Chapter 16

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16.4 Juror Exposure To And Consideration Of Extrinsic Evidence And Materials

    16.4.1 Jury Not To Read Internet, E-mail, On-line Discussion Groups Or Other Computer- Based Sources Of Media Reports About The Trial
    16.4.2 Jury Not To Consider Or Be Influenced By Public Opinion, Etc.
    16.4.3 Jurors Should Be Admonished To Refrain From Using Jury Booklets During Trial
    16.4.4 Providing Jurors With Trial Notebooks
    16.4.5 Jury Use Of Materials Not Received In Evidence But Which May Be Helpful In Managing The Evidence
    16.4.6 Materials In Juryroom: Sanitizing Juryroom And Reviewing Materials Before Sending Them To Jury
    16.4.7 Jury Consideration Of Extraneous Evidence
    16.4.8 Source And Means Of Juror Exposure To Extrinsic Evidence

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16.4.1 Jury Not To Read Internet, E-Mail, On-line Discussion Groups Or Other Computer-Based Sources Of Media Reports About The Trial

RATIONALE: Jurors may access media reports or other information concerning the trial while using the Internet or other electronically based source.

POINTS AND AUTHORITIES: Most standard instructions inform the jury not to read news stories or articles about the case or listen to any radio or television reports about the case. These instructions should also include a prohibition against reading about the case on the Internet, or any other electronic source or media from which information about the case may be obtained.

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

RESEARCH NOTES:

See also A Manual On Jury Trial Procedures [3.14A. Juror Exposure To Extrinsic Influences: In General].

See also A Manual On Jury Trial Procedures [3.14B. Juror Exposure To Extrinsic Influences: Evidentiary Hearing].

See also A Manual On Jury Trial Procedures [3.14C. Juror Exposure To Extrinsic Influences: Types Of Extraneous Influences].

See also generally, NCJIC 305.10.2 [Juror Exposure To Extrinsic Matters].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 8th Circuit Model Jury Instructions - Criminal 1.07.

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

See also 9th Circuit Model Jury Instructions - Criminal 2.2.

SAMPLE INSTRUCTION # 1:

Your obligation to avoid any publicity about this case includes information which might be available from electronic sources such as the internet, e-mail, chat rooms, etc.

SAMPLE INSTRUCTION # 2:

If someone should try to communicate with you using e-mail, internet chat rooms, or any other electronic means, please report it to me immediately.

[Adapted from 1st CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL No. 1.07, No. 3 [Conduct Of The Jury] (2002).]

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16.4.2 Jury Not To Consider Or Be Influenced By Public Opinion, Etc.

RATIONALE: A cautionary instruction should include all of the matters by which the jury should not be influenced.

POINTS AND AUTHORITIES: Any instruction concerning the duties of the jurors and how they should approach their tasks should include an admonishment against being influenced by public opinion, bias, sympathy, prejudice and the like. (See e.g. 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL (2001) 1.04 [Duty to Follow Instructions]; 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL (1991) 1.02 [Jurors' Duties]; 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL (1999) 1.01 [The Functions of the Court and the Jury]; 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL (2000) 1.01 [General: Nature of Case; Nature of Indictment; Burden of Proof; Presumption of Innocence; Duty of Jury; Cautionary]; 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL (2000) 3.1 [Duties of Jury to Find Facts and Follow Law]; 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL (1997) BI 2.1 [Duty To Follow Instructions Presumption Of Innocence].)

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

CAVEAT: In the penalty phase of a capital trial sympathy for the defendant may be a form of mitigation. (See NCJIC 301.4.2.1 [Sympathy].)

RESEARCH NOTES:

See also A Manual On Jury Trial Procedures [3.14A. Juror Exposure To Extrinsic Influences: In General].

See also A Manual On Jury Trial Procedures [3.14B. Juror Exposure To Extrinsic Influences: Evidentiary Hearing].

See also A Manual On Jury Trial Procedures [3.14C. Juror Exposure To Extrinsic Influences: Types Of Extraneous Influences].

See also generally, NCJIC 305.10.2 [Juror Exposure To Extrinsic Matters].

RELATED FEDERAL MODEL INSTRUCTIONS:

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

SAMPLE INSTRUCTION # 1:

You must not consider nor be influenced by any of the following:

Sentiment, conjecture, sympathy, bias, passion, prejudice, public opinion or public feeling.

SAMPLE INSTRUCTION # 2:

It is your duty to weigh the evidence calmly and dispassionately and to decide this case on its merits. Do not allow public opinion to affect your deliberations in any way.

SAMPLE INSTRUCTION # 3:

You should decide the case fairly and impartially upon the evidence and the instructions of the court and not allow public opinion to influence you in any way whatsoever.

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16.4.3 Jurors Should Be Admonished To Refrain From Using Jury Booklets During Trial

RATIONALE: Unless the jurors use of orientation booklets is limited, there is a danger the information in the booklet may usurp the court's instructions and admonitions at trial.

POINTS AND AUTHORITIES: Use of jury booklets during deliberations is likely to result in departures from the specific instructions selected by the court in consultation with trial counsel. For example, the Indiana State Bar Association publishes a "Juror’s Handbook" which is given to potential jurors. The "handbook" explains jury service, the difference between civil and criminal cases, conduct of the jurors, rules and instructions, evidence, trial procedure, jury deliberations, words and phrases, etc. Obviously, use of this handbook during trial would be improper and potentially prejudicial. (See e.g., State v. Wilkins (SD 1995) 536 NW2d 97, 99-100 [prejudicial misconduct for jury foreperson to refer to book on jury duty during deliberations].) However, nothing in the booklet specifically admonishes the jury against utilizing it in the juryroom. The first page states: "You have been chosen according to law to act as an officer of the court by serving as a juror. This booklet is to aid you in understanding and performing this important duty. ¶ You are urged to read it with great care. ¶ Remember that this booklet is intended as general information only, and it does not take the place of the instructions given to you by the judge in each case." [Original emphasis.]

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.2; 7.3].

PRACTICE NOTE: Even if the jurors do not bring the booklet into the juryroom during deliberations, it would be valuable for counsel to review any such booklet utilized in a given jurisdiction for potentially prejudicial or erroneous statements. Accordingly, as a matter of practice, counsel should obtain a copy of any informational materials given to the jurors so that the materials may be evaluated for matters which may need to be corrected or elaborated upon in the instructions to the jury.

See NCJIC 2.9 [Jury Service Informational Materials].

RESEARCH NOTES:

See also A Manual On Jury Trial Procedures [3.14A. Juror Exposure To Extrinsic Influences: In General].

See also A Manual On Jury Trial Procedures [3.14B. Juror Exposure To Extrinsic Influences: Evidentiary Hearing].

See also A Manual On Jury Trial Procedures [3.14C. Juror Exposure To Extrinsic Influences: Types Of Extraneous Influences].

See also generally, NCJIC 305.10.2 [Juror Exposure To Extrinsic Matters].

SAMPLE INSTRUCTION:

    When you reported for jury duty you were each provided with a _____________ (booklet / orientation guide etc.) describing in general terms the purpose and functions of jury duty, and certain basic rules governing jury conduct. That _______________ (booklet / orientation guide / etc.) gives a helpful introduction of how juries work.

    During trial, however you are to rely on only one authority, governing how you are to conduct yourselves and your deliberations during this trial: the actual instructions I give to you here in court, and in written form. You are to consider the [jury booklet / orientation guide / etc.] closed and unavailable. Do not re-read it or refer back to it in any way.

    You are absolutely not to read or consult the ______________ (jury booklet / orientation guide / etc.) from this point forward.

    Do not take the __________________ (jury booklet / orientation guide / etc.) into the juryroom during deliberations. If you have questions about how to proceed, or about how to interpret the evidence, or about exactly what questions you must decide, please first refer to the written instructions which I have provided to you. If those instructions do not answer your question, you should ask me. Do not consult the ___________________ (jury booklet / orientation guide / etc.) to answer such questions, and do not talk among yourselves about anything in that ________________ (booklet / orientation guide / etc.).

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16.4.4 Providing Jurors With Trial Notebooks

See NCJIC 2.10 [Use Of Trial Notebooks By Jurors].

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16.4.5 Jury Use Of Materials Not Received In Evidence But Which May Be Helpful In Managing The Evidence

See NCJIC 276.3.7 [Jury Use Of Materials Not Received In Evidence But Which May Be Helpful In Managing The Evidence].

RESEARCH NOTES:

See also A Manual On Jury Trial Procedures [3.14A. Juror Exposure To Extrinsic Influences: In General].

See also A Manual On Jury Trial Procedures [3.14B. Juror Exposure To Extrinsic Influences: Evidentiary Hearing].

See also A Manual On Jury Trial Procedures [3.14C. Juror Exposure To Extrinsic Influences: Types Of Extraneous Influences].

See also generally, NCJIC 305.10.2 [Juror Exposure To Extrinsic Matters].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 8th Circuit Model Jury Instructions - Criminal 2.01.

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16.4.6 Materials In Juryroom: Sanitizing Juryroom And Reviewing Materials Before Sending Them To Jury

See NCJIC 276.3.8 [Materials In Juryroom: Sanitizing Juryroom And Reviewing Materials Before Sending Them To Jury].

RESEARCH NOTES:

See also A Manual On Jury Trial Procedures [3.14A. Juror Exposure To Extrinsic Influences: In General].

See also A Manual On Jury Trial Procedures [3.14B. Juror Exposure To Extrinsic Influences: Evidentiary Hearing].

See also A Manual On Jury Trial Procedures [3.14C. Juror Exposure To Extrinsic Influences: Types Of Extraneous Influences].

See also generally, NCJIC 305.10.2 [Juror Exposure To Extrinsic Matters].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 8th Circuit Model Jury Instructions - Criminal 2.01.

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16.4.7 Jury Consideration Of Extraneous Evidence

See NCJIC 300.31.1 [Jury Consideration Of Extraneous Evidence].

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16.4.8 Source And Means Of Juror Exposure To Extrinsic Evidence

PRACTICE NOTE: The source and means by which the jury comes into possession of extrinsic evidence is irrelevant to whether the information was extrinsic and whether it was prejudicial. (See Benjamin v. Fischer (S.D. N.Y. 2002) 248 FSupp2d 251 [despite redaction of police report jurors held it up to the window during deliberations to read redacted portions].)