Juries

Allegations of Juror Misconduct in El Chapo Trial

According to a recent article in VICE, the jurors in the El Chapo trial allegedly followed the case in the media and shared their views with others about the trial.  If true, this is definitely juror misconduct.  However, it remains to be seen whether the misconduct, even if true, would be sufficient to overturn El Chapo's guilty verdict.  The standard to do so is very high.

I do believe that the use of anonymous juries, such as in the case of El Chapo, increases the likelihood of juror misconduct for two reasons.  First, it is harder for attorneys and the media to research/investigate jurors when they are anonymous.  Second, jurors are more likely to flaunt the rules when they know it will be difficult to monitor or follow their conduct.

Understand Your Jurors’ Online Reality

Dr. Ken Broda-Bahn has written an excellent review of a recent article I wrote (Social Media, the Internet, and Trial by Jury) about the current state of research on jurors and the Internet.  In his review, Dr. Broda-Bahn notes the challenges of determining the pervasiveness of online juror misconduct stating that estimates "need to be taken with a grain of salt because the same social desirability bias that limits the reliability of answers in voir dire also limits ability to collect data on this question of whether jurors are violating the rules."  To read his review in entirety go here.

Diluting Prejudice

Judge David John Harvey

 

Abstract

This paper is about the steps that may be taken to dilute but not totally eliminate the prejudicial effect of on-line material that relates to a defendant about to stand trial. It is posited upon the fact that jurors, despite strong judicial directions, will go on-line to seek out information relevant to the case that they are trying. The solution lies in the use of what could be described as “take-down” orders whereby material is removed from websites during the course of the trial to eliminate or dilute any prejudice that may otherwise arise, along with de-indexing the reference in search engines. The remedy of a “take-down” order restores the qualities of practical and partial obscurity of prejudicial information that was a characteristic of the pre-Digital Paradigm. The paper also discusses the issue of juror contempt in light of proposed changes to the law in the Administration of Justice (Reform of Contempt) Bill.

Juror Falls for Witness

The NY Daily News has an interesting story about a romance in the courtroom involving a cooperating witness and a juror.  It remains to be seen whether or not this short-lived love affair will be enough to overturn the defendant's conviction of conspiracy, attempted murder, assault, and weapons possession.

nydailynews.com: Juror's courtroom romance with cooperating witness threatened gang member's 2017 conviction

Verdict Upheld Despite Sleepy Juror

In State v. Khalid Mohammed, the New Jersey Supreme Court upheld the criminal conviction of a defendant despite the fact that a juror apparently dozed during the pre-trial instructions, which apparently were inconsequential. While this case does not break any new ground, it does provide lower courts some guidance, excerpted below, on what to do when they come across an inattentive juror.

When it is alleged that a juror was inattentive during a consequential part of the trial, if the trial court concludes, based upon personal observations explained adequately on the record, that the juror was alert, the inquiry ends. If the judge did not observe the juror’s attentiveness, the judge must conduct individual voir dire of the juror; if that voir dire leads to any conclusion other than that the juror was attentive and alert, the judge must take appropriate corrective action.

To read the opinion in full go here.

Juror Research Leads to Mistrial and Community Service

A juror in New Jersey has to complete 20 hours of Community Service because she conducted online research and then shared her findings with other jurors.  The judge in the case also declared a mistrial based on the juror's actions.  While 20 hours of community service seems like a light penalty, judges are in a difficult spot in these situations because our system will not work if people fail to report to jury duty.  According to the judge handling this case, "I must weigh the need to deter this behavior...against the justice system’s desire to encourage citizens to serve on juries."

To read more about juror online research go here.

Juror's Cyber Misconduct Leads to 8-Day Jail Sentence

Sun-Sentinel: Ex-juror facing misconduct allegations to try to avoid jail sentence at Thursday's hearing

CA Jurors who Use the Internet May Face Fines up to $1,500

ABC News: California Jurors Misusing the Internet Could Face Fines

 

Criminalization of Juror Misconduct Arising from Social Media Use

Matthew Aglialoro

Criminalization of Juror Misconduct Arising from Social Media Use

This Essay analyzes criminalization as an alternative solution to juror misconduct arising from social media use, where jury instructions fail to prevent such misconduct. Despite the lack of scholarship on the subject, criminalization is far from a radical solution California enacted legislation in 2011that sought to criminalize jurors’ improper use of social media. By criminalizing juror misconduct, states can deter misconduct from occurring while also instilling the importance of the jury institution in the public. At the same time, it is important to be cognizant of objections that judges and jurors may raise. This Essay proceeds in three parts. Part I outlines persistent problems that arise from the use of social media as well as several deficiencies of jury instructions. Part II lays out California’s legislative approach, where juror misconduct arising from social media use may be punished as a misdemeanor. Finally, Part III analyzes benefits that arise from criminalization as well as several anticipated objections to the approach.

Preventing Juror Misconduct in the Digital Age: A New Proposal

For the past few years, I have come across numerous reform measures to address the issue of jurors violating the judge’s instructions on using the Internet. The solutions put forth run the gamut from penalizing and investigating jurors to allowing questions by jurors.  It is rare for me to come across any new proposals. However, I recently did in an article by Joel Cohen entitled Helping Juries to Better Reach Untainted Verdicts. In that article, Cohen, a criminal defense attorney, suggests requiring jurors “to be sworn and briefly asked a few questions each day…[to get] jurors - to more effectively appreciate the oath taken by trial witnesses.”   According to Cohen,

“a personalized question and answer session under oath might well have an impact on jurors; perhaps when a juror knows form the outset that every day of the trial he or she will have a mirror held up to them, the path of least resistance will likely be to, in fact, adhere to the obligations of good citizenship that the daily oath demands."

While I am not sure about the practicality of Cohen’s proposal, I am glad to see that people are still trying to address the challenges of getting jurors to adhere to the court’s instructions on use and misuse of the Internet.