prevent jurors from violating the judge's admonitions.  Social scientists suggest that jurors may seek the "forbidden fruit" simply because the judge says they may not.  Anti-government types may simply see this as a challenge to their privacy rights by an oppressive government.

Juror Charged with DWI While Serving on Jury

Kind of hard to serve on a jury when you've been charged with DWI while trial is in progress:

http://www.wivb.com/dpp/news/crime/juror-from-corasanti-case-facing-dwi

Law Review article on Jurors Misconduct in the Digital Age

Here is a link to an abstract of  "Google, Gadgets and Guilt: Juror Misconduct in the Digital Age" by Thaddeus Hoffmeister, 83 U. Colo. L. Rev. 409 (Winter 2012).

http://works.bepress.com/thaddeus_hoffmeister/7/

Another Issue for Judges In Voir Dire: "Have you viewed the Attorney's website?"

Now that parties to lawsuits or criminal cases are establishing case-specific websites, should the judge ask jurors if they have viewed any websites established by any of the parties or attorneys in the case?

Check out this link:
http://www.gzlegalcase.com

My answer: a definite yes, with a specific instruction that the jurors shall NOT look for it through Google or any other search engine.  Though I wonder if this simply encourages them to do so anyway.  Perhaps the attorneys could be convinced to shutdown the website prior to trial.

Two More Cases Where Wikipedia Is Source Sought by Disobedient Jurors, Causing Vacated Convictions; Foreperson Held in Contempt

An alert bailiff discovered in a jury deliberation room printed information from Wikipedia obtained by the jury foreman and shared with fellow jurors.  A new trial has been granted to the convicted defendant.
Here is the link:

http://hosted2.ap.org/CARIE/7f780b0f92634e54be4b48f9179deaa4/Article_2012-04-21-Juror%20Misconduct-Mistrial/id-dafa76e0eeb9401092971dc302955068

The judge noted that the definitions obtained by the foreman were not accurate, that the foreman exhibited no malice, and was simply trying to be helpful.  This is consistent with other juror misconduct cases where the miscreants claim to just want to do a good job and had not been provided the necessary information by the judges and lawyers.

The history of Wikipedia as, in essence, a dictionary, and an unreliable source for legal terms is recounted in a federal appeals decision (46 pages) with convictions vacated:

http://pacer.ca4.uscourts.gov/opinion.pdf/104831.P.pdf

Finally, a foreperson who conducted independent research in violation of the judge's admonitions was found in contempt and fined $500.  Link:  http://www.ediscoverylawalert.com/uploads/file/In-the-Matter-of-Daniel-M_-Kaminsky.pdf

Photographer's Goof Results in Mistrial

Not misconduct of a juror, but a photographer's error in publishing a juror's photo results in a mistrial:

http://www.huffingtonpost.com/2012/04/11/reporter-photo-austin-tabor-case-mistrial-declared-ann-marie-bush_n_1418723.html

AND another case of juror's photos, this time on a Facebook page:

http://www.mlive.com/news/muskegon/index.ssf/2012/04/baby_kate_trial_day_began_with.html

Another reason to ban cameras in the courtroom!

Colorado Juror "Facebooking" During Trial is Discharged

Here we go again!  It's nearly a weekly (certainly a biweekly) event that a juror somewhere is discharged for violating the judge's admonition against using social media to discuss the case.  Link below is to a child sex abuse case in Colorado::

Link:  http://www.krdo.com/news/30785653/detail.html?hpt=ju_bn6

Privacy Rights of Jurors Who Use Social Media During Trial?

Linked below is an interesting take on the (possible) privacy rights of jurors who use social media to comment on a trial during their service.

http://www.businessweek.com/articles/2012-03-29/hey-judges-facebook-isnt-the-devil-its-the-new-gossip

See also appellate case involving requests by defendants to see Facebook postings of jury foreperson:

http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1332691957182&Facebooking_Juror_Sets_Fair_Trial_Rights_Against_Privacy_Concerns&slreturn=1

Duke Law Review Article Includes Survey of 140 Jurors

Here is a link to article in Duke Law and Technology Review on jurors and social media.  The authors suggest that judges give specific instructions prohibiting use of social media discussing the trial or doing research on the Internet, and that those instructions be given early during a jury trial and often.  There is an interesting survey of 140 jurors regarding the temptation to use social media.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2020499

Click One-Click-Download to view the entire article.

Juror's Failure to Disclose a History of Domestic violence Results in Mistrial During Deliberations

http://www.kristv.com/news/juror-causes-mistrial-in-mission-911-murder-case/

Criminal Investigation of Juror Misconduct During Deliberations Requested by North Carolina Judge

Following a conviction in a first degree murder retrial, the presiding judge in Raleigh, NC, has ordered an investigation of juror misconduct during deliberations:

http://www.newsobserver.com/2012/03/07/1910896/jury-in-young-retrial-is-now-under.html

ZZZZzzzz: Sleeping Jurors, Awake!

Minnesota has at least 2 appellate decisions on sleeping jurors. And, yes, I have occasionally observed jurors nodding off during trial. (A colleague observed counsel napping during a long trial.)
The MN cases:  State v. Yant, 376 NW2d 487, 491 (Minn. App. 1985) and State v. James, 638 NW2d 205, (Minn. App. 2002)
Here is a link to a law review article:  http://lawreview.jmls.edu/articles/show/17

Jury Trials and Social Media Topic of Keynote Address at Corporate Counsel Forum

LINK:  http://www.cvent.com/events/corporate-counsel-s-social-media-forum-2012/agenda-a3b79c774b5c4e91989a93478313645d.aspx

PA Supreme Court Considering New Rules for Use of Electronic Devices in Courtroom; Prohibit Tweeting From Courtroom

The amended rules prohibit "tweeting" by members of the press or others in the courtroom (at page 25):

http://www.pacourts.us/NR/rdonlyres/25029F7C-956E-4EA5-9FB1-36CFADE128C6/0/rules626627etalcrim.pdf

Jury Consultant on The District Court Show

Susan Macpherson discussed jury behavior on The District Court Show.
See link at right.

Vermont Supreme Court Orders New Trial Due to Juror Researching Somali Culture on Internet

Once again a state supreme court has granted a new trial where a juror had conducted research on the facts of the case, here Somali culture, and shared it with fellow jurors, and the Defendant was convicted:

http://www.burlingtonfreepress.com/article/20120127/NEWS02/120127025/Supreme-Court-orders-new-trial-man-convicted-sexual-assault-child?odyssey=nav|head

Missing Juror Ordered to Carry Sign Outside Courthouse: "I Failed to Appear for Jury Duty"

A prospective juror who failed to return for jury selection after a lunch break was given a interesting consequence by the presiding judge:

http://posttrib.suntimes.com/news/lake/10187894-418/potential-juror-who-left-before-trial-to-be-punished.html

Why Do Tech-Obsessed Jurors Disobey Judge's Instructions?

A great article in the February 2012 issue of the Rotarian magazine is entitled "Tech savants: Five things you need to know about the gadget generation," authored by Patty Lamberti, a professor at Loyola University Chicago. (LINK is below)  The five things are:

1.  They are blind to technology etiquette.

2. Multitasking is hurting their brains.

3. They dislike conversing face to face.

4. Their only news comes from Facebook.

5.  Life without technology leaves them depressed and anxious.

Numbers one and five as she expands on them in the article explains a lot about misconduct by younger jurors.

http://www.rotary.org/en/MediaAndNews/TheRotarian/Pages/Education1202.aspx

Juror "Friends" Defendant on Facebook and is Dismissed

A Florida man was dismissed from a jury in a personal injury trial for "friending" an attractive defendant on Facebook.  He thought going on Facebook to "friend" a party to the case wasn't a "big deal" despite the judge's instructions, apparently wasn't too upset about nearly going to jail, being only happy not to have to serve.
http://www.foxnews.com/us/2011/12/31/florida-juror-dismissed-for-friending-defendant-on-facebook/

Juror Misconduct During Deliberations Exacerbated by Judge Mishandling It Resulting In New Trial

In a federal criminal trial of an attorney charged with wire fraud and securities fraud, during deliberations a juror threatened to cut off the finger of another juror, and later another juror tried to barter their vote.  Over counsel's objections, the trial judge met with one juror privately and without counsel present, encouraging them to work with the other jurors toward a verdict.  The resulting conviction has been overturned and the defendant granted a new trial:

http://www.bloomberg.com/news/2012-01-09/ex-refco-lawyer-collins-s-conviction-reversed-by-court-due-to-jury-issue.html

Moral of this story:  Be careful when dealing with juror misconduct.  Try to avoid making matters worse!

Judges Need to Anticipate a Prospective Juror Wanting to Take Notes on Tablet or Laptop

There is the old phrase "to be forewarned is to be forearmed." One of these days a juror is going to ask to use a tablet or laptop computer to take notes during trial. For you, the judge, to "just say no" is not going to be enough.  The juror, one of the TRIERS OF FACT, will wonder why the attorneys, judge and court reporter can use a computer but they cannot.  Some schools no longer teach cursive writing.  Most teens can "text" faster than they can hand-write.

It's important to consider this possibility before it happens in court.

New California Law Effective January 1, 2012, Makes Jurors Misconduct a Misdemeanor

This is a followup to my posting dated 9-27-11 which can be found among "older posts" below.  Effective 1-1-12 California's statutory and mandatory preliminary jury instructions include admonitions against use of social media while serving as a juror, violations of which are punishable as misdemeanors, ie. J-A-I-L. Here is a recent article; click the link and then search Facebook jurors on the site:

LINK