Revisiting Bill Whitford’s work on the role of the jury in contract interpretation and his work on consumer form contracting inspired us to take a careful look at a doctrine of contract interpretation that is usually thought to help consumers in interpretive battles with those who draft their contracts unilaterally. But we found that contra proferentem -- the canon that requires construing or interpreting a contract against the drafter when ambiguities arise -- is more confusing than we expected. What we have done here is lay out some of the complexities of the doctrine, focusing on its broader application outside insurance law, its exceptions and limitations, the difficulty of knowing whether it is a rule for the judge or the jury to apply, the various forms the rule can take, and the difficulty of knowing whether it is a default or mandatory rule. We hope laying out these complexities here helps courts and commentators in the future achieve more consistency and nuance in their applications and discussions of this commonly known but little understood principle of contract interpretation.
Here is an interesting article (the Illegality of Advocating for Jury Nullification) written by two lawyers who suppport the federal government's effort to prosecute Professor Heicklen for jury tampering. According to the authors of the article, Professor Heicklen crossed the line when he stood outside the federal courthouse in New York and handed out pamphlets with the following language:
The judge will instruct the jury that it must uphold the law as he gives it. He will be lying. The jury must judge the law as well as the facts.
Juries were instituted to protect citizens from the tyranny of the government. It is not the duty of the jury to uphold the law. It is the jury's duty to see that justice is done....
Once on a jury, must I use the law as given by the judge, even if I think it's a bad law, or wrongly applied?
The answer is "No. You are free to vote on the verdict according to your conscience."
For a defense of Professor Heicklen's actions go here. For more background on the issue go here.
Not your typical alternate juror mistrial case, but Tello-Lugo v. Florida illustrates that an alternate's presence during jury deliberations whether in the jury room or the courtroom can lead to a mistrial.
The record reflects that the trial court instructed the jurors to retire to the jury room to begin deliberations. The court then discharged the alternate juror. After approximately five minutes, the court received a note from the jury asking if the jurors could review a video recording that was played during the trial. The video equipment took around ten to fifteen minutes to set up. When the jurors entered the courtroom to watch the videotape, the court noted that the alternate juror was still present. The bailiff asked, "She wanted to stay, Judge, is she allowed?" The court informed the alternate that she had to stay in the courtroom and was not allowed to converse with the jurors.
Defense counsel moved for a mistrial, arguing that the alternate juror was in the jury room while the jury was deliberating. The alternate juror was asked if she had participated in the jury deliberations. She stated that the jurors had been "talking about everything that happened" and were "speculating and things like that." She admitted that she had been "listening and talking." The trial court denied the motion for mistrial.
Florida Rule of Criminal Procedure 3.280(a) provides that "an alternate juror who does not replace a principal juror shall be discharged at the same time the jury retires to consider its verdict." This rule is mandatory, not permissive. Berry v. State, 298 So.2d 491, 492 (Fla. 4th DCA 1974). Therefore, a defendant is entitled to a mistrial upon timely motion when an alternate juror is present during jury deliberations. Ludaway v. State, 632 So.2d 732, 733 (Fla. 1st DCA 1994). This rule applies when the alternate juror is present after the jurors begin discussion of the case, and not when the alternate is "present only during the time the jury engages in organizational activity such as taking breaks, making phone calls, or electing the foreperson and the case is not discussed in his or her presence." Bouey v. State, 762 So.2d 537, 540-41 (Fla. 5th DCA 2000) (finding that a harmless error analysis is appropriate if the alternate juror is present only during limited organizational activity)...
This week the Ohio Supreme Court unanimously ruled (State v. Downour) that if an alternate juror is present during jury deliberations and the defendant objects, the state bears the burden of proving that the alternate juror did not prejudice the defendant. In making its decision, the court stated that the "presence of alternate jurors during jury deliberations might prejudice a defendant in two different ways: either because the alternate actually participated in the deliberations, verbally or through body language; or because the alternate's presence exerted a chilling effect on the regular jurors."