The judge in the recent Apple v. Samsung patent case took an interesting approach to keeping the jurors from reading about or researching the case. According to the article below, the judge promised jurors before the start of the trial that if they adhered to the court's instructions not to go online and research the case he would at the end of the trial give the jurors a notebook of all the stories they had missed about the case. According to the court librarian, who was tasked with gathering and keeping the stories until the end of the trial, this was a first for him.
In U.S. v. Turietta, the defendant after a 7-hour trial was convicted of assaulting a federal officer. During the trial, his jurors were unsworn. Apparently, the only one who realized this fact was Turietta's defense counsel. After the jury returned a guilty verdict, defense counsel moved to set aside the verdict based on the fact that the jury was unsworn. The trial court denied defense counsel's motion.
On appeal to the 10th Circuit, defense counsel argued that the defendant's6th Amendment right was violated because the jury was unsworn. The appellate court was unpersuaded and found that the defendant through his counsel forfeited his 6th Amendment right. Specifically, the appellate court wrote:
By lying behind the log, Knoblauch [attorney for the defendant] failed to preserve the issue he wants us to decide. Quietly harboring an objection until it cannot be addressed effectively is the functional equivalent of making no objection—at the very least, a forfeiture.
This case also has great discussion on the historical and legal implications of the juror's oath.
To read about another recent case where defense counsel kept juror information from the court go here.
Here is a link to the motion by the defendants in the Kilpatrick corruption case requesting access to jury wheel information. The motion filed by the defendants is based on the 6th Amendment "fair-cross section requirement." In order for a defendant to have a fair trial, his jury, at least in the initial pool called to the courthouse, must be drawn from a fair-cross section of the community. As of late, there have been several news stories about the difficulties Detroit (the location of the Kilpatrick's trial) has had in getting a jury pool that reflects the community as a whole. Go here and here for those stories.
Earlier this month, the federal district judge handling the Kilpatrick case denied the defendants' motion finding that the information requested would not help the defendants make a "prima facie showing of a fair-cross section violation." The judge also noted that if the defendants wanted to "pursue a broader challenge to this District's jury selection procedure, [they] may obtain the information needed to make such a challenge from publicly available sources." The judge, however, did allow the defendants "to review the information regarding juror number, race, and Hispanic ethnicity for the current jury wheel." The defendants were seeking 12 years of past information about the jury selection process for the federal court in Detroit.
Last friday, the appellate court refused to hear the defendants' appeal on this issue. The appellate court stated that the appeal was premature and could be raised after a final determination of the defendants' guilt or innocence.
The juror questionnaire in U.S. v. Kwame Kilpatrick et al. is available here. The questionnaire, which has 122 questions, tells potential jurors that "[a]ll information contained in this questionnaire will be kept confidential and under seal." However, as demonstrated here and here, the media can generally get access to these questionnaires by legally challenging the trial judge's order of confidentiality.
Some of the non-standard questions from the questionnaire are excerpted below.
33. Which of the following best describes the way you most prefer to work?
__I like to lead a group of others
__I like to work on my own
__I like to work with a groupd where there is no single leader
__I like to work in a group with another person leading me on.
51. Do you enjoy playing "devil's advocate" or presenting oppoing positions when arguing or debating?
52. Do you find it difficult to change your mind, or let go of a previously held position?
67. What role, if any, do you think race plays in the criminal justice system?
69. Do you think African-American defendants are less likely to be offered a plea deal than white defendants?
Yes___ No ___
If yes, please explain:
75. Do you think minority politicians have a harder time succeeding in politics?
Yes___ No ____
If yes, please explain
76. What do you think of the current state of racial relations in the United States?
80. Do you regularly send text messages, IM's or Tweets to people?
Yes ___ No ____
If yes, approximately how many do you send a day?
81. Do you regularly blog or post your thoughts and opinions on the internet?
Yes _____ No ____
If yes, what sites do you regularly post on?
88. Do you think the media in Detroit has had a racial preference or bias in the way they have covered local stories in general?
The Judicial Conference Committee for the federal courts has recently updated its instructions regarding jurors and social media. These new instructions are available here. My brief observations and comments about the instructions are as follows.
1. First, I find it interesting that the courts found it even necessary to update their instructions. Not too long ago, (6 months) the courts released a "study" (based on the views of federal judges) that jurors were adhering to the court's rules on improper communications and research. Go here for my post on that study.
2. As for the instructions themselves, they are an upgrade from the previous instructions; however, they don't, among other things, address the "why" question. If you want today's jurors to follow court instructions, you have to tell jurors why they are important. In the Digital Age, it is too easy for jurors to communicate and conduct research about a case. If courts want jurors to trust them and not Google, they need to tell jurors why they should follow the court's instructions.
3. In addition, these rules don't tell jurors that they can't friend the attorneys. Recently, a juror not only sent a friend request to an attorney, but also asked if the attorney was single. For more on that issue go here.
4. These rules also fail to adequately inform jurors about the consequences and penalties for violating the court's instructions.
5. Finally, I have previously discussed and analyzed an earlier version of these jury instructions in which I go more in depth in pointing out their shortcomings. Go here for my law review article on that topic. That law review article also contains my proposed jury instructions.
As of late, judges are increasingly turning to anonymous juries. Historically, anonymous juries were relegated to cases where juror safety was an issue or when the judge thought that someone might try to influence the jury's verdict. However, today judges are empanelling anonymous juries in the name of juror privacy. The article below criticizes this growing trend.