Boston College Law Review Addresses Jury Experimentation, the Right to Fair Trial and Traditional "Black Box" Nature of Jury Deliberations

 In the most recent issue of the National Center for State Courts Jur-E Bulletin there is a summary of a Boston College Law Review article, "Breaking the Black Box: When Jury Experimentation Becomes Jury Misconduct."  (Vol.65:2863).  Author Jessica Parillo discusses existing case law on juror experimentation starting at page 2880  Fundamentally, jurors may not consider extrinsic evidence during the trial or deliberations (such as Internet research, visits to crime scenes, experimenting with material similar to the physical evidence, etc.).  The NCSC summary states that the author opposes revising the "no impeachment" rules as to jury deliberations and suggests instead preventative measures by the attorneys and judge to insure that misconduct does not occur in the form of experimentation.  Read the article and decide for yourself.  I agree with the author:  eliminating the sanctity of jury deliberations is a very slippery slope.

Check out my prior posts:

10-4-2024    Juror "Googled" floor plan similar to one involved in the case

11-14-22.     Juror conducts experiment with rifle.  Conviction vacated.

11-1-11        Reference to article on jury deliberation reform of the "Black Box"

I recall another case where jurors in deliberations used "Hot Wheels-type" model cars to reconstruction the collision involved in the case.

Two Jurors in Louisiana Criminal Trial Jailed for Contempt

 In August 2024 in St. Mary's Parish, Louisiana, a juror in the sexual abuse trial failed to appear for jury duty for the second day of trial.  After the second day of trial another juror was found to have failed to disclose during jury selection that she was acquainted with the victim's family.  The first juror was sentenced to 5 days in jail after a contempt hearing; the second juror to 15 days in jail.  A mistrial was declared and the case must be re-tried, to the financial and emotional detriment of all involved. 

Webinar Addresses Role Low Juror Compensation Plays in Non-Diverse Juries

 The National Center for State Courts in its webinar showed the film "Judging Juries" (2023) which addressed the widespread absence of racially-diverse juries in criminal cases as a result of (1) prosecutors using preemptory challenges to strike jurors of color based allegedly on non-race-based reasons, such as a bad experience with a police officer or family members incarcerated;  (2) low juror pay creating severe financial hardship for most persons of color serving on a jury, therefore many do not appear in response to the jury summons or ask to be excused.   It also touched on the fact that more than half of the states exclude felons from jury duty unless off probation or on parole.  

Discussion by a panel of court experts concerned surveys of how low juror pay affects diversity;  jurisdictions which have begun paying jurors of low income as much as $100 a day for jury service;  Arizona created a fund to further compensate jurors who serve on lengthy trials.  Some of the programs are funded by private foundations, while others are legislatively-funded but have a trial period after which reauthorization must be sought.

I imagine the NCSC will have the panel discussion available for view on its website, however the film is copyrighted and won't be viewable.

Webinar on Jury Service and Financial Fairness

 On October 30, 2024, 3:00-4:15  pm ET, the National Center for State Courts is hosting a webinar on jury service and financial compensation.  This has long been a concern of mine about which I have frequently posted, most recently on October 3.  It includes a sneak preview of the film JUDGING JURIES which focuses on the financial hardship of jury service to lower-income citizens and the effect on jury diversity.  The film will be followed by a panel of court administrators and community leaders discussing options for increasing juror compensation.

Go to:  https://www.ncsc.org 

and scroll down to the webinars box

Must Jurors Be Truthful During Jury Selection?

 The obvious answer is "of course!"  But this question shows up frequently in word searches in Google.  The entire British and American judicial system has been based for centuries on the paramount importance of TRUTH.  Truth means facts, such as "the semaphore was red when the driver sped through the intersection" or " the freezing point of water is 32 F."  So what are possible consequences of extensive and widely-reported WHOPPERS in the media about political campaigns' outright lies about their opponents?  Having no scientific surveys to support my opinion, I still opine that nothing good can come of this.  One major candidate has publicly said that telling stories that are untrue is acceptable if it serves his purposes.  The message to the average citizen is that lying is acceptable if it serves my purposes.  So if I want to lie when questioned during jury selection because I do not wish to serve because it is a financial burden on my family, then that's an acceptable reason. Really?  It's not!

The past few years a phrase that has become common: "that's my truth."  Rest assured that if you are being questioned during jury selection and you fail to answer truthfully about any of the following, and more, you could be charged with PERJURY, a felony, and be imprisoned, plus fined thousands of dollars if this causes a mistrial:  Do you,

know any of the witnesses who may be called to testify (list is read to the jury panel)

know anything about the facts of this case

know any of the parties or lawyers

have a criminal record at the felony or gross misdemeanor level

know anyone close to you, or have you, been the victim of a crime or sexual assault

have a conviction for DWI (if that is the charge)

have any important events coming up that could be interrupted by service (school exams, medical treatment, a trip planed for a long time, etc.)

have training in medicine (if at issue) or law enforcement training (criminal case)

If you doubt that falsely answering questions during jury selection could lead to serious consequences, here are past posts to take a look at:

2-2-18.    1-22-16.   10-30-15.    5-4-15.   4-28-14.   8-19-13.   8-29-12.   6-8-12.   3-15-12

"Facebooking" Australian Juror Fined $15,000 After Misconduct Leads to Stalking of Victim

 An Australian juror in a rape trial revealed details of the case (including the victim's name and details about deliberations) in which he was sitting to a Facebook Messenger group.  Worse yet, and not anticipated by the miscreant, a member of the Facebook group (5 men) contacted the victim and said that the evidence against the defendant was weak.  The Facebook member accused the victim of making false allegations, that there was no forensic evidence and was wasting taxpayers money. The victim contacted police.  This person ultimately plead guilty to stalking and was fined $8000.  The bad-behaving juror was fined almost $15,000 (U.S. equivalent).  As quoted by ABC News, the judge said the juror "interfered with the administration of justice' and "breached the confidentiality of the jury room."  Pretty mild. How about his misconduct led to the re-victimization of the victim?

Juror in Scottish Trial Fined For Googling Floor Plan of Crime Scene

 The BBC reports that a juror in an Edinburgh rape trial "Googled" a floor plan similar to the crime scene and was found in contempt of court.  She also research the definition of the "not proven" verdict, one of three possible verdicts in criminal trials in Scotland.  The juror violated the court's instructions at the beginning of the trial that the jury was only to consider evidence heard in the courtroom.  The juror, a college lecturer, was fined 400 pounds.

Recent Report Surveying Jurors' Experiences Not Surprising

 Over the years I have frequently posted about frustrations that jurors have with their experience with the judicial system, while generally appreciating the opportunity to serve.  The Truth in Justice Project recently released a report based on multiple focus groups of jurors with diverse backgrounds and affiliations.  Not surprisingly they complained of:

inefficiencies: long waits between times in the courtroom (hear that lawyers?)

financial burden of long trials: I have harped on this for years; at one time Minnesota decreased the daily juror compensation.  Jury duty should not send citizens to the brink of bankruptcy.

disrespect for their time commitment: lawyers and judges need to be aware that they should conduct their lengthy conferences and settlement negotiations other than when jurors are cooling their heels in an often-stuffy jury room.

confusion over legal concepts: plain language is need in jury instructions and lawyers should try to agree on explanations to be given for complex legal terminology

Go to www.astcweb.org

Mystery Woman Tries to Bribe Sitting Juror With $120K in Bag

 On June 2 a woman drove up to a sitting juror's home in suburban Minneapolis and dropped off a bag of $120,000 in cash and left her a message, "there will be another bag for her if she votes to acquit."  The juror was not home at the time and reported the incident to the police.  The federal judge presiding over the trial discharged the juror, rightfully so.  She would have been afraid of the consequences of her vote either way.   The trial involves 7 defendants charged with stealing $41 million from government programs intended to feed children.  Anyone in her neighborhood got video?

Jurors May Consider Their Own Life Experiences in Analyzing Evidence But Not Share Specialized Knowledge

 Jurors are not robots (or AI) therefore they are not expected to disregard all of their life experiences in analyzing the evidence.  To do so is impossible.  However, if a juror has specialized knowledge or experiences, they may not share them with their fellow jurors during deliberations.  For example, in a medical malpractice case involving an alleged faulty knee operation, a juror cannot share "in my knee surgery the doctor didn't do ...like Dr. Defendant."  Or a plumber on a jury could not share his expertise if the negligence at issue is related to his field of expertise.  (I cannot imagine why the plumber would not be excused from service). A juror that does so commits misconduct.

Check out: To Be "Impartial" Must a Juror Reject His Own Life Experiences? 54 UIC J. Marshal L. Rev. 627 (2021) at p. 644

Experts in the Jury Room, 69 Stan. L. Rev. 911 (2017) 

In re Malone, 911 P.2d 486-487 (Cal. 1996) (psychologist juror committed misconduct in critiquing polygraph study admitted in evidence) 

Using Geofence to Discover Juror Social Media Activity Requires Warrant

 I discovered that a company selling software for social media searches published in a blog that an inquiring law enforcement should use software and a geofence to discover juror social media activity while at the courthouse during a trial.  This is an interesting suggestion but fails to mention one important requirement: LAW ENFORCEMENT MUST ESTABLISH PROBABLE CAUSE FOR A CRIME WITHIN THE GEOFENCE AND OBTAIN A SEARCH WARRANT FOR PHONE RECORDS.  

For example, if a burglary occurs at a business, law enforcement can seek a warrant for cellphone activity within the close vicinity of the store during the possible hours of the burglary.  Then they can obtain the cellphone records from the phone carrier.  But there must be probable cause that a crime was committed within the geofence and the scope of the warrant must be limited in time and location.

Jurors Must Not Deliberate Until So Instructed By Judge

 Standard instructions to the jury prior to the hearing of evidence include that they must not discuss the case among themselves until after final instructions and submission of the case to them.  The Georgia Court of Appeals in McCloud v. Georgia, decided 5-1-24, rendered a decision in a case where a bailiff noticed juror notes on a whiteboard in the jury room.  The bailiff told the jurors they must not discuss the case until the judge told them to deliberate.  However, the bailiff also erased the whiteboard but should have at least taken a photo of the notes and informed the judge so the judge could deal with the issue.  The defendant was convicted.  On appeal he alleged ineffective assistance of counsel in that his attorney did not seek a mistrial once the "deliberations" issue was revealed.  The appellate court found this was not a basis for ineffective assistance of counsel as trial counsel felt the trial was going well and that a second trial would not likely have a better result, expressly waived any objection and only sought a curative instruction.  Perhaps defense counsel would have addressed the issue differently had counsel seen the notes, but that would have revealed how some of the jurors were thinking (which is forbidden).

Source: National Center for State Courts

Not Every Failure to Disclose by Juror is Grounds for Mistrial

 I have discussed in other posts the need for the jury questionnaire to use laymen's English, not legalese.  Likewise, questions must be clear.  This was the case in Davis v. State of Arkansas, 2024 Ark. 49, where after a guilty verdict, defense counsel moved for a new trial on several bases, one being that a juror failed to disclose during void dire that her sister worked for defense counsel.  The argument was that if disclosed, that juror would have been excused for cause and another juror seated, therefore the defendant was denied the right to a fair trial.  The trial court's denial of the new trial motion was upheld by the Supreme Court of Arkansas, reasoning that the juror was never asked if any member of her family was associated with either of the attorneys.  The juror in question had no duty to voluntarily disclose this fact as she was never asked that question.

Several times during void dire I asked the panel whether any of them (22) had ever been sued.  No one raised their hands.  Then I asked if any had been divorced.  About half the panel raised their hands.  They didn't think a divorce case was a lawsuit.  Likewise, often they didn't't think a DWI charge was a criminal offense.

Jurors in High-Profile Cases Face Unique Challenges

 An excellent article in the Washington Post on 4-18-24 was written by columnist Philip Bump about his own experience as a juror in a high-profile case in a NY courtroom.  He served over several months, at $40 a day, sitting in the case of financial crimes against persons associated with socialite Brooke Astor,  The case was followed intensely in the media.  One juror was discharged for reading the NY Post in the jury room.  Mr. Bump's experiences in 2009 were likely similar to what the current Trump jurors are going through, yet social media coverage was certainly substantially less 15 years ago.  

Challenges include avoiding, even unintentionally, being exposed to news coverage about the trial, and social media inquiries by friends and family.  The certain financial pressures of those not earning a wage while on jury duty cause undo stress.  And probably most obvious, fear that one's identity will be revealed, leading to threats and coercion by the defendant's supporters.

We owe much gratitude to these jurors serving the administration of justice under difficult circumstances.  

Are Anonymous Jurors Really Anonymous?

 In high profile criminal trials judges will often order that the identities of the jurors shall remain anonymous.  If a party or attorney discloses their identity it can lead to coercion or threats against the juror.  But do they remain anonymous?  If it is disclosed that Juror #10 is a female living in a certain city who works in an elementary school as a paraprofessional, it seems likely her friends and acquaintances, who likely know she is in the jury pool, will conclude she was seated as a juror.  Those friends can then identify the juror on social media, leading to widespread disclosure of their identity.  One juror in the current trial in NY federal court was excused when she reported feeling intimidated because her identity had been revealed on social media.   Protecting parties, witnesses, lawyers, jurors and court personnel from threats or coercion is a serious issue that needs to be addressed in the judiciary and in the media.  In the days ahead we must watch to see if the identities of the sitting jurors are protected. 

The first anonymous jury was a federal trial of drug kingpin LeRoy Barnes in New York in 1977, according to The NY Times.

The judge in the trial in NY allowed the attorneys to know the names and addresses of the jurors, but those names and addresses re shielded from the press and public.  The judge cited "a likelihood of bribery, jury tampering, or of physical injury or harassment of juror(s)."  Of what use are the names and addresses of jurors to the attorneys?  They most certainly have searched each juror's social media presence, history in the courts, and education and employment history.  This basically allows in-depth "cross-examination" of each juror during selection.  An already-seated juror in the NY trial was excused after having failed during examination to reveal his arrest in the 1990's and his wife's investigation for corruption.

In Court there is simply THE TRUTH, not each person's opinion of the truth.

Another "Sleeping Juror" Case

💤😴 A few days ago in western Wisconsin a criminal trial was ongoing against a defendant who allegedly stabbed to death another at the Apple River recreational area.  The State sought to have a juror discharged for being inattentive during the trial and allegedly sleeping.  In a lengthy trial it is concerning to the court to run short of alternates in case another juror is ill or discharged for cause, leading to a mistrial.

The arguments, testimony of a witness to the alleged sleeping, and judge's comments are on YouTube with a transcript.  (Search: Apple River trial sleeping juror). The Motion to discharge the juror was denied.   The defendant was convicted of reckless homicide.

See prior posts here dated 3-1-12 and 12-8-11.

British Solicitor Suspended From Practice of Law for Misconduct as Juror

 Even lawyers serving as jurors can suffer serious consequences for Internet research in violation of the judge's orders.  In March 2021 a 25-year veteran British solicitor was serving as a juror in a civil case.  She researched real estate records relevant to the case, disclosed her findings to the jury, caused a mistrial, and delayed a retrial for 8 months at substantial expense to the parties and lawyers.  The solicitor spent 4 months in jail, literally serving as a jailhouse lawyer assisting her fellow inmates.  In addition, she failed to maintain the public confidence in the solicitor profession.  (Solictors assist trial lawyers but do not themselves appear as a barrister, that is, trial counsel.).   In January 2024 she was suspended from practicing law for 8 years and ordered to pay 5,000 pounds in costs. 

The Financial Burden of Jury Duty

 One aspect of jury duty of which I was always concerned was the financial strain of a lengthy trial many citizens..  Most of the trials I presided over in state court lasted no longer than 10 court-days.  After being appointed to the bench I quickly stopped suggesting to the potential jurors the numbers of days the trial would likely require.  Trials are often delayed by illness of participants, witness issues, technology issues, etc.  Where I worked a significant portion of the jury pool were self-employed people in the trades, farmers, students with part-time jobs, and day care providers.  They could not afford to lose even a week of income.

A lawyer in the notorious Young Thug trial last week opined that the trial may go into 2027.  I recall several decades ago when the tobacco company trials in Saint Paul, Minnesota, federal court went for many months, several of the jurors had to file bankruptcy, having been out of work during the course of the trial.  The court-paid jury fee is pathetic, often $20-50 a day.  Many citizens who are self-employed or will not be paid by their employer genuinely are afraid of financial ruin if not excused from jury duty.

Just Google 'avoiding jury duty" and you may be surprised at what you will see. 

The Juror Who Found Herself Guilty

 This is the title of an amazing article by Michael Hall in the February 2024 issue of TEXAS MONTHLY about a jury in December 1990 that wrongfully convicted a Texas man of raping an 8 year old girl and the last holdout juror who also convicted but decades later decided to do something about it.  Carlos Jaile lost over 3 decades of freedom because law enforcement, the jury and the judicial system failed him.  Yet one small woman, after decades of guilty feeling, changed his life. It is a story not unlike the movie "Twelve Angry Men" but with a different verdict and ending.  

Juror Sentenced to Maximum 179 Days in Jail and $500 fine

 To update Dec 15, 2023, post, the juror arrested for misconduct in the Okafor resentencing trial was herself sentenced to the maximum allowable punishment in January:  179 days in jail and a $500 fine. Her misconduct resulted in a mistrial, the cost of which the judge estimated to be $200,000 but he could not assess the cost to her.

Another Juror Dismissed in Young Thug Trial

 Another juror has been dismissed from the Young Thug trial as she is moving out of Fulton County, Ga., where the case is being tried.  The judge has said the trial is expected to go into 2025 and if the juror no longer resides in Fulton County when a verdict is rendered, the verdict could be invalid.  Neither side in the case objected.  Just another in a long history of delays, jury selection having taken nearly a year.  In addition, counsel for one of the defendants has been indicted for gang activity arising separate from this case and will likely withdraw to deal with her own case.

Judge Finds Defense Counsel Failed to Prove Juror Misconduct

 January 3, 2024:  A Florida judge found that defense counsel failed to prove juror misconduct in a trial in which a jury awarded the Kowalski family $211 million against Johns Hopkins All Childrens Hospital for false imprionment and other counts involving their daughter, Maya, then 9, now 17.; and the suicide of her mother over the distress of her daughter's care.   It was alleged that during the trial the jury foreman's wife posted about the trial on social media and attended court one day and that they both posted comments after the trial.  Juror #1 denied talking to his wife about the trial while it was taking place and denied doing any research during the trial, including about hospital physicians.  Other proposed questions by defense counsel were not allowed.  Defense's new trial motion was denied. 

"The Uncharted Wilds of the Internet" Cited by DA in Young Thug Trial

 The prosecutor in the Young Thugs trial dropped their motion to ban cameras in the courtroom for the safety of witnesses.  However, they will seek anonymity on a case-by-case basis as each witness is called.  After one witness' phone number was posted in "the uncharted wilds of the internet," said the prosecutor, the witness received threats.  So what will happen if and when the former president goes on trial and cameras in the courtroom and anonymity of witnesses become issues?

More.Drama at Young Thug Trial: Zooming Participant Shouts

 Today, January 10, a Zooming participant in the trial shouted "Free Thug Mistrial" when a break was beginning.  One can only wonder what else can happen after this 15th day of the trial.  No other details about any investigation.  My experience with Zoom hearings over 1-1/2 years is that it may be difficult to determine the identity of the miscreant.  Generally, a defendant cannot by their own behavior cause a mistrial.