Juries

Improper Juror Contact: Be Careful What You Tell Jurors

The Volokh Conspiracy blog has an interesting post about a 2004 Iowa Supreme Court case State v. Baker. The case started with the criminal conviction of Greg Shoo who was a friend of Rosemary Baker. Upon learning of Shoo's conviction, Baker called Debra Krause a juror who sat on Schoo's case. In the brief telephone call to Krause, Baker informed her that she gave the defendant "25 years." Although Krause found the call non-threatening, she was nonetheless bothered and upset by it. Thus, she contacted the police and Baker was successfully prosecuted for juror harassment. The relevant Iowa statute reads as follows:

A person commits harassment when, with intent to intimidate, annoy, or alarm another person, the person ... [c]ommunicates with another by telephone, telegraph, writing, or via electronic communication without legitimate purpose, and in a manner likely to cause the other person annoyance or harm.

Iowa Code § 708.7(1)(a)(1) (emphasis added).

As discussed by Prof. Volokh, this case raises some important First Amendment questions. It also raises the age old question of whether jurors should have a role in sentencing the defendant. A minority of states allow jurors to play such a role. 

Louisiana Jurors May Soon Have the Right to Take Notes

At present, jurors in Louisiana may take notes during trial subject to the approval of the defense and the prosecution. However, jurors in Louisiana do not have a right to take notes. This may change if state senator Edwin Murray has his way. His bill SB5 would give jurors this right. SB5 would also allow jurors to receive a copy of the charges in the case. While Louisiana would be one of the few states to give jurors the right to take notes, more and more jurisdictions are moving in the direction of giving jurors increased tools (notes, questions, pre-deliberation discussions, etc.) to carry out their duties.

For more on this topic go here.

Jurors' Facebook Posts Not Enough to Overturn Guilty Verdict

An appellate court in Massachusetts recently upheld the conviction of a defendant for embezzlement despite the fact that two jurors who sat on the defendant's case discussed their jury service on Facebook.  While the appellate court deemed the jurors' public Facebook posts to be inappropriate, it did not find that they resulted in the jurors being exposed to extraneous influences. 

The defense appeared to indicate that the public Facebook posts of the jurors were indeed insufficient to demonstrate an extraneous influence. However, the defense claimed that the real problem was that the trial court decided this issue without all the necessary information. Apparently, the defense had subpoenaed Facebook to gain access to the private posts of the jurors. When the trial court held an evidentiary hearing to look into this issue of juror misconduct, Facebook had not responded to the defendant's subpoena request.  

The appellate court found defense's argument unpersuasive.  According to the appellate court, [t]he defendant...could offer only unsupported speculation that the desired subpoenaed documents might include previously undisclosed communications of extraneous information to the jurors. It was therefore within the judge's broad discretion to deny the motion for new trial without awaiting Facebook's response to the subpoena.

The case, Commonwealth v. Werner, is available here.

Extending Batson to Sexual Orientation

As some people know, an attorney cannot use a peremptory challenge to remove a juror because of the juror's race or gender.  To do otherwise would be a violation of Batson and its progeny.  At least two states (California and Oregon) have extended Batson through legislation to cover a juror's sexual orientation.  Minnesota may soon follow suit if state Senator Scott Dibble has his way.  He recently introduced SF 1777  (Jury service exclusion due to marital status or sexual orientation) in the Minnesota state senate.  The bill prohibits excluding anyone from jury service because of their sexual orientation and marital status.  At present, Minnesota law currently bars discrimination in jury selection based on race, color, religion, sex, national origin, economic status, or a physical or sensory disability.

For more background on this topic see the articles below.

Huffington Post: Discrimination Against LGBT Jurors Remains Legal

‎Union Tribune: Judge slams prosecutors for dismissing gay juror

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Illinois SCT Approves of Questions by Jurors in Civil Trials

The Illinois Supreme Court has officially endorsed the practice of allowing jurors to ask questions of witnesses in civil cases.  Although the practice has been used previously by some Illinois judges, the recent decision removes any doubt that the practice is authorized.  This decision by the Illinois Supreme Court follows a growing movement in the country to allow questions by jurors e.g., both Florida and Michigan recently started to allow the practice.  Many see juror questions as a way to improve juror comprehension and juror decison making.

Last summer, I testified before the Illinois Supreme Court Rules committee on this issue.  One of the reasons that I gave in support of allowing juror questions was that it would cut down on juror misconduct.  I argued that if jurors were allowed to ask questions they would be less likely to go online and conduct their own independent research of the case.

Here is how the process will work in Illinois.

 At the conclusion of questioning of a witness by attorneys, the trial judge will determine whether the jury will be afforded the opportunity to question the witness. If ques-tions are deemed appropriate by the trial judge, jurors will be asked to submit any question they have for the witness in writing. No discussion regarding the questions is allowed between jurors. The bailiff will collect any questions and present them to the judge who will mark them as exhibits and make them part of the record.

The judge will read the questions to all the attorneys outside the presence of the jury, and give counsel an opportunity to object to the question. The trial judge will rule on any objections and the questions will either be admitted, modified or excluded.

The trial judge will ask each question that is permitted and will instruct the witness to answer only the question presented. The judge will then provide all counsel with an opportunity to ask follow-up ques-tions limited to the scope of the new testimony.

To read more about the decision go here.

Juror Counseling in North Carolina

As discussed in the article below, North Carolina (a few other states have made similar efforts) recently announced a program to assist jurors who suffer from undue stress from their jury service. While it is great that North Carolina has recognized that jury duty can, at times, be stressful, the mental health services offered are fairly limited. Since this is just a pilot program, I am hoping that in the future, jurors receive more in the way of mental health services.

News & Observer: NC jurors get way to help cope

Jurors in trials where judges determine that the evidence might cause mental distress will be given a toll-free number to contact a licensed mental-health professional for what Smith called "one confidential telephonic triage or face-to-face assessment." During the assessment, the jurors' needs will be identified and appropriate resources recommended. If additional counseling is needed beyond the initial visit, jurors will be referred to either a provider in their health plan or to an affordable community resource.

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Bus Passes and Jurors (Knappett vs. King County Metro)

In Knappett v. King County Metro, a Washington appellate case, Knappett sued the bus company because he sustained injuries "after slipping while exiting the bus on a rainy day."  According to the plaintiff, the "yellow nosing strips, located at the edges of the stairs of Metro buses, become dangerously slippery when wet." 

In an ironic twist, the jurors deciding the case were provided King County Metro bus passes by the court so that they would not have to pay transportation costs associated with jury duty.  Apparently, this was standard procedure at the courthouse for all jurors. Both sides were aware that the court provided jurors bus passes.

Following a verdict in favor of the plaintiff, a juror came forward and revealed that he "had tested the slipperiness of a yellow nosing strip while exiting a Metro bus on the last day of trial."  Upon learning this information, "Metro moved for a new trial based on juror misconduct [among other things].  The trial court denied the motion."  The appellate court upheld the trial court's decision finding that the actions of the jurors [two jurors actually tested the nosing strip but the appellate court focused primarily on the actions of one particular juror] was not misconduct nor did it affect the verdict.  

As a general rule, jurors may rely on their life experiences when deciding a case.  However, they may not rely on extrinsic evidence this includes conducting experiments to learn information not introduced into evidence.  In this case, the trial judge found that stepping on the yellow nosing strip was not extrinsic evidence but rather part of a juror's "everyday experiences during the trial." The trial court further noted that "[e]verbody knew they [jurors]were going to have to step on those strips getting on and off the buses."  The trial court also pointed out that "Metro possessed all the information necessary to conclude that jurors might encounter the yellow nosing strips as part of their everyday experience during the trial...and jurors would naturally bring this knowledge with them into deliberations." 

The trial court concluded by finding that because the juror's "observations were consistent with the uncontroverted evidence adduced at trial, it could not have prejudiced Metro's case."

 

New Michigan Law May Increase Minority Representation on Juries

Michigan now has a new law (Public Act 3 of 2012) on the books that in the words of the governor will "address[] a contributing factor to the under-representation of minorities on juries."  Pursuant to the new law, potential jurors cannot be disqualified from service simply because they did not return juror questionnaires.  Jury boards now will be required to send questionnaires to each person on a jury list, regardless of whether that person has failed to return a questionnaire in the past.

Go here to read the new law.

Jury Nullification Bill Passes NH Senate

Boston Globe: NH Senate votes to allow juries to overturn law

‎Concord Monitor: Senate to take up jury nullification legislation

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NJ Prosecutors Seeking Information on Prospective Jurors

Prosecutors in Essex County, New Jersey believe that some prospective jurors are less than honest when asked about their criminal records.  Thus, the top prosecutor in the county last week asked a trial judge to start releasing the birth dates of prospective jurors so that prosecutors could check their criminal record. 

Researching or investigating jurors is not a new concept (see for example the trial of Bruno Hauptmann which occurred in New Jersey), however, over time the practice had fallen out of favor with most.  In the Digital Age, the practice has been resurrected.  With so much personal information on the Internet, attorneys are increasingly going online to investigate or monitor jurors.  In fact, at least one jurisdiction (Missouri) requires attorneys to run basic searches on jurors if those attorneys want to later raise a claim of juror misconduct.  Investigations help remove untruthful and biased jurors and increase the likelihood that jurors will follow the court's instructions. Thus, it appears to me that this request by the NJ prosecutors should be granted.