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3.4 Duty To Inquire Into Juror Misconduct

    3.4.1 Duty To Inquire Into Juror Misconduct: General Principles
    3.4.2 Trial Publicity: Judge Has Duty To Inquire When Media Coverage Includes Information Not Presented At Trial
    3.4.3 Duty To Inquire: Threatening Or Harassing Phone Call Received By Juror
    3.4.4 Duty To Inquire: Jury Tampering
    3.4.5 Conduct Of Judicial Inquiry
    3.4.6 Consideration Of Juror Declarations Or Affidavits
    3.4.7 Jury Misconduct: Standard Of Prejudice

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PRACTICE NOTE: When external events such as pretrial publicity raise a possibility of jury bias, the court has a duty to inquire. (See Wells v. Murray (4th Cir. 1987) 831 F2d 468, 472; see also Yannacopoulos v. General Dynamics Corp. (8th Cir. 1996) 75 F3d 1298, 1304 [repeated corrective admonitions satisfied trial court’s duty to respond to jury’s alleged misuse of dictionary]; U.S. v. Martinez (11th Cir. 1994) 14 F3d 543, 551 [juror discussion of defendant’s prior conviction not introduced at trial constituted extraneous prejudicial information, requiring remand and evidentiary hearing].)

    Jurors may be interrogated post verdict, as to whether errors or misconduct influenced their decision. (American Bar Association, ABA Standards for Criminal Justice Discovery and Trial by Jury (ABA, 3rd ed., 1996) § 4-7.3) ["...[A] judge investigating juror bias must find facts, not make assumptions...."]; see also  (Dyer v. Calderon (9th Cir. 1998) 151 F3d 970, 976) [trial court must investigate whether juror’s reported communication with court functionary was prejudicial]; Turner v. Murray (1986) 476 US 28, 33 [106 SCt 1683; 90 LEd2d 27] ["constitutionally significant likelihood" of jury bias warrants trial court inquiry]; Sheppard v. Maxwell (1966) 384 US 333, 363 [86 SCt 1507; 16 LEd2d 600] ["reasonable likelihood" of jury bias, because of televised confession and other media exposure, warranted trial court inquiry]; U.S. v. Brasco (2nd Cir. 1975) 516 F2d 816, 819 [where conduct alleged which carries presumption of prejudice, issue is for trial judge if juror denies misconduct]; U.S. v. Betner (5th Cir. 1974) 489 F2d 116, 118-19 [hearing or inquisition may refute presumed prejudice from juror conversation with witness, counsel or other partisan]; Jordan v. Lippman (11th Cir. 1985) 763 F2d 1265, 1267 ["significant possibility" of jury bias warrants trial court inquiry]; U.S. v. Gaffney (MD Fla. 1987) 676 FSupp 1544, 1551 [trial court must examine extraneous material to which jurors were improperly exposed].)

    "A trial court must be especially vigilant in investigating the specter of racial prejudice in the judicial process. Failure to scrupulously explore such allegations would seem to enhance the risk of a conviction based on race. Such a risk cannot be tolerated." (State v. Santiago (CT 1998) 715 A2d 1, 20.)

    Any investigation into juror misconduct "should be complete enough to determine 'good cause.'" (People v. McNeal (CA 1979) 90 CA3d 830, 837; see also  People v. Keenan (CA 1988) 46 C3d 478, 532 [250 CR 550].) Indeed, failure to conduct an inquiry sufficient to the occasion may be an abuse of discretion. (Keenan, 46 C3d at 532;  People v. Burgener (CA 1986) 41 C3d 505, 518-19 [224 CR 112.) "Once a court is put on notice of the possibility that improper or external influences are being brought to bear on a juror, it is the court’s duty to make whatever inquiry is reasonably necessary to determine if the juror should be discharged and whether the impartiality of other jurors has been affected." (McNeal, 90 CA3d at 839; see also generally People v. Cleveland (CA 2001) 25 C4th 466, 477-78 [106 CR2d 313] [trial court has duty to inquire if put on notice that juror may not be able to perform his or her duty].)

    See NCJIC 16.7 [Court’s Duty To Inquire Into Juror Misconduct].

See A Manual On Jury Trial Procedures [5.2C. Communications With A Deliberating Jury: Investigation Of Alleged Jury Misconduct].

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PRACTICE NOTE: "[W]idespread publicity about highly dramatic events [can] render prospective jurors incapable of impartial consideration of the evidence. [It follows] that where pretrial publicity is of a character and extent to raise a real probability that veniremen have heard and formed opinions about the events relevant to a case, and at least where, as here, the defense has brought the pretrial publicity to the court's attention and requested voir dire inquiry, the court must make inquiry adequate to determine whether anyone has read or heard about the facts, and, if so, what the impact has been on his ability to serve as an impartial juror." (U.S. v. Dellinger (7th Cir. 1972) 472 F2d 340, 374.)

    Media coverage of a trial which includes potentially prejudicial material not admitted into the trial evidence, poses a danger of juror exposure to extraneous and prejudicial matters. (See NCJIC 16.11.2 [Media Coverage Of Jurors In Courtroom: Potential Prejudice].) "[W]hen pretrial publicity is great, the trial judge must exercise correspondingly great care in all aspects of the case relating to publicity which might tend to defeat or impair the rights of an accused. The judge must insure that the voir dire examination of the jurors affords a fair determination that no prejudice has been fostered. . . . He must determine whether 'the nature and strength of the opinion formed [if any] are such as in law necessarily raise the presumption of partiality."' (Silverthorne v. U.S. (9th Cir. 1968) 400 F2d 627, 637-38; accord Reynolds v. U.S. (1878) 98 US 145 [25 LEd 244].) For example, if jurors are generally allowed to read newspapers but told not to read about the trial, a critical article prominently located on the front page of a newspaper, containing substantial detail outside the record evidence requires the trial judge to undertake an independent determination as to whether the article affected jury impartiality. (U.S. v. Aragon (5th Cir. 1992) 962 F2d 439, 444-47.)

    "When [potentially prejudicial] publicity is brought to the court’s attention, the judge must first determine whether the information is in fact prejudicial. If a trial court finds that publicity which is brought to its attention is 'genuinely prejudicial,' the court is required, upon timely request of counsel to conduct a two-step examination of the jurors to determine whether any jurors have heard or read the publicity in question, and, if so, the effect of the publicity upon the affected jurors." (U.S. v. Porcaro (1st Cir. 1981) 648 F2d 753, 757; see also U.S. v. Lewin (7th Cir. 1972) 467 F2d 1132, 1139 [trial court has duty to inquire into prejudicial impact of pretrial publicity where such prejudice is objectively possible]; Harper v. People (CO 1991) 817 P2d 77, 86-87 [reversible error to refuse defendant’s request to poll jury to determine whether they had read article published during trial containing information which was excluded from evidence].)

See A Manual On Jury Trial Procedures [5.2C. Communications With A Deliberating Jury: Investigation Of Alleged Jury Misconduct].

SAMPLE INQUIRY:

[Initial query, to be followed up if any jurors affirmatively respond]

    If, as the result of newspaper reports, radio or television broadcasts, or conversations with others, you formed any opinion or expressed any opinion whatsoever regarding the guilt or innocence of the defendant, you should so indicate.

[Source: U.S. v. Dellinger (7th Cir. 1972) 472 F2d 340, 375.]

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PRACTICE NOTE: When the jury has received a harassing or intimidating phone call there is a duty to inquire. (See e.g. U.S. v. Spinella (5th Cir. 1975) 506 F2d 426, 427-28 [where jurors received harassing phone calls, trial court had duty to inquire into character of potentially prejudicial material to which the jury had been exposed, and its effect upon the jury's ability to render an impartial verdict"]; U.S. v. Hall (8th Cir. 1996) 85 F3d 367, 371-72; U.S. v. Jackson (9th Cir. 2000) 209 F3d 1103, 1109-10 [anonymous threat to juror during deliberations requires evidentiary hearing to determine if juror believed defendant was behind threat].)

See A Manual On Jury Trial Procedures [5.2C. Communications With A Deliberating Jury: Investigation Of Alleged Jury Misconduct].

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PRACTICE NOTE: It has been recognized that jury tampering "cuts to the heart of the 6th Amendment's promise of a fair trial, [and] we treat jury tampering cases very differently from other cases of jury misconduct." (United States v. Dutkel (9th Cir. 1999) 192 F3d 893, 894.) "Once tampering is established, we presume prejudice and put a heavy burden on the government to rebut the presumption." (Id. [quoting and following Remmer v. U.S. (1954) 347 US 227, 229 [74 SCt 450, 98 LEd 654]; see also U.S. v. Angulo (9th Cir. 1993) 4 F3d 843, 846.)

    Hence, when there is evidence of tampering the court must conduct "a hearing, in which the trial court determines the circumstances of what transpired, the impact on the jurors, and whether or not it was prejudicial." (Angulo, 4 F3d at 847 (emphasis omitted); Smith v. Phillips (1982) 455 US 209, 215 [102 SCt 940; 71 LEd2d 78]; see also Dutkel, 192 F3d at 894-95; U.S. v. Jackson (9th Cir. 2000) 209 F3d 1103, 1109-10.)

See A Manual On Jury Trial Procedures [5.2C. Communications With A Deliberating Jury: Investigation Of Alleged Jury Misconduct].

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PRACTICE NOTE: When presented with allegations of jury misconduct in a criminal case, the trial court should conduct at least a preliminary inquiry regardless of whether any such inquiry is requested. (State v. Brown (CT 1995) 668 A2d 1288, 1302-03.) For example, when a trial court discovers a juror consulted or quoted a dictionary during deliberations, it "should determine whether the jury actually used the dictionary definition to reach their verdict." (U.S. v. Gillespie (6th Cir. 1995) 61 F3d 457, 460; see also U.S. v. Davis (5th Cir. 1978) 583 F2d 190, 197; Calley v. Callaway (5th Cir. 1975) 519 F2d 184, 208-09 [trial court's voir dire examination regarding prejudicial impact of news media laudably conformed to ABA Standards].)

    Thereafter, additional inquiry may be required depending on the seriousness and credibility of the allegations of misconduct. (State v. Brown (CT 1995) 668 A2d 1288, 1302-03; Silverthorne v. U.S. (9th Cir. 1968) 400 F2d 627, 638 [trial court must inquire regarding nature or content of publicity to which jurors admit exposure, sufficiently to permit objective assessment impact on jurors’ impartiality].) The trial court has discretion to set procedures for investigation of alleged misconduct. (See U.S. v. Parker (5th Cir. 1977) 549 F2d 998, 1000; U.S. v. Dellinger (7th Cir. 1972) 472 F2d 340, 375 [error to limit inquiry to general query whether any reason existed why jurors might not be impartial, where case had local and worldwide notoriety and media exposure]; U.S. v. Cook (7th Cir. 1970) 432 F2d 1093, 1105.)

    In this regard, the trial court may query jurors regarding whether and to what extent extraneous influences before or during deliberations impacted their decision. (See Mattox v. U.S. (1892) 146 US 140, 149 [13 SCt 50; 36 LEd2d 917]; U.S. v. Howard (5th Cir. 1975) 506 F2d 865, 868 [juror may testify regarding defendant’s claim that juror told other jurors that defendant had prior criminal record]; Texas and New Orleans Railroad Co. v. Underhill (5th Cir 1956) 234 F2d 620, 624; Dellinger, 472 F2d at 374-76; Butler v. U.S. (8th Cir. 1963) 317 F2d 249, 262; Southern Pacific Co. v. Haight (9th Cir.) 126 F2d 900, 909-10; Urseth v. Dayton (S.D. Ohio 1987) 680 FSupp 1084, 1089-90 [evidence concerning receipt of extraneous information or of perjury during voir dire is admissible to impeach verdict].)

    See also NCJIC 3.4 [Duty To Inquire Into Juror Misconduct].

NOTE: Because of the danger that other jurors could be infected by a premature decision by other jurors, a procedure for individual, sequestered inquiry into the juror's state of mind would be preferable. Should the court not allow such a procedure, consideration will have to be given as to whether to request a general cautionary instruction to the other jurors. (See NCJIC 16.1.6 [Situations Where Cautionary Or Limiting Instructions May Not Cure Prejudice].)

See A Manual On Jury Trial Procedures [5.2C. Communications With A Deliberating Jury: Investigation Of Alleged Jury Misconduct].

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    3.4.6    Consideration Of Juror Declarations Or Affidavits

PRACTICE NOTE: "[A] jury should not begin discussing a case, nor deciding the issues, until all of the evidence, the argument of counsel, and the charge of the law is completed.... The reason for the rule is apparent. The human mind is constituted such that when a juror declares himself, touching any controversy, he is apt to stand by his utterances to the other jurors in defiance of evidence. A fair trial is more likely if each juror keeps his own counsel until the appropriate time for deliberation." (State v. McGuire (SC 1979) 253 SE2d 103; see also State v. Aldret (SC 1999) 509 SE2d 811, 813; see also United States v. Resko (3rd Cir. 1993) 3 F3d 684, 689 [prohibition against premature deliberations protects defendant's right to a fair trial as well as his or her due process right to place burden on the government to prove its case].)

    Hence, the trial court should be permitted to consider juror affidavits alleging premature deliberations if necessary to ensure fundamental fairness.  (Aldret, 509 SE2d at 813; see also NCJIC 288.2 [Juror Statements Regarding Failure To Follow Instructions Should Not Be Excluded Under Domestic Rules Of Evidence]; NCJIC 288.4 [Defendant Should Be Permitted To Prove Juror Agreement To Disregard An Instruction].)

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    See NCJIC 297.2.26 [Jury Misconduct: Standard Of Prejudice].