The article below examines the challenge of ensuring juror honesty during voir dire. I believe more and more attorneys will turn to investigating and monitoring jurors. Today's digital world has made it fairly easy to research someone's background.
As most readers of this blog are aware, today's attorneys are increasingly turning to the Internet to investigate jurors. Most, but not all, judges are okay with attorneys conducting such investigations. However, attorneys can run into problems when they are selective in their investigations. The article below raises the possibility that a few prosecutors in D.C. are more inclined to investigate the backgrounds of prospective jurors who are black.
District prosecutors ran criminal background checks on several potential jurors in a high-profile gang case, raising serious concerns from a judge who questioned why most people they selected were African American...to continue reading go here.
The federal judge in the Whitey Bulger trial announced on friday that she would grant the government's request to run background checks on prospective jurors. The judge's ruling was not a real surprise. What was surprising was that the government sought permission from the court to run the background checks. Another surprise was that the court is requiring the government to share the results of the background checks with defense counsel. As a general rule, information discovered about jurors is not subject to the rules of Discovery and need not be turned over to opposing counsel. For more background on the Bulger trial go here and here.
Prosecutors in the Whitey Bulger trial recently requested that they be permitted to run criminal background checks on prospective jurors. Not surprisingly, Bulger's attorneys are opposing the government's request. Bulger's attorneys claim that
In this case, there is no compelling reason as to why the Court should verify criminal background information provided by the juror. One’s criminal record is no more relevant to the juror’s fitness to serve on the jury than any of the other inquiries into the juror’s background.
I find this story interesting because juror investigations by both prosecutors and defense attorneys have become quite common. Thus, I am a little surprised to learn that the government would even first seek permission from the court before researching the jurors.
This case from Canada demonstrates the value of investigating jurors. In this case, Fred Prosser was charged with the first-degree killing of Sabrina Patterson. His 12-person jury was selected this past Tuesday. On that same day, the victim's family conducted an online investigation of the jury and discovered that one juror belonged to an anti-Prosser Facebook group. The victim's family relayed this information to the Crown (Prosecution) who informed the judge.
The next day, just before opening arguments, the judge declared a mistrial. The victim's family explained that they gave the information to the Crown because they thought it might, if discovered later, lead to a mistrial or appeal and thus require a second trial.
For more background information about this story go here.
Here is the order by the trial judge in the Jerry Sandusky child sex abuse trial denying defense counsel's motion to receive juror information collected by the prosecution. The judge makes some interesting observations in his order.
First he says that: "I do not believe, under the current state of the law, that the Defendant would be entitled the relief he seeks--access to the Commonwealth's jury research--because the defense simply has no constitutional due process right to get the information."
The judge then goes on to say that "[a]n attorney's collection of jury background material clearly falls within the category of work product under Pennsylvania law."
Finally, the court points out that "[i]ndeed, it may be argued that counsel, in fullfilling their duty of candor to the Court, have a duty to make some level of inquiry, either before or during voir dire, regarding whether prospective jurors are qualified under the law to serve."
Apparently, the prosecutors in the Jerry Sandusky child sex abuse case are leaving nothing to chance and have already investigated potential jurors who may sit on the trial. This fact was made known when the defense attorney representing Sandusky filed a motion requesting access to the juror information uncovered by the prosecution.
Unfortunately for the defense team, the trial judge ruled that the prosecution did not have to turn over any information related to the jurors. According to the trial judge, he does "not believe that the information [about jurors] is constitutionally required to be turned over..." Jury selection in this case starts tomorrow.
In the Digital Age, juror investigations have become increasingly popular with practitioners in both civil and criminal trials. However, some are bothered by the practice arguing that it infringes on juror privacy.
For more information about the practice of investigating jurors go here. For more information about the prosecution investigating the Sandusky jurors go here.
A federal judge denied a retrial on Tuesday for longtime Illinois powerbroker William Cellini, rejecting defense arguments that the 77-year-old didn't get a fair trial because a juror supposedly lied about her criminal past during jury selection
Late Tuesday, U.S. District Judge James Zagel put an end — for now — to the latest flap over whether a juror’s failure to disclose her criminal background had unfairly tainted a high-profile federal conviction.But Zagel’s finding that Illinois Republican powerhouse William Cellini is not entitled to a new trial won’t resolve the underlying problem of how far the courts should go in investigating jurors and how to avoid ending up in the same pickle again.