Juror misconduct: balancing the need for secret deliberations with the right to a fair and impartial trial.

• Author: Willis, Craig B.
• Position: Florida

As judicial restraint on post-trial juror contact has relaxed in recent years, not surprisingly, litigation arising out of alleged juror misconduct has increased. In the past, behavior by jurors that would invalidate a verdict fell within a narrow range of objective categories of misconduct.[1] Recent judicial trends mark an increasing focus on social issues, which in turn impact on the justice system's concern with the fair and impartial determination of criminal guilt or innocence and resolution of civil disputes.

The rule in Florida, in cases involving allegations of juror misconduct, has been that matters which essentially inhere in the verdict are not grounds for setting aside the verdict. Historically, whether a matter inheres in the verdict has depended upon whether influence or information external to the jury's deliberations had a reasonable possibility of prejudicial impact on the outcome of the verdict. Marks v. State Road Department, 69 So. 2d 771 (Fla. 1954). A verdict was set aside when it could be shown that some impropriety occurred during the trial or in the jury room, such as when a juror was improperly approached by a party, agent, or attorney; witnesses or others conversed as to the facts or merits of the cause out of court and in the presence of the jurors; or when a juror visited the scene without leave of court, or conducted an experiment and communicated the results to the other jurors. Id. at 774.[2]

This distinction between overt acts of misconduct and matters which inhere in the verdict was the judicial separation between misconduct which constituted a sufficient basis for a new trial and other types of irregularities that might occur during jury deliberations.[3] This distinction has been followed by the Florida courts for a number of years when dealing with allegations of juror misconduct. The rule is codified in the Florida Evidence Code, F.S. [sections] 90.607(2)(b).[4]

In addition to misconduct which is considered extrinsic to the verdict, a special category of misconduct exists for verdicts determined by aggregation and average (quotient verdicts), by lot or game of chance, or other artifice. Verdicts determined in this manner are uniformly set aside.[5] Other forms of misconduct have generated litigation over the impact of the alleged misconduct on the fair and impartial administration of justice. One of the tenets of a fair trial is that the jury should consider only evidence or information received in the courtroom during the evidentiary phase of the trial.[6] Unless the allegations of misconduct included consideration of information not received in court, or there has been improper contact with members of the jury during the course of the trial or deliberations, the courts have been loath to consider requests to set aside verdicts, despite indications of irregularities, misunderstandings, and errors in the determination of the verdict.[7]

In situations where jurors have received information outside of the courtroom, or have independent and undisclosed knowledge of the parties or events, the potential for a miscarriage of justice is obvious. Our system of justice places a high value on the right of cross-examination and the right to confront the evidence as tools to obtain a fair trial. When a litigant is deprived of those rights, the judiciary is quick to overturn the presumed prejudiced results in those instances.

For example, in Russ v. State, 95 So. 2d 594 (Fla. 1957), the defendant was convicted of first-degree murder without a recommendation of mercy. After trial, the attorney for the defendant learned that, during the jury's deliberations, a member of the jury told the others that he had personal knowledge that the defendant had severely beaten the deceased victim on numerous occasions, that the defendant had threatened to kill the deceased victim on numerous occasions, and that the defendant had beaten the deceased unmercifully on the day preceding the shooting. These matters had not been heard in evidence during the trial, but the juror told other members of the jury that he knew these facts to be true. The juror made this statement after the jury had voted eight to four to recommend mercy. A new trial was mandated by the appellate court.

Visiting the scene of an accident or crime, or conducting an experiment and reporting the results to other members of the jury, are common examples of juror misconduct involving the consideration of extrinsic information which result in a new trial. Bickel v. State Farm Mutual Automobile, 557 So. 2d 674 (Fla. 2d DCA 1990), involved a personal injury case in which it was discovered after the trial that the jury foreman allegedly drove to the scene of the accident and conducted an experiment. He then communicated the results to other members of the jury. The appellate court concluded that a juror interview should be conducted to determine whether there was misconduct which affected the verdict.[8]

Bringing into the jury room written material that can have an effect on the outcome of the verdict constitutes misconduct that requires a new trial. In Keen v. State, 639 So. 2d 597 (Fla. 1994), an unauthorized magazine article found its way into the jury room and a new trial was required. The article involved trial tactics of defense attorneys. The Supreme Court concluded that the article could have influenced jurors. Dictionaries and legal treatises brought into the jury room virtually guarantee a new trial.[9]

Invariably, dictionaries and other legal treatises are consulted by the jury in an effort to define legal terms that may have a special meaning. However, merely having extraneous written materials in the jury room will not cause a mistrial. For example, in State v. Hamilton, 574 So. 2d 124 (Fla. 1991), a capital murder case, the allegation was made that an alternate juror brought automobile magazines into the jury room that contained an advertisement which, according to defense counsel, had the potential to distract jurors and prejudice the defendant.[10] The Supreme Court noted that the "introduction of unauthorized materials conceivably could have a powerful and often unascertainable impact on a verdict or jury recommendation, potentially violating the right to a fair trial guaranteed by the state and federal constitutions." Id. at 126. The Hamilton court applied a harmless error analysis, giving close scrutiny to the type of unauthorized material involved, its relation to the issues at trial, and the extent to which jurors actually consulted the material. The Supreme Court concluded that the magazines were irrelevant, both as to the legal and factual issues of the case. Therefore, a new trial was not required.

The procedures for determining whether a new trial should be granted are outlined in the Hamilton decision. If the court determines that there is a reasonable possibility that the overt act of misconduct prejudicially affected the jury in reaching its verdict, then a new trial should be granted. During the jury interview, jurors are allowed to testify about overt acts which might have prejudicially affected the jury...