Juror in the United States
Juror Definition
(Lat. juro, to swear). A man who is sworn or affirmed to serve on a jury. (This definition of Juror is based on The Cyclopedic Law Dictionary). See Juror in the Dictionaries.
Jurors Responsabilities
By Noelle C. Nelson. She is a trial consultant based in Los Angeles, providing jury strategy, witness preparation, and focus groups for attorneys.
When jurors perform their own experiments to figure out what the evidence means, it’s a sign the trial attorneys have failed to communicate what happens.
It should not come as a surprise that jurors, left to their own devices, sometimes conduct their own case investigation – even though such conduct is expressly forbidden by instructions read to jurors both before and after evidence is presented at trial, in California for example (See CACI Nos. 100, 5000.) For example, a juror in one case went home and used a broomstick to determine how difficult it would be for a passenger in a car to raise a rifle and fire out an open window. (People v. Vigil, 191 Cal. App. 4th 1474 (2011).) In another matter, a juror bought toy cars during a lunch break in deliberations, and used them to reenact the accident in question. (People v. Cook, 154 Cal. Rptr. 3d 306 (2013) (rehearing granted).)
Juror experiments often result in a mistrial or a lengthy appeal (which may itself be followed by a burdensome retrial of the substantive issues). But these efforts by jurors also indicate that lawyers are not doing their job in the courtroom – delivering a clear, complete presentation that won’t leave jurors scratching their heads.
Provide the Basics
A straightforward way to ensure that jurors get the information they need is to address the who, what, when, where, why, and how of every key issue or piece of evidence, and to do so with visual representations. Visuals do not need to be expensive. (As the Cook case cited above demonstrates, a few toy cars would have done the trick.)
Of course, trial attorneys cannot know all the questions jurors may come up with. But they can anticipate potential questions by using tools such as a jury focus group. By assembling a panel of individuals who are demographically similar to residents in the case venue, attorneys can learn what the eventual “real” jurors may want to know about the case. Then, the attorneys can take steps to provide that information during trial.
Focus Your Focus Group
The best way to gain insight into a focus group’s thinking is to develop questions for the panel and then ask them in a way that elicits opinions and encourages discussion.
Open-ended questions are best to elicit opinions. For example, “What do you think the truck driver could have done differently in this situation?” yields a variety of responses, all potentially insightful. In contrast, a close-ended inquiry such as “Did the truck driver follow the rules of the road?” will yield too many “yes” and “no” answers, which are not nearly as helpful.
It is a mistake to just put focus group members in a room, tell them to elect a foreperson, and then listen to the discussion. Counsel will only hear from the strongest voices, and those voices may not reflect who will be influential at the time of real deliberation. A facilitator, well versed in the case, should actively solicit useful feedback from each and every focus group member.
Don’t Delay
Lawyers should run focus groups well before the discovery cut-off. Nothing is more frustrating than finding out that focus group members are interested in an issue, only to realize that it’s too late to conduct further discovery.
If the case warrants it, consider running your presentation past a second focus group after you’ve reworked it based on feedback from the first mock panel. The second group’s responses will confirm that potential juror questions have been addressed – and may also reveal other areas that require more work.
Every trial tells a story. But when trial lawyers leave out crucial details or are unclear in their storytelling, jurors will fill in the blanks on their own – perhaps to your client’s detriment. Anticipate what jurors will want to know, and then do your best to present that information in a way they will understand.
Trial Juror Information
Warnings from the bench apparently can’t stop jurors from blogging, texting, and tweeting during trial. Is social networking by jurors just annoying, or grounds for mistrial?
We can see how difficult it has become for judges to control the flow of information in their courtrooms.
It’s a serious concern. After all, with a few taps on an iPhone screen, jurors these days can instantaneously send and receive dozens, if not hundreds, of prejudicial comments. Some observers do not view the systemwide demise of due process as either imminent or inevitable. (see below)
Juror Misconduct and Social Media
By Pamela A. MacLean. She is a freelance writer based in the Bay Area (California). She has reported on state and federal courts for more than 25 years.
Jurors´ Internet postings are no longer unusual. Prospective jurors who’ve grown accustomed to social networking on smartphones seem unimpressed by admonitions to avoid blogging, texting, and posting on Twitter.com in court and during deliberations. Incidents of willful disobedience–if not juror misconduct–seem to increase by the day. Consider:
— A judge in Michigan fined a juror $250 last fall, and ordered her to write an essay on the Sixth Amendment, for posting a comment on her Facebook page-before the defense had presented its case-that she thought the defendant was guilty.
— Five jurors in the corruption trial of former Baltimore Mayor Sheila Dixon last year “friended” one another on Facebook and continued to post comments about their jury service, even after being told not to by the judge.
— A juror in West Virginia failed to disclose during voir dire that she knew the defendant and had contacted him on MySpace after receiving her jury summons. Her lengthy message included, “God has a plan for you and your life.”
The state Supreme Court overturned the defendant’s fraud conviction, becoming one of the first courts in the nation to base its juror-misconduct ruling on a person’s messages to a “friend” on a social networking site (State v. Dellinger, 225 W. Va. 736 (2010)).
Reuters Legal has reported that jurors’ Internet research, blog comments, and tweets have called into question at least 90 verdicts since 1999. Using data supplied by Westlaw, it found that judges had granted new trials or overturned verdicts in 28 such criminal and civil cases, 21 in the past two years.
As part of its investigation, Reuters monitored postings on Twitter for a three-week period, typing “jury duty” into the site’s search engine. Many of the tweets turned up were from people expressing snap decisions on a defendant’s guilt or innocence. “Jury duty is a blow,” one tweet read. “I’ve already made up my mind. He’s guilty.” Another tweet from a prospective juror read, “Guilty! He’s guilty! I can tell!”
A Reuters reporter actually tracked down that juror, using his Twitter identity. He had been selected from a jury pool in Los Angeles Superior Court, and he told the reporter that the defendant in the case was convicted. Reuters forwarded those tweets to the superior court, which responded through a spokesperson that the tweets were acceptable because they were made in the jury assembly room and before the juror was chosen for duty.
The problem–for judges, defense counsel, and ultimately the taxpayers who foot the bill for retrials–is how to protect a defendant’s Sixth Amendment right to a fair trial when jurors are awash in social media, potentially contaminating the integrity of the proceedings.
Trial judges, who have considerable discretion to investigate alleged misconduct, are doing their best to prevent bad behavior. Reuters Legal found that in the 18 months preceding its December report, the federal courts and at least eight state courts had rewritten civil and criminal jury instructions to bar jurors from tweeting, sending text messages, blogging, emailing, or researching trial proceedings online.
In California, preliminary admonitions to jurors couldn’t be more sweeping: They prohibit the use of any electronic device or medium, any Internet service, any text or instant-messaging service, and any Internet chat room, blog, or website to exchange any information about the case until the panel is discharged (CACI No. 100).
In August 2010 the Ninth U.S. Circuit Court of Appeals revised its model jury instructions to account for Internet and other technologies. They read, in part, “Do not communicate with anyone in any way and do not let anyone else communicate with you in any way about the merits of the case or anything to do with it. This includes discussing the case in person, in writing, by phone or electronic means, via e-mail, text messaging, or any Internet chat room, blog, Web site or other feature.” (Ninth Circuit Model Crim. Jury Instr. 1.8.)
That all seems pretty clear–and for the most part, admonitions have been effective. But when some jurors disregard the rules and blog, post, or tweet anyway, how are the defendant’s rights affected? “Google mistrials” was the subject of a recent law review article by Loyola Law School Los Angeles student Amanda McGee (“Juror Misconduct in the Twenty-First Century: The Prevalence of the Internet and Its Effect on American Courtrooms,” 30 Loy. L.A. Ent. L. Rev. 301 (2010)).
“At any given moment, jurors now have the ability to use their cellular telephones to browse the web for the names of attorneys or parties in a case, educate themselves through Wikipedia.org about the technology underlying a patent claim or medical condition, examine an intersection using Google Maps, or even blog and update their friends about a case through Facebook and Twitter,” McGee writes.
After a verdict has been rendered, she notes, the party attacking the verdict bears the initial burden of showing that extrinsic communications by a juror occurred. Any private contact during trial about the matter under consideration is presumed to be prejudicial (Remmer v. United States, 347 U.S. 227 (1954)). But that presumption is not conclusive: “[T]he burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless.” (Remmer, 347 U.S. at 229.)
Courts, however, are loath to find external communications prejudicial if they lack substantive content. And jurors’ tasteless criticism about boring testimony or incompetent lawyers may not rise to that level.
“Of course the technology is a new animal, but the issues are the same,” says Elizabeth M. Roth, a Sacramento attorney currently representing a juror in a misconduct case. If a juror, overheard in an elevator, talks about a case, she says, that may be misconduct. “Is that different from a blog post?” she asks. “It’s really the same issue.”
Short of confiscating all electronic devices in the courtroom lobby, then, what is to be done?
“I think in terms of trying to restrict access to social networks, you will never get everyone to follow the rules,” says Michelle Sherman, special counsel in the Los Angeles office of Sheppard Mullin Richter & Hampton who advises companies on social media policy. The smarter strategy, she says, is to determine which potential jurors are using new technologies before they get on panels.
“Along with admonitions, judges and attorneys can ask basic questions of potential jurors–if they are using social media, Twitter, or blogs,” Sherman says. “There is no reason a judge can’t ask their Twitter name. And they can impress on jurors [that] their activity will be monitored.”
Still, the predicted avalanche of retrials stemming from such jury misconduct may be overblown, Sherman says. “I believe this is more a case of Chicken Little, ‘The sky is falling.’ ”
Meanwhile, trial lawyers are doing everything they can to protect against juror misconduct. Leslie Ellis, a jury consultant with TrialGraphix in Washington, D.C., says she advises her clients to monitor jurors’ Facebook, MySpace, or Twitter accounts and blogs during a trial to make sure none are discussing the case outside court sessions. “That’s how a lot of jurors have been caught,” she says.
But there are limits. Lawyers on Facebook should not be falsely “friending” potential jurors, friends of jurors, or adverse witnesses just to get a look at posts walled off by privacy settings, Sherman warns. Nor should they let anyone who works for them do so. An ethics committee in Pennsylvania recently said as much (Phila. Bar Assoc., Prof. Guidance Comm., Opinion 2009-02 (Mar. 2009)).
Of course, online profiling is a two-way mirror. “We’re being Googled within an inch of our lives–by jurors,” says Nanci Clarence, a criminal and white-collar defense attorney at San Francisco’s Clarence Dyer & Cohen. “That means whatever the last notorious criminal a lawyer has represented, it’s … potentially within [jurors’] reach” to find out, she says. “I have two active post-conviction death penalty cases now. The danger is that jurors are going to make improper, externally determined decisions.”
Clearly, the courts are in a quandary. Demands for transparency could lead to more pretrial rummaging through jurors’ online lives, and more post-verdict motions for retrial. But too heavy a hand–findings of juror contempt, stiff fines, and even jail time–could further discourage people from even showing up for jury duty.
Another possible alternative, raised in a case that may soon be taken up by the California Supreme Court, involves making all private social media communications posted by a juror during trial available to defense counsel. The issue arose last June in Sacramento Superior Court during the trial of five Killa Mobb gang members accused of a vicious beating. During the prosecution’s presentation of cell phone records, the jury foreman used his mobile phone to post the Facebook note, “can it get any more BORING?”
The foreman thought his rant was innocuous. But shortly after the jury convicted all five of the accused, another juror reported to defense counsel that she had become a “friend” of the foreman on Facebook, and that he had mentioned the case online during trial. In addition, the defense attorneys obtained five pages of posts from the jury foreman’s Facebook account. They asked Judge Michael P. Kenny to question several of the jurors, including the foreman, identified as Juror No. 1.
“The judge determined the juror was truthful, and that his postings were not prejudicial,” says Kenneth L. Rosenfeld, a Sacramento criminal defense attorney appointed by the court to represent Juror No.1. Rosenfeld says the judge questioned his client under oath, without an attorney, and the juror was also cross-examined by the defense. “After that was done, it should be over,” he says.
But the defense attorneys weren’t satisfied. They issued a civil subpoena to Facebook for complete records of the jury foreman’s account during seven months in 2010. The subpoena was accompanied by Judge Kenny’s order compelling Facebook to release the records or appear at the next hearing. Facebook moved to quash the subpoena, citing the Stored Communications Act (18 U.S.C. § 2701 – 2712) and the Electronic Communications Privacy Act (18 U.S.C. §§ 2510 – 2522).
“Under [the SCA] the provider is not obligated and not allowed to release the records without the account holder’s consent or a subpoena from law enforcement,” says Michael Wise, a sole practitioner in Sacramento who represents one of the defendants. “The law provides no avenue for defendants to assert a Sixth Amendment defense, which our circumstances demanded. This has set the grounds for a constitutional showdown.”
To avoid becoming entangled in the litigation, Facebook provided the requested postings to Rosenfeld. Defense counsel then issued a civil subpoena for the records to Juror No. 1, which Rosenfeld successfully moved to quash. But on February 4, Judge Kenny upped the ante, ordering Juror No. 1 to sign a consent form to permit the release and search of his Facebook postings or be found in contempt.
Rosenfeld immediately sought a writ of prohibition from the Third District Court of Appeal, which was denied (Juror Number One v. Superior Court, No. 6037309 (Cal. Ct. App., 3rd Dist.)). His client then sued in federal court to obtain an injunction based on privacy grounds, but the court declined without prejudice to intervene in a state criminal case (Juror Number One v. California, No. 11-397 (E.D. Cal. TRO denied Feb. 14, 2011)).
That same day, the California Supreme Court stayed surrender of the juror’s Facebook records until it could examine the issue. It requested briefing that may address the conflict between juror privacy and the defendants’ Sixth Amendment right to a fair trial (Juror Number One v. Superior Court (Royster), No. S190544 petition for review filed, and stay issued Feb. 14, 2011)).
Rosenfeld believes that Judge Kenny’s order goes too far–and that in the long run a policy of threatening jurors with contempt won’t work. “This is an invasion of privacy that compromises the entire justice system,” he says. “It’s not innocuous protection of a defendant’s rights. Ask any juror if they want the Killa Mobb gang, or the Aryan Brotherhood, or the Mexican Mafia, to have their online family pictures after they return a guilty verdict.”
On the other hand, an order to sign a consent form permitting release of those pictures might silence a few smartphones in the jury box.
“Judges can’t hope to hold back the tide simply by ordering jurors not to use their cell phones. The world,” she allows, “is just too porous for that to do any good.” But she adds, “Most people who serve on juries want to do the right thing. And so if judges can clearly explain to people why it’s important for them to turn off their cell phones and refrain from tweeting their friends, they are likely to get buy-in.”
Juror in Foreign Legal Encyclopedias
| Link | Description |
|---|---|
| Juror | Juror in the World Legal Encyclopedia. |
| Juror | Juror in the European Legal Encyclopedia. |
| Juror | Juror in the Asian Legal Encyclopedia. |
| Juror | Juror in the UK Legal Encyclopedia. |
| Juror | Juror in the Australian Legal Encyclopedia. |
Resources
See Also
- Jury Selection
- Selection of a Jury
- Withdrawing A Juror
- Differences between a Grand jury and a Trial jury
- Jury Function
- Mary Carter Agreement
- Jury Charge
- Function of a Jury
- Charge To The Jury
- Expedited Jury Trials
- Trial Publicity
- Directed Verdict
- Jury History
Leave a Reply