Wednesday, March 18, 2009

Juror Misconduct and Technology

This post is about the that effect technology is having on what is called juror misconduct. As I explain below, juror misconduct is the term that is used to refer to actions by jurors that are at least arguably inconsistent with their role in a criminal trial.

The U.S. Constitution and the Sixth Amendment to the U.S. Constitution create a right to trial by jury in criminal cases.

Article III of the Constitution says, in part, that the “Trial of all Crimes . . . shall be by Jury”. The Sixth Amendment says, also in part, that "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed."

The Seventh Amendment to the Constitution creates a right to jury trial in civil cases, but we’re only concerned with criminal cases.

The Sixth Amendment right to trial by an impartial jury not only means that the jurors are not supposed to be biased, i.e., not supposed to have a reason to lean either toward the prosecution or defense. It also means that they’re to play a very passive role in the trial.

As you’ve no doubt seen on TV and in movies (and maybe in real-life if you’ve ever sat in on a trial), the jurors sit and listen to what goes on until both sides have put on all of their evidence and each side has made its closing argument to the jurors. Before the closing argument, the trial judge will “instruct” the jury on the law; that is, the judge will summarize for the jury the basic law governing their functions (e.g., presumption that the defendant is innocent, prosecution must prove guilty beyond a reasonable doubt) and the specific law governing the crime(s) with which the defendant is charged.

So really what trial jurors do during trial is listen: They listen to the judge, they listen to the lawyers, they listen to the witnesses, and then they go off on their own (retire) to decide whether the prosecution has proven its case or not. Every once in a while, a juror or set of jurors will decide they should take a more active role in the case by, say, conducting their own investigation or experiments or using a dictionary to look up terms they think the judge didn’t define well enough.

The jurors may think they’re doing the right thing by trying to be as meticulous as possible, but in fact they’re violating the requirement that they be impartial. As I noted, the requirement of impartiality means that the jury ONLY decides the case on the basis of evidence that was introduced in court. As a Pennsylvania court explained,
[w]hen jurors conduct their own experiments . . ., the result is the introduction of facts that have not been subject to the rules of evidence or to cross-examination by either party. This is broadly defined as juror misconduct. However, when allegations of misconduct arise, it is the responsibility of the trial court to determine if the misconduct resulted in a reasonable possibility of prejudice.
Pratt v. St. Christopher’s Hospital, 581 Pa. 524, 866 A.2d 313 (Pennsylvania Supreme Court 2000). This was a civil case, but the same principle applies in criminal cases.

Technology has made juror misconduct a more common issue than it used to be. It used to be that to conduct their own investigations jurors had to go to the crime scene or to the library or otherwise take affirmative action in the real-world outside the courtroom. Now, though, they can use the Internet to look up information.

In a Massachusetts case, for example, the defendants were charged with trafficking in cocaine. Commonwealth v. Rodriguez, 63 Mass.App.Ct. 660, 828 N.E.2d 556 (Massachusetts Court of Appeals 2005). After the both sides had produced all their evidence and made their closing arguments, the judge instructed the jury on the law and they began deliberating. After a while the foreperson sent a note to the judge saying it looked like they were deadlocked; the judge told them to keep going, but after a while the foreperson sent out another note. The judge again told them to keep going.

After a while, the foreperson sent the judge a note that said, in part, “`“Your Honor, we have come up against a wall under Chapter 234, Section 26(b)’” of the Massachusetts statutes. Commonwealth v. Rodriguez, supra. That surprised the judge because she hadn't instructed the jurors on that statute; she therefore needed to find out what was going on. The judge told the prosecution and defense lawyers what had happened, and held a hearing on the issue. The judge asked the foreperson “how she had obtained that citation” to the statute. The foreperson said Juror 14 was responsible. The judge brought Juror 14 to the courtroom, asked what had happened and
the juror explained that he had found the citation to the statute when he went `looking on the [I]nternet to see what laws were about jurors and jury duty and how it deals with a hung jury possibly.’ The juror assured the judge he had found only that one statute. He further explained that he had brought it in with him that morning and the jurors `brought it up’ while they were in the jury room. The judge informed the juror that she did not want to know about deliberations and allowed the juror to return to the jury room, but told him not to discuss their conversation.
Commonwealth v. Rodriguez, supra. The defendants moved for a mistrial based on what Juror 14 had done, but the court denied the motion. The defense’s concern was probably that the statute Juror 14 found might have encouraged the jury to convict when it would otherwise not have done so.

The defendants raised the issue on appeal, claiming the trial court should have ordered a mistrial and given them a new chance for an impartial jury. The Massachusetts Court of Appeals agreed with them. It noted that the statute in question
addresses impaneling, sequestering,and discharging jurors and is therefore procedural in nature. As such, it bears no direct relationship to the evidence admitted at trial, to any of the live substantive issues, or to the elements of the offense with which the defendants were charged.

That being said, it was researched by one juror concerned about the deadlock, and its introduction into the deliberations signaled that the jury may have been trying to remove a dissenting juror. The jury's uninstructed consideration of the statute reinforces our conclusion that the verdicts cannot stand.
Commonwealth v. Rodriguez, supra. The Court of Appeals therefore reversed the convictions and set aside the verdicts.

On a less serious note, I’ve found a few cases involving claims of juror misconduct based on texting jurors. In People v. Fulgham, 2008 WL 4147562 (California Court of Appeals 2008), a defendant who was convicted of possessing a controlled substance appealed, arguing in part that his conviction should be reversed because one of the jurors “committed misconduct by text messaging through the trial . . . instead of listening to the testimony.”

Two days into Fulgham’s trial, a juror told the court’s bailiff that Juror 10 was text-messaging during the trial. The bailiff told the court and the next morning the judge brought Juror 10 into court and questioned her outside the presence of the other jurors:

`THE COURT: Ma‘am, . . . it's been brought to the Court's attention . . . that during the course of this trial . . . you had been texting messages on your cell phone?

JUROR [10]: Oh, yeah, I did text message one time. Are we not allowed to do that?

THE COURT: Ma‘am, you are required to pay attention to everything that goes on in here without any distraction of any kind.

JUROR [10]: Okay.

THE COURT: Further, I hope that you have not been texting any type of message in terms of what's been going on with this trial.

JUROR [10]: Oh, no, I haven't. I know that we're not supposed to talk about anything with anyone, so.

THE COURT: All right.
The judge asked the prosecutor and defense attorney if they wanted to question Juror 10, but both declined. On appeal, the Court of Appeals held that the defense attorney’s failure to question the juror “waived any claim of error in the trial court's investigation and decision to retain Juror No. 10.” People v. Fulgham, supra. The court also upheld the judge’s keeping Juror 10 on the jury because she told the “trial court she only sent a text message one time and that it was unrelated to the trial.” People v. Fulgham, supra.

These are simple juror-misconduct-involving-technology cases. Things were much more complicated in the very high profile case of U.S. v. Siegelman, 2007 WL 1821291 (U.S. District Court for the Middle District of Alabama 2007). After Siegelman was convicted, the defense filed a motion with the court asking it to conduct an investigation into the
authenticity of Exhibits 10, 11, 12, 13, and 15 and . . . 23, 24, and 26. As part of that investigation, Defendants would have this Court review data contained on the computer hard drives of computers used by the . . . . Siegelman requests this Court to order Juror 7 and Juror 40 to produce all hard drives, Blackberries, cell phones, or any other device capable of sending email or text messages that they used during the course of this trial. . . . [and] order Juror 7 and Juror 40 to disclose to the Court all internet service providers, email providers, and cell phone companies that provided email, text messaging or cell phone services to them during the trial.
U.S. v. Siegelman, supra. The federal judge denied the motion both because it said it had already conducted an extensive investigation into the jurors’ conduct in the case and because
[n]o court has ever held that a court's obligation to investigate extends that far. The Court does not believe the absence of such legal holdings has anything to do with the law having failed to develop as quickly as technology has evolved. The Court believes sound policy considerations are the reason that the law has not required such fishing expeditions. Such a holding would potentially destroy the jury system in this nation.
U.S. v. Siegelman, supra.


John G. Brenner said...

Good piece.

Jon said...

It would be more balanced to include discussion of original standards of due process. In the Founding Era legal argument was made in the presence of the jury, who was expected to review the decisions of the bench in arriving at a general verdict, and could do its own legal research. See Stettinius v. United States, 22 F. Cas. 1322 (1839); 5 Cranch C.C. 573.

Anonymous said...

Not a word about jury nullification? What about the theory that "the role of the jury is to see that justice is done" even though the government might disagree?