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16.6 Jurors Not To Conduct Independent Investigation

    16.6.1 Jurors Not To Engage In Independent Investigation
    16.6.2 Improper Use Of Dictionary, Reference, Reading Or Research Materials
    16.6.3 Admonition Against Visiting Crime Scene
    16.6.4 Accessing Information In The Media
    16.6.5 Use Of Magnifying Glass During Deliberations: Limiting Instruction
    16.6.6 Jurors May Not Consult Outside Party For Expertise, Information Or Opinion
    16.6.7 Juror Claim Of Personal Expertise During Deliberations
    16.6.8 Admonition To Refrain From Conducting Experiments To Test The Evidence
    16.6.9 Jurors Accessing Information From The Internet

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RATIONALE: Without specific instruction, the jury may not understand that they must not conduct independent investigation.

POINTS AND AUTHORITIES: A criminal defendant has a right to a new trial if exposure to extrinsic material could have adversely influenced the verdict. (See e.g., Peterson v. General Motors Corp. (8th Cir. 1990) 904 F2d 436, 440 [exposure to extraneous materials requires new trial only upon showing of prejudice to unsuccessful party]; U.S. v. Gaffney (MD FL 1987) 676 FSupp 1544, 1551 [trial court must examine extraneous material to which jurors improperly exposed].) "Extrinsic or extraneous influences include publicity received and discussed in the juryroom, matters considered by the jury but not admitted into evidence, and communications or other contact between jurors and outside persons. Extrinsic or extraneous influences may be grounds for impeaching a verdict."  (U.S. v. Bassler (8th Cir. 1981) 651 F2d 600, 602; see also Urseth v. Dayton (SD OH 1987) 680 FSupp 1084, 1088-89 [evidence concerning receipt of extraneous information is admissible to impeach verdict].)

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

RESEARCH NOTES:

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].

    During the course of the trial you will receive all the evidence you properly may consider to decide the case. Because of this, you should not attempt to gather any information on your own which you think might be helpful. Do not engage in any outside reading on this case, do not attempt to visit any places mentioned in the case, and do not in any other way try to learn about the case outside the courtroom.

    Now that the trial has begun you must not read about it in the newspapers or watch or listen to television or radio reports of what is happening here.

    The reason for these rules, 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; paras. 17 and 18 from p. 5 (1988).]

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

    You are not permitted to visit the scene of the alleged crime on your own. [If it is necessary for you to view the scene, you will be taken there as a group under my supervision.]

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RATIONALE: It is well established that it is a serious juror misconduct to consult a dictionary definition of a term during deliberations. Due to the possibility that the jurors may refer to dictionaries or other reference materials during deliberations, the jury should be expressly admonished not to consult such references.

POINTS AND AUTHORITIES: It is, of course, clear misconduct for a jury to consult outside references such as a dictionary. (See People v. Karis (CA 1988) 46 C3d 612, 642 [250 CR 659]; State v. Williamson (HI 1991) 807 P2d 593, 596; U.S. v. Gillespie (6th Cir. 1995) 61 F3d 457, 459 [use of dictionary to define "reasonable" was error]; Maslinski v. Brunswick Hosp. Center Inc. (NY 1986) 118 AD2d 834 [500 NYS2d 318]; State v. Richards (VA 1995) 466 SE2d 395, 400; but see People v. Landwer (IL 1996) 664 NE2d 677, 682 [error to refuse jury's request for dictionary].)

    However, because jurors are expected to rely on the common definition of the non-technical terms utilized in the instructions (see, e.g., NCJIC 272.3.4 [Summation/Closing Argument That Jury Should Utilize Common Dictionary Meaning Of A Term]), jurors do not always understand that it is misconduct to consult an outside references. (See generally NCJIC 300.31.1 [Constitutional Claims: Jury Consideration Of Extraneous Evidence As Misconduct]; see also NCJIC 16.6.2 [Improper Use Of Dictionary, Reference, Reading Or Research Materials].) Accordingly, it may be appropriate to specifically instruct the jury in this regard. (See e.g., Yannacopoulos v. General Dynamics (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. Cheyenne (8th Cir. 1988) 855 F2d 566, 567 [juror use of a dictionary is improper]; U.S. v. Aguirre (10th Cir. 1997) 108 F3d 1284, 1288 [no new trial required because jury’s improper use of dictionary not proven prejudicial to defendant]; U.S. v. Martinez (11th Cir. 1994) 14 F3d 543, 551 [new trial necessary where, inter alia, jurors referred to dictionary during deliberations]; State v. Williamson (HI 1991) 807 P2d 593, 596 [serious juror misconduct to consult a dictionary definition of a term during deliberations].)

PRACTICE TIP: Counsel should ask that the court tell the bailiff to make sure there are no books, dictionaries or other similar items in the juryroom. (See NCJIC 16.4.6 [Materials In Juryroom: Sanitizing Juryroom And Reviewing Materials Before Sending Them To Jury]; see also Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 2:9, p. 2-14.)

PRACTICE NOTE: This is the type of instruction that should be given prior to trial and before commencement of deliberations. See e.g., NCJIC 4.3.2.5 [Subsequent Change In Ruling Regarding Cautionary/Limiting Instruction May Constitute Unfair Surprise]; see also NCJIC 16.9.2.10 [Final Instructions Should Repeat The Cautionary Instructions Regarding Juror Questions To Witnesses]; see also NCJIC 26.1.2 [Timing Of Limiting Instruction: Should Be Given When Evidence Is Admitted And In Final Instructions].)

RESEARCH NOTES: 

See 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].

    During the course of the trial you will receive all the evidence you properly may consider to decide the case. Because of this, you should not attempt to gather any information on your own which you think might be helpful. Do not engage in any outside reading on this case, ... and do not in any other way try to learn about the case outside the courtroom. 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] (1988) ¶ 16, p. 4; ¶ 18 p. 5.]

    Do not do any research, such as consulting dictionaries or other reference materials.

[1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.07 [Conduct Of The Jury] ¶ 7 (2002).]

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RATIONALE: Absent a specific admonition to the contrary, jurors may out of natural curiosity, go to the scene of the alleged offense, or other locations identified during the trial. Jurors may believe such a visit enhances their ability to understand the facts. However, such self initiated juror visits to the locations of alleged events may deprive the defendant of the right to a fair trial. Counsel has no means of knowing the circumstances or conditions under which jurors viewed the site, whether the appearance of the site was misleading or required explanation. Such visits expose jurors to evidence and information while depriving defendants of any opportunity to object, and deprives defendants of other evidentiary safeguards essential to due process.

POINTS AND AUTHORITIES: An unauthorized view of the scene by a juror is serious misconduct. (People v. Sutter (CA 1982) 134 CA3d 806, 819 [184 CR 829]; State v. Little (IA 1969) 164 NW2d 81, 83; State v. Bell (Mont. 1987) 225 Mont. 83, 92 [731 P2d 336]; State v. Sands (OR 1967) 248 Ore. 213, 216 [433 P2d 256] citing Schneider v. Moe (OR. 1935) 151 Ore. 353 [50 P2d 577].)

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

PRACTICE NOTE: There may be an issue as to whether a jury view should be considered evidence. (See NCJIC 25.4.2 [Jury Should Be Instructed As To Whether Or Not The View Of The Scene Is Evidence].)

RESEARCH NOTES:

"Unauthorized View Of Premises By Juror Or Jury In Criminal Case As Ground For Reversal, New Trial Or Mistrial," 50 ALR4th 995

See 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 # 1:

    During the course of the trial you will receive all the evidence you properly may consider to decide the case. Because of this, you should not attempt to gather any information on your own which you think might be helpful. ... [D]o not attempt to visit any places mentioned in the case, and do not in any other way try to learn about the case outside the courtroom. ... The reason for these rules, 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; ¶ 18 p. 5 (1988).]

    Specific locations may be identified or described during the course of this trial. Do not, under any circumstances, attempt to visit or inspect any such location. If you believe that a visit to one of these locations is necessary for any reason, make a request to me in writing and I will determine whether or not such a visit will occur.

    You must only consider the evidence presented in the courtroom.  Do not make any independent investigation of your own such as going to the scene.

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RATIONALE: News reports about a case are not subject to any evidentiary standard. Therefore jurors who read, listen to or watch such reports, may be exposed to misleading or inaccurate information which unduly favors one side of the case, and to which the other side is unable to respond.

POINTS AND AUTHORITIES: Exposure of a juror to prejudicial publicity during trial "undermines one of the most fundamental tenets of our justice system: that a defendant’s conviction may be based on the evidence presented during the trial." (U.S. v. Noushfar (9th Cir. 1996) 78 F3d 1442, 1445.) When a juror receives information from publicity during trial the juror is, in effect, receiving testimony from an unsworn witness within the meaning of the confrontation clause. (See Marshall v. U.S. (1959) 360 US 310 [79 SCt 1171; 3 LEd2d 1250]; see also Jeffreys v. Wood (9th Cir. 1997) 114 F3d 1484, 1490 [when juror communicates objective extrinsic facts about the defendant to other jurors, the juror becomes an unsworn witness against the defendant].)

    News reports about a case are not subject to any evidentiary standard. Therefore jurors who read, listen to or watch such reports, may be exposed to misleading or inaccurate information which unduly favors one side of the case, and to which the other side is unable to respond. (See e.g., U.S. v. Aragon (5th Cir. 1992) 962 F2d 439, 444-47.)

    See also NCJIC 3.4.2 [Trial Publicity: Judge Has Duty To Inquire When Media Coverage Includes Information Not Presented At Trial].

    See also NCJIC 16.4.2 [Jury Not To Consider Or Be Influenced By Public Opinion, Etc.].

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

PRACTICE NOTE: This is the type of instruction that should be given prior to trial and before commencement of deliberations. (See NCJIC 4.3.2.5 [Subsequent Change In Ruling Regarding Cautionary/Limiting Instruction May Constitute Unfair Surprise].)

* USE NOTE: Internet And Computer As Improper Sources Of Information. Any instruction restricting the juror's access to the media should include electronic media such as the internet. (See NCJIC 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].)

RESEARCH NOTES:

See 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].

    During the course of the trial you will receive all the evidence you properly may consider to decide the case. Because of this, you should not attempt to gather any information on your own which you think might be helpful. Now that the trial has begun you must not read about it in the newspapers or watch or listen to television or radio reports* of what is happening here. 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.

* See USE NOTE above.

[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS Inst. No. 1 [Standard Preliminary Instruction Before Trial] ¶ 16, p. 4; ¶¶ 17 and 18 from p. 5 (1988).]

    News reports do not have the same safeguards as evidence presented in court.  Therefore, they could give you incorrect or misleading information that might unfairly favor one side. To be fair to both sides, do not read, listen to, or watch any news reports* about the case.

* See USE NOTE above.

    One reason for avoiding media reports* about the case is that such reports may contain information that is not appropriate for your consideration.  Also, media reports, no matter how completely prepared are only a summary of the events.  Since your decision must be based solely on your impressions of the evidence and your discussions with your fellow jurors, it would be improper for you to consider someone else’s view of this case.

* See USE NOTE above.

[See U.S. v. Aragon (5th Cir. 1992) 962 F2d 439, 444-47.]

    You may be tempted to read, listen to, or watch news reports during this trial. You must not do so because you must consider only evidence which meets certain standards. For example, a witness may testify about events he himself has seen or heard, but he generally may not testify about matters which others have told him about. Also, witnesses must be sworn to tell the truth and must be subject to cross examination.  News reports are not subject to these standards and, therefore, may contain misleading or inaccurate information which unduly favors one side of the case, and to which the other side is unable to respond.  In fairness to both sides, it is essential that you completely disregard any press, television or radio reports which you may read, see or hear. 

* See USE NOTE above.

[See generally U.S. v. Aragon (5th Cir. 1992) 962 F2d 439, 444-47; Marshall v. U.S. (1959) 360 US 310 [79 SCt 1171; 3 LEd2d 1250].]

    You must not read or listen to any news reports* of the trial.

* See USE NOTE above.

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

    The law requires that any evidence considered by the jury meet certain standards. All witnesses must be sworn to tell the truth and must be subject to cross-examination. News reports* are not subject to either of these standards, and, therefore, may contain misleading or inaccurate information which unduly favors one side of the case, and to which the other side is unable to respond.

* See USE NOTE above.

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RATIONALE: A juror may need a magnifiers for various reasons (e.g., as a means of compensating for impaired vision.) However, jurors may not use magnifiers to seek out evidence or information not presented during trial, since this constitutes exposure to new evidence.

POINTS AND AUTHORITIES: It is not considered improper experimentation for the jury to use a magnifying glass to increase the jurors’ visual acuity. (See Taylor v. Reo Motors, Inc. (10th Cir. 1960) 275 F2d 699, 705 [explaining that the salient question is whether a jury's investigation or experiment out of the presence of the parties is within the scope or purview of the evidence introduced or amounts to taking evidence]; People v. Turner (CA 1971) 22 CA3d 174,183 [99 CR 186] [reasoning that jurors' use of magnifying glass to examine photographs admitted into evidence was only an extension of the jurors' sense of sight].) However, the use of a magnifying glass is improper if it produces additional evidence. (See e.g., Taylor v. Reo Motors, Inc., 275 F2d at 705; see also State v. Griffin (NM 1993) 866 P2d 1156, 1163.)

    See NCJIC 276.1.4 [Discovery Of Additional Evidence During Deliberations].

    See also NCJIC 16.6.8 [Admonition To Refrain From Conducting Experiments To Test The Evidence].

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

RESEARCH NOTES:

Annotation, Propriety Of Juror's Tests Or Experiments In Juryroom, 31 ALR4th 566.

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RATIONALE: Without specific instruction, the jurors may improperly assume that it is permissible to talk with outside parties to obtain expert information.

POINTS AND AUTHORITIES: See U.S. v. Heller (11th Cir. 1986) 785 F2d 1524, 1528 [reversal warranted where juror queried accountant and disclosed answers to rest of jury].)

    See also NCJIC 16.6.1 [Jurors Not To Conduct Independent Investigation].

PRACTICE NOTE: This is the type of instruction that should be given prior to trial and before commencement of deliberations. (See NCJIC 4.3.2.5 [Subsequent Change In Ruling Regarding Cautionary/Limiting Instruction May Constitute Unfair Surprise].)

RESEARCH NOTES:

See 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 # 1:

    Do not contact any outside person on your own, to ask them for information or opinions bearing on any fact or question raised in this trial.

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RATIONALE: A juror’s assertions of personal expertise or knowledge about the case may induce other jurors to defer to the purported "expert." This would abridge the defendant’s right to have all jurors’ opinions freely, fully and equally considered during deliberations.

    Also, information presented by one juror to the others, supported by a claim of personal expertise, constitutes exposure of the jury to unauthorized evidence and deprives the defendant of the opportunity, guaranteed under the U.S. Constitution, to confront and cross-examine all witness or evidence submitted to the jury.

    Moreover, such assertions expose a source of juror bias, since a juror who considers him or herself knowledgeable on a subject may be biased regarding the credibility of a witness whose testimony contradicts that juror’s beliefs.

POINTS AND AUTHORITIES: Haley v. Blue Ridge Transfer Co., Inc. (4th Cir. 1986) 802 F2d 1532, 1538 [juror’s assertion during deliberations that his expertise regarding trucking industry confirmed witness’s testimony, carried reasonable possibility of prejudice, requiring new trial].

BRIEFING AVAILABLE: Click here. [Brief Bank # B-903].

RESEARCH NOTES:

See 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].

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RATIONALE: Juror experiments constitute the introduction of evidence to the jury. As such, they are a form of independent investigation which circumvents evidentiary safeguards and violates the defendant’s right under the U.S. Constitution to confront and challenge witnesses and evidence submitted in support of conviction. Moreover, juror experiments introduce evidence which may be flawed and/or prejudicial.

POINTS AND AUTHORITIES: See People v. Legister (NY 1990) 552 NE2d 154, 154-55; see also Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 2-11.

    See also NCJIC 16.6.1 [Jurors Not To Engage In Independent Investigation].

    See also NCJIC 16.6.5 [Use Of Magnifying Glass During Deliberations: Limiting Instruction].

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

See also Manual On Recurring Problems In Criminal Trials [Conducting Experiments Before Or Involving Jury: General Principles].

See 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].

See 6th Circuit Pattern Jury Instructions - Criminal 8.02.

    Do not conduct experiments or tests during your deliberations.

    (1) Remember that you must make your decision based only on the evidence that you saw and heard here in court. Do not try to gather any information about the case on your own while you are deliberating.

    (2) For example, do not conduct any experiments inside or outside the juryroom; do not bring any books, like a dictionary, or anything else with you to help you with your deliberations; do not conduct any independent research, reading or investigation about the case; and do not visit any of the places that were mentioned during the trial.

    (3) Make your decision based only on the evidence that you saw and heard here in court.

[6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 8.02 [Experiments, Research and Investigation] (1991).]

    You are not permitted to obtain information about the case on your own. Do not make any investigation, do any research, visit the scene or conduct any experiments.

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