Should Jurors Be Allowed to Take Notes on an Electronic Device?

 A post on January 6, 2012, here discussed the need for the judge to anticipate that a juror may want to use a laptop or iPad to take notes during trial.  Technology has advanced significantly since that time so this issue needs revisiting.  There are several problems with this:

1.  The judge cannot tell if the juror is conducting research (unless Internet access is blocked) or communicating with others or is recording the proceedings (this could raise issues if the official record of the court reporter is contested).

2.  The distraction to others from the device keyboard.  Perhaps this can be ameliorated with a quiet keyboard or a program converting written notes using a stylus that converts it to printed words.

3.  Other jurors may observe greater note-taking as some indication that important points of evidence are being presented, while lack of note-taking means the opposite.

4.  Jurors' notepads are generally secured in the courtroom by staff when trial is not in session.  The juror may not want their device kept at the court, subjecting it to theft or hacking of notes and their personal files. Perhaps each juror could be provide an iPad which they access with their chosen password.

5.  The device could be ordered confiscated for forensic examination if there is an issue of juror misconduct such as research.  Strongly suggest this only occurs after a hearing where the accused juror has counsel as there are serious issues of privacy.

I'll add others as they occur to me.  Some things in trials are best handled the old-fashioned way.

Florida Juror Hearing Death Penalty Phase Interviewed by Judge About Watching Documentary About First Trial

 November 21, 2022:  In Broward County, Florida, a juror hearing the death penalty phase of the murder trial of Peter Avsenew is accused of watching a documentary about the first trial in 2018.  That trial resulted in a conviction and sentence of death.  The state Supreme Court reversed the conviction and ordered a new trial, which also ended in a conviction in June 2022 and a death sentence.  The documentary, "Evil Lives Here," had an episode about the case and  referred to an inflammatory letter the defendant wrote to the judge and that he gave the victims' families the middle finger in the courtroom.  This information was shared by 2 jurors with the panel in a WhatsApp chat.  This information was revealed by a concerned juror.  Defense counsel want all jurors interviewed.  The next hearing is December 7.

A video can be viewed on CBS Miami in which the judge interviews the juror (who is off-camera) about his misconduct.  My concern is that, as stated in a 11-15-22 posting, this juror apparently had no counsel, was not given a Miranda warning, and has confessed in open court to contempt of court for which he could be fined or jailed, or could be charged with a crime.

More as the case progresses.

Judge Has Wide Discretion in Excusing Jurors from Serving

 As a judge I heard many reasons why jurors did not want to serve or were worried about their ability to be fair and unbiased.  A common question jurors are asked during jury selection (voir dire) is whether there are any events upcoming during the anticipated trial duration that would prevent them from serving or affect their concentration on the evidence.  These often include:

Lack of daycare

Losing income because employer will not pay them during jury duty

A serious medical treatment or surgery for themselves or family member

Final exams at school or college

A long-anticipated trip out of state 

Other reasons for being excused are personal court experiences which are similar, as a party or witness; expert knowledge such as will be presented at trial; acquaintanceship with judge, attorney, witness, court staff, or another juror.

A juror was excused in September 2022 in the R. Kelly child sex abuse trial after having a panic attack during closing arguments and being unable to continue.  In the recent trial in New York against the Trump Organization, a prospective juror told the judge that the former President makes him so ill and that he has such negative feelings about him that he cannot be a fair and unbiased juror.  In the same trial another juror said "there is no chance in hell" she could have been impartial.  

It is common in sexual assault cases that prospective jurors are overcome with emotion when questioning dredges up long "stuffed" and unexpressed memories about their own victimization floats back in their consciousness.  Only rarely do the prosecution and defense disagree on excusing a juror in that situation.

Judges have wide discretion in excusing jurors from service.  As I indicated in a prior post, judges and attorneys should be cautious about "brow beating" a juror into stating that despite their feelings they can be fair and impartial.  

Not for the First Time, a Juror Speaks to His Priest About Case and is Excused from Deliberations

 In the Kristin Smart murder trial of Ruben Flores in Monterey County, CA, a juror went to confession before her priest and asked for spiritual guidance despite having been warned by the judge not to speak to spiritual advisers and therapists.  The judge stated that "sometimes the appearance of impropriety is just as bad as actual impropriety" and out of an "abundance of caution" the juror was excused.  The jurors had been deliberating for 3 days.  The juror was excused 10-13-22, an alternate juror sworn in, and the jury was instructed to begin deliberations anew.  The jury found Ruben Flores not guilty of helping his son bury and hide the victim's body in 1996.

See prior post: 8-8-14.

Presiding Judge Should Act Cautiously When Considering Contempt for Juror Misconduct

 A number of the posts over the past 11 years have been about judges finding a juror in contempt of court and either fining them or sending them to jail.  Having found a juror in contempt near the end of my career, I learned that the differences between civil contempt of court and CRIMINAL contempt of court have long been the subject of considerable disagreement between legal scholars.  What I have concluded from a fellow judge who heard the appeal of my contempt finding is as follows:

1.  Do not handle the contempt proceedings yourself, particularly if you are a witness to any improper, and possibly criminal, conduct

2.  Refer the matter to law enforcement for investigation and reporting to the prosecuting attorney for review and possible charging

3.  The juror accused of misconduct has all the constitutional protections of any criminal defendant: presumption of innocence, appointed counsel if indigent, jury trial, etc.

4.  Do not question the juror without (1) a Miranda warning; (2) juror has counsel; (3) consider appointing a special prosecutor to question the juror. Alternative to all of this is #2 above.

In summary, if you handle the contempt proceedings yourself you are basically acting as prosecutor, jury and judge.  Avoid substantial stress by following #1 above.  You may also avoid an appeal which reverses your decisions. And good luck!

Virginia Double Murder Conviction Vacated Due to Juror Experimenting with Rifle Use for Suicide

 On November 9, 2022, a double murder conviction (March 2022)  in Fairfax County, Virginia, was vacated by the trial court due to a juror having experimented with use of a rifle for suicide.  The defense had presented evidence of possible suicide with a rifle.  A juror went home and used a rifle to see if that was physically possible.  Because of the weight and length of the .22 ca rifle the juror determined that suicide in that manner was not possible.  She shared her experiment with her fellow jurors during deliberations.  Prosecutors have indicated they will retry the case.  Once again, one juror violating the judge's admonitions has caused a waste of public and private resources in the tens if not hundreds of thousands of dollars.