In Kansas v. Mitchell, the Kansas Appellate Court recently tackled three jury related issues: (1) juror texting during trial; (2) Batson; (3) and inclusion of Allen charge in general predeliberation instructions. Since the last two issues don't really break new ground, I will focus on the first.
In Mitchell, the defendant was convicted of aggravated burglary and attempted aggravated robbery. On the second day of trial, counsel for the defendant asked for a mistrial because he believed that a juror was texting in the jury box. When asked by the judge if he had any direct evidence of the juror texting, the attorney stated that:
he observed the juror slumped down in her seat below the rail in front of the jury box, but that he did not know what she was doing...The judge noted that his bailiff advised him that juror number one was texting during jury selection, and that he had noticed the juror's hands were below the rail and that her focus was down towards her lap during the first day of the trial...
Based on this information, the trial court denied defense counsel's motion. On appeal, the appellate court determined that the trial judge did not abuse his discretion to deny defense counsel's motion for a mistrial. This decision was based on the fact that defense counsel failed to request an inquiry or utilize any post-trial procedure to investigate the matter.
The appellate court went on to say that Kansas trial courts should follow in the footsteps of Indiana and ban such electronic devices in the courtroom. The appeals court also noted that the jury instructions in Kansas regarding juror communications should be updated to reflect the new methods by which people communicate. The appeals court suggested adopting New York's instructions on juror communications.
While I agree that New York's jury instructions would be an improvement, I think Kansas like other jurisdictions should go further and adopt Jury Instructions for the Digital Age. Finally, as for banning electronic devices, I view this recommendation as the "Luddite Solution."