Reining in juror misconduct: practical suggestions for judges and lawyers.

• Author: Artigliere, Ralph
• Position: Florida

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Juror misconduct (1) is not a recent problem. (2) Despite instructions from trial judges to the contrary, jurors have been too often tempted to access information from outside the courtroom. (3) Years ago, one solution to the elimination of outside influence on jurors was sequestration. Sequestration is still used in noncapital criminal cases in Florida at the trial court's discretion and is required in death penalty cases, absent waiver or special circumstances. (4) In civil cases, however, economics, not to mention inconvenience and discomfort to jurors, has all but eliminated sequestration as a viable method to prevent contact with the outside world. (5)

Why is juror misconduct on the rise? Consider the setting for today's jurors. Most jurors enter a place and a system they know little about, except through cultural sources of the press, television, movies, and now the digital media. Many of them, perhaps most, will have at least a cell phone, and an increasing number of jurors will have equipment and habits that keep them in audio, text, and visual media contact with the world and other people through phone or Internet. Some will be extremely attached, to the point of dependence, on their phone, iPod, Blackberry, or other device, a form of behavior that is a product of relatively recent cultural shifts and is fully understood only by others with similar techno-savvy skills and behavior. Judges and lawyers should take into account the motivation, capability, or dependence of such jurors on their equipment. (6) Some jurors will want to text what they are doing at any given moment and why they are doing it to friends, family, and thousands of strangers. To say that current jurors have enhanced temptation and ability to communicate about the trial with the outside world is the understatement of this still young century. Jurors have the capability instantaneously to tweet, blog, text, e-mail, phone, and look up facts and information during breaks, at home, or even in the jury room if they are allowed to keep their digital "windows to the world." Jury instruction by the judge about communication outside the courtroom has not kept pace with technology. (7)

The problem of outside influence on jurors is no longer confined to high profile cases that are covered in the press or other media. Courtroom misconduct seems to be everywhere. Recently, a witness in Miami was discovered texting his boss about his testimony during a sidebar conference resulting in a mistrial; (8) a South Dakota juror in a seat belt product liability case Googled the defendant and informed five other jurors that the defendant had not been sued previously; (9) a juror in a federal corruption trial in Pennsylvania posted his progress during deliberations on the Internet resulting in a motion for mistrial; (10) a juror in Bartow, Florida, looked up a defendant's "rap sheet" online and told fellow jurors, resulting in a mistrial; and jurors in a Florida criminal case made anti-Semitic comments to each other and consulted one of the jurors' accountants during deliberations by telephone. (11) Nine of the jurors on a deliberating panel in a federal case in Miami admitted to the judge that they had been doing research on the case over the Internet, resulting in a mistrial. (12) The judge learned that the jurors were Googling the lawyers and the parties, finding news articles about the case, researching definitions and information on Wikipedia, and looking for evidence that had been excluded in the case. All this was accomplished despite the judge's repeated instruction not to do so. (13) These examples represent recent transgressions that were discovered, and probably represent just the tip of the iceberg of juror behavior. (14)

Another dilemma is that jurors digitally linked to the outside world may receive unsolicited information relating to the trial from friends and family who know about their jury service. They may receive texts or e-mails inquiring about how the case is going or whether it is interesting. Outsiders thinking they are being helpful may forward articles or other materials they have found on the Internet to jurors. Texts or tweets may include unwanted advice or input of the "hang that crook!" variety. It will be hard for the juror not to read such incoming material. Thus, a juror who does not intend to go looking for information or influencing commentary from others gets it anyway.

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Improper juror communication and research are only part of the problem. Another insidious type of juror misconduct is misrepresentation or disinformation provided to the judge and lawyers in qualification and voir dire. Deception during voir dire deprives the examining attorneys and the judge of the opportunity to obtain accurate information for challenges for cause and peremptory challenges. The level of deception ranges from jurors who puff their qualifications or hide or gloss over information to avoid embarrassment to "stealth jurors" on a mission and willing to lie to get on the jury in order to carry out an objective for or against one of the parties. Regardless of motive, jurors who betray their oath as jurors subvert the jury system and threaten the fairness of the process.

Remedies for Juror Misconduct Are Inadequate

When discovered, juror misconduct raises the potential of a mistrial or new trial. (15) The parties have a fundamental right to a proper jury, and juror misconduct invokes issues of fairness and due process. (16) However, before granting a new trial, the trial judge and lawyers must accurately get to the bottom of the circumstances of misconduct through investigation and interview of the juror or jurors if necessary. (17) When the claimed misconduct involves improper juror research, under the evidence code, the court must determine whether the misconduct was inherent in or external to juror deliberations. (18) A juror interview will not be granted unless the judge determines that the movant's affidavits establish that juror misconduct occurred as a result of some outside influence, such as the receipt of nonrecord evidence. To merit a new trial, the result of the juror interview must confirm actual juror misconduct involving an external influence. (19)

For alleged juror deception during voir dire, the judge must apply a three-part test set forth in the Florida Supreme Court case of De La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla. 1995): "[T]he complaining party must establish: 1) the information is relevant and material to jury service in the case; 2) the juror concealed the information during questioning; and 3) the failure to disclose the information was not attributable to the complaining party's lack of diligence." (20) Intentional or not, deception during voir dire warrants a new trial only if counsel was prevented from making an informed judgment that likely would have led to a peremptory challenge. (21)

The very real problem is that even if the illegal behavior is discovered, and if the court can be convinced to interview jurors, and if the De La Rosa standards or outside influence are established, the remedy is a new trial, an unhappy and costly outcome for both sides. With out question, the best solution is to prevent juror misconduct in the first place, or at least to reduce its incidence as much as possible.

How to Head Off Juror Misconduct

Juror misconduct may occur intentionally or through juror ignorance or oversight. Perhaps better, clearer, and more comprehensive jury instructions would help motivate most jurors to avoid mistaken misconduct. Of course, regardless how clear an instruction is, it may not be enough to prevent intentional misconduct. Jurors need to know the consequences of their misconduct. Toward that end, the standard jury instructions already reference perjury during voir dire. (22) Moreover, in a letter dated August 26, 2009, Justice Fred Lewis requested that the Florida civil and criminal jury instruction committees consider and jointly propose a "uniform approach [to the problem of electronic communications and research by jurors during the case] along with uniform jury instructions to be used in all cases" by January 11, 2010. In his letter, Justice Lewis referenced a new Michigan rule requiring the judge to instruct against the use of electronic devices at the time the panel is sworn. (23) It remains to be seen what results from this request.

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In the meantime, should the judge or parties do more? For example, the judge or lawyers could inform the jurors that the lawyers will be checking on them to see whether jurors were truthful in voir dire. The disadvantage is the potential of creating a hostile atmosphere in court, where such does not need to exist. Who would not feel uncomfortable with such a representation? Likewise, specifically delineating what activities are prohibited may be counterproductive. First, the off-limits behavior may not otherwise occur to jurors until the judge raises it. By instructing on what not to research, jurors may speculate on what the judge and lawyers are keeping from them. (24) Worse yet, some jurors may experience what has been termed the "reactance effect," when denying jurors freedom causes them to try to obtain the forbidden information. (25) That approach could result in conjecture or, worse yet, suggestion of research for jurors subject to temptation. Judicial instruction should be tempered with these potential downsides in mind. But something can and should be done to improve judge and lawyer communication with jurors about juror misconduct.

This article suggests tempered...