Juries

Background Check on Black Juror Causes Murder Conviction to be Tossed

Interesting article in the ABA  Journal which examines State v. Edwin Andujar.  In this case, the prosecutor attempted to have a black juror challenged for cause because of the juror's knowledge of the criminal justice system and familiarity with convicted felons.  The trial court denied the challenge so the prosecutor conducted a warrant and record check on the juror and discovered an outstanding warrant.  The prosecutor presented the information to the trial judge who subsequently removed the juror.  The defendant was ultimately convicted and appealed on several grounds one of which involved removal of the juror.  In overturning the defendant's conviction the appellate court found that

[r]ecord checks run because of dissatisfaction with a judge's ruling, as was done here, undermine the framework within which the trial proceeds and alters the court's exclusive province in administration of the jury venire. Because the court made no findings of fact concerning the prosecution's selective use of a criminal record check and granted no relief to the defense whatsoever, defendant's conviction must be reversed, his sentence vacated, and the matter remanded for a new trial.

Government Uses Jury Consultant in Noor Salman Prosecution

Apparently, private practitioners are not the only ones investigating jurors today.  According to the article below, the U.S. Attorney's Office, which is prosecuting Noor Salman, widow of Pulse nightclub gunman Omar Mateen, for obstruction and aiding and abetting, has requested permission to disclose the confidential names of prospective jurors to a consulting firm and its subcontractors. It appears that the government will use jury consultants "to assist with the review of the jury questionnaires and intend[s] to use the firm to conduct searches of public records and social media of the remaining jurors."  As I have written in the past, juror investigations are becoming increasingly common.  While I don't think they are required, they have become almost standard practice for many attorneys.

Orland.com: Jury consultants tapped for Noor Salman trial

Attorneys Decide to Forego Juror Research

The federal judge handling the patent infringement case between Oracle and Google instructed both parties that if they plan to investigate jurors they would have to inform jurors of this fact before the start of the trial. Apparently, this ruling made both sides so uncomfortable that they have decided to forego juror research altogether.  To read the judge's order go here.

Judge Issues Unique Order Related to Using the Internet to Research Jurors: Oracle v. Google

Judge Issues Unique Order Related to Using the Internet to Research Jurors: Oracle v. Google.

Here is a link to the Judge's order.  I excerpted the significant portions below.  It appears that the judge is giving the parties a choice between either foregoing juror research or explaining to jurors just how they will conduct their research.  Apparently, the judge wants to put jurors on notice that the attorneys in the case plan to investigate them online.  I think most jurors at this point already know that they will be researched.  It has been common practice for employers, colleges and landlords to conduct such research so why would court be any different.  However, even with that said, I think putting jurors on notice is a good thing.  Among other things, giving jurors this information may reduce instances of misconduct during trial because jurors now know that they are being watched.

To read prior posts about the Oracle v. Google case as it relates to juror research go here.

In the absence of complete agreement on a ban, the following procedure will be used. At the outset of jury selection, each side shall inform the venire of the specific extent to which  it (including jury consultants, clients, and other agents) will use Internet searches to investigate and to monitor jurors, including specifically searches on Facebook, LinkedIn, Twitter, and so on, including the extent to which they will log onto their own social media accounts to conduct searches and the extent to which they will perform ongoing searches while the trial is underway.

Counsel shall not explain away their searches on the ground that the other side will do it, so they have to do it too. Nor may counsel intimate to the venire that the Court has allowed such searches and thereby leave the false impression that the judge approves of the intrusion. Counsel may simply explain that they feel obliged to their clients to consider all information available to the public about candidates to serve as jurors. Otherwise, counsel must stick to disclosing the full extent to which they will conduct searches on jurors. By this disclosure, the venire will be informed that the trial teams will soon learn their names and places of residence and will soon discover and review their social media profiles and postings, depending on the social media privacy settings in place. The venire persons will then be given a few minutes to use their mobile devices to adjust their privacy settings, if they wish. The venire persons will also be given the normal admonition that they cannot do any research about the case, the parties, or the lawyers and that they cannot speak to anyone about the case, including by making any social media postings about it. Only the names and places of residence of those called forward to the box shall be provided to counsel (so the identities of venire persons still in the gallery will remain private)

Verifying a Juror's Past

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.

 The Tennessean: Few options to verify juror's past, attorneys say

Selective Juror Investigations

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.

Washington Post: Questions Arise Over Criminal Background Searches of Jurors in D.C. Superior Court

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.

To learn more about juror investigations go here.

Judge to Allow Background Checks in Bulger Trial

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.

WBUR: Bulger Judge Allows Juror Background Checks

Motion to Investigate Jurors

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.

To read the defense's entire argument go here. 

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.

 

Mistrial Declared After Victim's Family Investigates Juror

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.

Sandusky Judge Says Juror Information Not Discoverable

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."