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Sometimes Jurors Do the Darndest Things
The National Law Journal
A jury trial is considered the gold standard of the American criminal justice system. We pride ourselves on the trust we place in a group of citizens who decide the fate of their fellow Americans. To do this, jurors are expected to rely only on the evidence presented in their case.
But the reality is quite different. Jurors are inquisitive. They routinely ignore the judge's instructions and end up trying to use extrinsic information to make their decisions. Jurors search the Internet, go to crime scenes, discuss the merits of cases long before deliberations, have affairs with witnesses and even watch movies to determine whether to vote for the death penalty. Controlling jurors can be like herding cats. Not an easy task.
Therefore, it is not surprising that when misconduct occurs, judges are generally reluctant to find that it prejudicially affected their case. Judges do not operate under the illusion that jurors will be angels. They know that jurors do the darndest things. Often, the best the court can do is to instruct jurors correctly and then address juror misconduct when the issues inevitably arise.
In recent months, judges in both state and federal courts have faced an amazing array of alleged juror-misconduct issues. For example, in Giuca v. Lee, 2013 WL 2021336 (E.D.N.Y. May 14, 2013), after the jury convicted her son of murder, the defendant's mother went "to extraordinary lengths to transform herself into a sex-bomb, furnished a rented apartment as a 'playgirl's pen,' " and created a fake identity so that she could engage in a "quasi-romantic" relationship with one juror to find out if there had been any juror misconduct during the case. She then submitted affidavits recounting how the juror had intentionally concealed from the court his personal knowledge of some of the central issues and people of the case, and also violated the judge's admonition not to read or listen to media coverage of the case.
The reviewing court denied the defendant's petition for post-verdict relief. The hearsay affidavits were insufficient to support a request for an evidentiary hearing on juror misconduct. To dispel any suggestion that the verdict was invalid, the judge then went through each claim of misconduct to explain why, even if true, it would not have made a difference in the case.
Similarly, in Hanna v. State, 2013 WL 1952696 (Mo. Ct. App. May 13, 2013), the court rejected a defendant's attempt to overturn his murder conviction because jurors had schmoozed with police officers in the hallway during a break in trial. "While the conduct of a prosecuting witness in even innocently visiting with the jurors is to be avoided, nevertheless, the court has broad discretion in determining whether a mistrial should be granted." State v. Eaton, 504 S.W.2d 22 (Mo. 1973). Casual, brief discussions unrelated to the issues in a case do not constitute juror misconduct.
Courts are also reluctant to overturn verdicts on claims that a juror has expressed a belief in the defendant's guilt before all the evidence was heard. In Hamlin v. Yates, 2012 U.S. Dist. Lexis 178254 (E.D. Calif. December 14, 2012), a juror who had a change of heart after learning of the severity of the defendant's sentence alleged that another juror had said the case was a "slam dunk" for guilt even before deliberations began. The trial judge rejected that allegation, noting the complaining juror's dubious credibility and the possibility that the statement was made in jest.
The Hamlin court also rejected an all-too-frequent claim that a juror has conducted online research regarding a case. In Hamlin, the juror checked the Internet for definitions of "great bodily injury." However, he did not find any information affecting the jurors' decisions. A less tech-savvy juror on the same panel tried to bring a dictionary into the deliberation room, but because he did not actually consult it during deliberations, his conduct also did not jeopardize the conviction.
Another frequent allegation of misconduct is that jurors have ignored the judge's admonition not to draw negative inferences from a defendant's exercise of the Fifth Amendment right not to testify. Lawyers and judges have long suspected that the admonition has little impact on jurors. As in Coleman v. Sisto, 2012 WL 6020095 (E.D. Calif. December 3, 2012), jurors just cannot seem to help themselves from thinking that "if [the defendant] was innocent he would have testified in his own behalf." Juror misconduct raises a rebuttable presumption of prejudice. However, the presumption of prejudice from this conduct is easily rebutted if other jurors remind their colleagues of the court's rules.
Jurors also love to offer their own specialized knowledge during deliberations. For example, a juror in the Coleman case said during deliberations that his personal experience as a law enforcement officer gave him insights as to the reliability of lineup identification evidence. The court rejected the defendant's claim that this was misconduct because the juror was introducing prejudicial extraneous influences into the jury room. Jurors are allowed to bring their life experiences to bear on jury deliberations. Doctors sitting as jurors have been allowed to opine as to how mental illness caused the defendant to commit the crime. See Grotemeyer v. Hickman, 393 F.3d 871, 878-79 (9th Cir. 2004).
Judges are also reluctant to get involved in personal dynamics among jurors. For example, in U.S. v. Arroyo, 2013 WL 1189409 (9th Cir. March 25, 2013), jurors complained that one of their members was overtly hostile with her fellow jurors. The judge was not obliged to make the jurors get along so long as they did not coerce others into reaching a verdict.
Even in cases where jurors watch a movie on the realities of prison life to inform their decision as to whether to impose the death penalty, the court will not automatically find the outside influence to be prejudicial. Recently, in In re Boyette, No. S092356 (Calif. May 30, 2013), the California Supreme Court dismissed such actions as not inherently prejudicial.
Yet there are situations where juror misconduct is so egregious that it can result in a reversal. In People v. Pizarro, 2013 Cal. App. Lexis 402 (Calif. 5th Ct. App. May 21, 2013), the court threw out a first-degree murder conviction because a juror independently read an appellate opinion about the case that included information that had not been introduced in the second trial. The juror found the opinion on the Internet and studied it to better understand the DNA evidence in the case. The appellate court found the juror's actions were "gross misconduct" and "absolutely outrageous."
Similarly, in Chambers v. State, 739 S.E.2d 513, 517 (Ga. 2013), the court reversed a murder conviction because a juror spent time doing a Google search regarding Georgia's "defense of habitation" law. The juror "usurp[ed] the province of the trial court by presenting fellow jurors with 'law' she found [on] the Internet."
One of the greatest challenges for judges is differentiating outside influences that improperly affect jurors' verdicts from information that jurors naturally use as part of the deliberative process. Evidence codes typically bar jurors from testifying about "any statement made or incident that occurred during the jury's deliberations; the effect of anything on that juror's or another juror's vote; or any juror's mental processes concerning the verdict or indictment." Fed. R. Evid. 606(b).
Some cases are a close call. For example, in Colyer v. State, 395 S.W.3d 277 (Texas Ct. App. February 24, 2013), the jury foreman testified in a post-trial hearing that he changed his verdict to guilty because he received a telephone call from a doctor's office reporting that his daughter had tested positive for a serious illness. Upon hearing the news, he felt he had to change his vote to guilty so that he could end the trial as soon as possible, even though he doubted the state's case.
A majority of justices held that the foreman had been improperly affected by outside influences and reversed the guilty verdict. However, the dissent argued that the doctor's call was not an "outside influence" invalidating the verdict. Otherwise, normal jury-service pressures experienced to some degree by all jurors could be transformed into grounds for a new trial.
Indeed, one of a judge's most challenging tasks is to shepherd a jury through trial. Jurors come to cases with pre-existing biases, they look outside the record for information, and they probe where they should not probe. In the end, the only type of misconduct that is likely to lead to a new trial is that which undermines the court's confidence in the verdict.