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16.2 Conduct And Duty Of The Jury During Trial

     16.2.3 Duty Not To Converse With Other Persons

    16.2.3.1 Duty Not To Discuss Case With Other Jurors Prior To Deliberation
    16.2.3.2 Admonition Against Discussing The Case: Having Jurors Swear To Abide By The Admonition
    16.2.3.3 Duty Not To Converse With Nonjurors
    16.2.3.4 Duty Not To Converse With Attorneys, Parties Or Witnesses
    16.2.3.5 Duty Not To Discuss Emotional Outbursts By Witness Or Spectator

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    See NCJIC 16.2.1 [No Premature Formation Of Opinion].

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RATIONALE: Securing a promise from jurors under oath to refrain from discussing the case outside the courtroom emphasizes the gravity and strictness of the rule against such communication. This may be necessary to counter jurors’ natural human inclination to discuss such provocative matter with others.

POINTS AND AUTHORITIES: Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 2:28 [Charging The Jury-Keeping Jury Together] (West, 1999).

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.6; 7.5].

See 1st Circuit Pattern Jury Instructions - Criminal 1.01.

See also 1st Circuit Pattern Jury Instructions - Criminal 1.07.

See also 1st Circuit Pattern Jury Instructions - Criminal 3.01.

See also 6th Circuit Pattern Jury Instructions - Criminal 1.02.

See also 8th Circuit Model Jury Instructions - Criminal 1.08.

See also 8th Circuit Model Jury Instructions - Criminal 2.01.

See also 9th Circuit Model Jury Instructions - Criminal 1.1.

See also 9th Circuit Model Jury Instructions - Criminal 1.9.

SAMPLE INSTRUCTION:

[Admonition to be given to jury prior to extended recess]

Have jurors stand, raise their right hands and repeat after the judge,

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RATIONALE: Juror discussions of the case with outside parties may expose jurors to extrajudicial matters. Such discussions also constitute improper premature deliberation.

POINTS AND AUTHORITIES: Juror discussion of the case with other persons during trial is misconduct. (See e.g., U.S. v. Keating (9th Cir. 1998) 147 F3d 895, 901 [improper communication to one of the jurors of defendant’s prior state conviction].) Hence, instruction on this point may be appropriate. (See Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS (1988) Inst. No. 5 [Cautionary Instruction, First Recess]; see also Wharton’s Criminal Procedure (West, 13th ed. 1989) § 478, p. 86.)

FEDERALIZATION: To federalize this request, click here. [Constitutional  Macro 7.3; 7.5].

See 1st Circuit Pattern Jury Instructions - Criminal 1.01.

See also 1st Circuit Pattern Jury Instructions - Criminal 1.07.

See also 1st Circuit Pattern Jury Instructions - Criminal 3.01.

See also 6th Circuit Pattern Jury Instructions - Criminal 1.02.

See also 8th Circuit Model Jury Instructions - Criminal 1.08.

See also 8th Circuit Model Jury Instructions - Criminal 2.01.

See also 9th Circuit Model Jury Instructions - Criminal 1.1.

See also 9th Circuit Model Jury Instructions - Criminal 1.9.

    During the course of the trial you should not talk about the trial with anyone else -- not your family, not your friends, not the people you work with. The reason for this rule, as I am certain you will understand, is that your decision in this case must be made solely on the evidence presented at the trial.

[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 1 [Standard Preliminary Instruction Before Trial] ¶ 16, p. 4; ¶ 19 p. 5 (1988).]

    Until the trial is completed, you are not to discuss this case with anyone, including your fellow jurors. If anyone approaches you and tries to discuss the trial with you, please let me know about it immediately.

[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 5 [Cautionary Instruction, First Recess] (1988).]

    If anyone approaches you and tries to discuss the trial with you, you must inform the person that you are forbidden from discussing the case.  Afterwards, send me a note about the incident.

    Do not discuss the case outside the courtroom with anyone, and do not permit anyone to discuss it with you. Also, do not even begin to form or express any opinion, or to reach any conclusion about any issue in this case until you start to deliberate. 

    Do not discuss the case with anyone, including other jurors, and do not permit anyone to discuss the case or any of the evidence with you, until you begin your deliberations.

    You must disregard any statements made about the case by anyone outside the courtroom.   Do not speak with any person involved in the case about anything. If anyone tries to discuss the case with you or if you hear anyone talking about the case, you must refuse to participate in or listen to the discussion and inform me of the incident by written note. 

    You are not to discuss the case with anyone or permit anyone to discuss it with you. You simply are not to talk about the case until you retire to the juryroom to deliberate on your verdict.

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RATIONALE: Juror communication with witnesses or with partisans to the case may result in juror exposure to information or arguments which is not included in the trial record.

POINTS AND AUTHORITIES: See U.S. v. Brasco (2nd Cir. 1975) 516 F2d 816, 819 [prejudice is presumed if a juror converses with a witness, counsel or other partisan]; see also U.S. v. Betner (5th Cir. 1974) 489 F2d 116, 118-119; U.S. v. Janis (8th Cir. 1987) 831 F2d 773, 778 [defendant’s pretrial conversation with juror not sufficiently prejudicial to require mistrial]; McDonnell v. U.S. (8th Cir. 1972) 457 F2d 1049; U.S. v. Day (10th Cir. 1987) 830 F2d 1099, 1103-04 [juror conversation with juror converses with witness, counsel or other partisan is not prejudicial, if unrelated or only remotely related to case]; U.S. v. Williams (DC Cir. 1987) 822 F2d 1174, 1189 [trial courts may reject request for mistrial based on juror declarations that contact with partisan individual did not influence them]; U.S. v. Gaffney (M.D. Fla. 1987) 676 FSupp 1544, 1551; Buchanan v. State (IN 1976) 348 NE2d 70, 73-74 [communications between a witness and several jurors].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.3; 7.5].

See 1st Circuit Pattern Jury Instructions - Criminal 1.01.

See also 1st Circuit Pattern Jury Instructions - Criminal 1.07.

See also 1st Circuit Pattern Jury Instructions - Criminal 3.01.

See also 6th Circuit Pattern Jury Instructions - Criminal 1.02.

See also 8th Circuit Model Jury Instructions - Criminal 1.08.

See also 8th Circuit Model Jury Instructions - Criminal 2.01.

See also 9th Circuit Model Jury Instructions - Criminal 1.1.

See also 9th Circuit Model Jury Instructions - Criminal 1.9.

    During the course of the trial, you should not talk with any witness, or with the defendant, or with any of the lawyers in the case. Please don't talk with them about any subject at all. The reason for this rule, as I am certain you will understand, is that your decision in this case must be made solely on the evidence presented at the trial.

[Adapted from Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 1 [Standard Preliminary Instruction Before Trial] ¶ 16, p. 4; ¶ 19 p. 5 (1988).]

    You are admonished not to talk with any of the attorneys, witnesses or parties in the case. 

    You must not talk about anything with any person who is involved in the trial even about something that has nothing to do with the trial.

[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 5 [Cautionary Instruction, First Recess] (1988).]

    You must avoid any out of court discussion with the attorneys, parties or witnesses whatsoever, even to pass the time of day.  If you happen to overhear the attorneys, parties or witnesses discussing the case, do not listen and leave the area immediately.  If you actually heard anything relating to the case, regardless of how minor or limited, immediately inform me by a written note.

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