Introduction

Cases can be won and lost on voir dire. Success in jury selection relies on an attorney's interpersonal skills, mainly an attorney's ability to stand in front of a group of strangers and convince them that he or she is to be trusted.


While jurors are influenced by external factors such as knowledge of the case. More important are the internal factors, including their own past experiences and psychology. Internal factors are not only highly influential, but are also immeasurable, as the jurors themselves typically cannot explain their influence nor are they even aware of those influences. As a result, these internal factors are all too often overlooked.

Diversity Matters
First we must be honest about the reality of voir dire. While it is, in fact, the process by which biased jurors are removed from the juror pool with aspirations of producing a "fair and impartial jury," an attorney does not leave the role of advocate at the courtroom door when commencing voir dire. Being an advocate means that if an attorney believes that a juror is biased in his or her favor, that attorney will try to keep that juror.

Diversity is more than just race – it means valuing differences such as ethnicity, gender, age, religion, sexual orientation, socioeconomic and educational backgrounds. Investing in diversity goes beyond mere stereotyping, such as assuming an injured plaintiff wants a jury composed only of liberal-minded, soft-hearted, and generous people. Rather than focusing on generic stereotypes, attorneys should accept that as advocates, they are seeking a jury most favorable to their case. Attorneys must recognize that this begins with how the jury feels about the advocates. In turn, law firms must encourage their attorneys to use their diversity to relate to jurors as part of being zealous advocates for clients.

Diversity in a law firm allows a firm to empower its clients. A diverse trial team has many advantages, as not only is there is a visual benefit of the jury seeing a diverse team, but it also allows the trial team to be strategic. A firm with diversity among its attorneys can decide on a moment's notice who is best suited for voir dire based on jury makeup. If jurors believe that an attorney is a relatable figure, they are more likely to be candid in their responses during voir dire, and to trust that attorney more than the opponent throughout the trial.

Where Attorneys Unnecessarily Limit Themselves
While the peremptory challenge is a legal tool used to remove biased jurors, empirical data shows that many jurors who actually sit for trials are influenced by prejudices and biases. Despite this fact, attorneys often struggle with the importance of addressing how race and gender-based stereotypes inevitably affect people's judgment and decision-making which can result in losing juror biased in the client's favor.

Much of this failure to capitalize on jurors' favorable biases is due to the fact that freedom to select the perfect jury has its limits. The Seventh Amendment to the Constitution guarantees that a defendant in a civil suit has the right to a fair trial, by an impartial jury. Furthermore, in Batson v. Kentucky, 476 U.S. 79 (1986) the U.S. Supreme Court made it illegal to reject jurors on the basis of race. The Court determined that a man is entitled to be tried by a jury which represents a cross section of his community, and reasoned this could not be accomplished by rejecting jurors based on their race.

As a result, some argue that attempting to explicitly use one's race or gender to gain favor with a potential juror would likely cross the line established in Batson, believing it is unconstitutional to use a potential juror's diversity as the basis for a peremptory challenge. However, this extrapolation has limited attorneys unnecessarily, as Batson and its progeny regard excluding a juror on the basis of race, ethnicity, or gender. As set forth below, there are a myriad of ways diversity can be utilized within constitutional bounds.

Proponents of intentionally maximizing diversity in their legal teams argue that it is unethical for a defense lawyer to disregard what is known about the influence of race and sex on juror attitudes in order to comply with Batson. "The ethical obligation to comply with Batson conflicts with the ethical obligation of defense attorneys to vigorously defend their clients: The task of the lawyer, therefore, is to outsmart the system--to figure out the demographics of justice and to manipulate it during jury selection by eliminating jurors with the so-called wrong personal characteristics." Abbe Smith, "Nice Work if You Can Get It": "Ethical" Jury Selection in Criminal Defense, 67 Fordham L. Rev. 523, 524-28 (1998).

The importance of eliminating jurors with biases against your case is consistent with public sentiment. A 2008 Harris Poll showed that less than three in five Americans believe juries can be fair and impartial all or most of the time. Just Under Three in Five Americans Believe Juries Can Be Fair and Impartial All or Most of the Time, Harris Poll, Jan. 21, 2008. And it isn't just public opinion - empirical data supports the notion that many jurors who actually sit for trials are influenced by prejudices and biases.

This should not be surprising, as attorneys themselves are similarly influenced. Attorneys have all learned stereotypes from their culture and environment. When a lawyer sees a potential juror, he or she will almost instantaneously categorize that person on the basis of age, race or sex. Often unconscious of the stereotyping, an attorney will pay greater attention to information given by that juror that confirms their expectations. Studies have also shown that information that confirms expectations based on a stereotype will be recalled more easily, and any ambiguous information will be interpreted to conform to that expectancy. Antony Page, Batson's Blind-Spot: Unconscious Stereotyping and the Peremptory Challenge, 85 B.U. L. Rev. 155, 228 (2005).

As jurors make the same categorizations about the attorneys conducting voir dire, using diversity within a trial team to elicit favorable characterizations should be a focus of voir dire questioning. Questions that provide information that not only reinforces, but makes the jurors' inherent biases apparent to the legal team, should be an intentional focus. In doing so, there is a greater probability that those jurors with biases in favor of your case can be retained, and those whose biases do not favor your side can be challenged.

The Ultimate Goal – Getting the Juror You Need
Conducting a successful voir dire has as much to do with the manner in which questions are presented by an attorney as the questions themselves. The importance of connecting with the jury on a personal level can not be overstated.

One of the best ways an attorney can connect to a juror is to identify commonalities between the juror and attorney to establish a connection prior to trial. In the same way, jurors that see an attorney as similar to themselves will make attributions to the attorney such as the trustworthiness of that attorney. Capitalizing on similarities can be as simple as a slight, subtle change in dialect when greeting jurors. An African American female attorney who has tried many cases explained that she intentionally tailors her greeting to reflect the characteristics of the juror. When she greets a middle aged Caucasian woman, she might simply say "Good morning Ms. Morgan" to reflect that she is polite, articulate and trustworthy. When greeting an African American woman, she might use a more causal "How are you doing Ms. Morgan?" to reflect a familiarity that is conveyed to that juror by the dialect and tone of her greeting. In instances like this, what is said is not as important as using cultural mannerisms to communicate with the prospective juror.

Other techniques can be even more subtle, but highly effective, such as a slight change in an attorney's demeanor, or even just making a connection through eye contact. An African American male attorney explained that African Americans tend to communicate with their eyes. When walking down a street, it is a part of their culture to do a head nod of recognition when they see another African American. Therefore, when he sees black jurors, he makes a point of looking them in the eye for a bit longer so that commonality and understanding exists between them.

In another instances, a female Latina attorney who practiced in Laredo, Texas stated she appreciated the opportunity she received solely because of her Hispanic background. She was taken to trial very early on in her career because the jury pool was composed of mostly Hispanic people and her firm recognized the value her heritage had with the jury. During voir dire she made a point of introducing herself with her natural accent so that the jurors recognized that she was one of them.

While keeping suggestions like these in mind, an attorney must be careful not to alienate other jurors in this process. Attorneys for the defense have a particular advantage in this regard, as they conduct their examinations after the Plaintiff. Therefore, they retain the benefits of the knowledge derived from the prior examination, and consequently can incorporate this into more targeted questions to find commonalities among the trial attorney and the remaining jurors. Defense attorneys who are diverse also have the advantage of switching the attorney conducting voir dire at the last moment if something is revealed during plaintiff's questions that reveals a better match exists.

Although many attorneys are aware of the importance of posing questions relating to bias and life experience during voir dire, a great deal discount the importance of relating the similarities they find to themselves. This practice can be invaluable, but requires law firms to have already made a commitment to diversity. If a law firm is lacking in diversity, it is lacking in its ability to provide the best representation for its clients.

While some firms have begun to tailor their trial teams to be more diverse, many have not. Firms are still composed largely of white males, where minorities account for only 5.4% of partners, and 18.1% of associates. Minority women account for less than 2% of partners and 10% of associates. This places firms who have failed to invest in diversity at a distinct disadvantage when connecting with any jury. Survival of any business enterprise in today's world requires that the dialogue be open and honest about diversity. Recognizing the importance of diversity and making a commitment to it can only strengthen the success amongst law firms within the legal community. When we look at the jury pool today, we no longer see a majority of any one race, gender, or socioeconomic status. We see the melting pot we have become and a successful firm is armed with the ammunition to relate to that melting pot.

Stacy L. Douglas, Wood, Smith, Henning & Berman
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In an earlier article, we discussed the danger posed to an impartial jury system by the “Googling Juror.” In his article titled “Lawyers’ Use of Internet to Influence Jurors” (New York Law Journal, 6/12/12), Michael Hoenig cautions that “the danger to fair trials posed by Internet-surfing jurors is exacerbated by lawyer ‘advertising’ of their prowess or success on websites, by publishing case-specific information on firm sites or blogs or other Internet outlets, and by skillfully weaving inaccurate, misleading or self-serving messages, and ‘depositing’ them where straying jurors can ‘find’ them.” 

Hoenig concludes that these can be purposeful stratagems or innocent puffing. He points out that despite First Amendment protections, courts can and should restrict prejudicial speech by attorneys. He cautions that lawyers must be diligent in reviewing whether their adversaries (or agents) might be depositing messages about case facts or party litigants, or extraneous, non-admissible information on websites, blogs or other internet locations with the expectation that a straying juror would find the information. Even if the specific facts of a case at trial are not discussed, prospective or sitting jurors can still peruse the attorney’s website, noting biographical information, the firm’s specialties, featured clients and the “war stories,” crusades or victories many firms describe. Hoenig believes that this information likely will be passed to other jurors.

Lawyers do have First Amendment rights to a wide range of speech but they are also subject to reasonable restrictions as officers of the court. Further, lawyers are bound by ethical rules. Rule 3.6 of the Model Rules of Professional Conduct prohibits an attorney from making an “extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Rule 8.4 prohibits “conduct involving dishonesty, fraud, deceit or misrepresentation” and also states, “a lawyer or law firm shall not: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce to do so, or do so through the acts of another.”  The article discusses the facts of some of the cases that are emerging in this important area of the law. 

Thus, it is essential that trial counsel perform their own internet investigation concerning both the subject matter of their upcoming trials, and their adversaries' internet materials, to determine whether prejudicial information available to prospective jurors has been posted.

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A year ago we published an article in The Whisper titled Please Jurors, Check Your iPhone With The Bailiff (Vol. 7, Issue 2.) The article discussed the increasingly frequent problem of jurors' use of the Internet to do their own research and the use of social media sites such as Facebook and Twitter to communicate with each other and the world outside of the courtroom regarding the trials in which they serve. The temptation of a sitting juror to do her own research, or to discuss the case with other jurors or outsiders, has always been there; it is just that the advent of the digital age has made the ability to succumb to temptation so much easier. Clearly, courts have taken notice of the problem. Our article last year discussed the nature of the problem and what you, the lawyer, could do to learn of and handle the problem when it occurs. This article will in turn discuss what courts and legislatures around the country have done, and to suggest what more should be done to combat the problem at its source.

In the past year, there have been countless stories of jurors tweeting, posting to Facebook, blogging, or doing internet research during an ongoing trial. In a recent criminal case in California the jury was excused for a Mardsen hearing, which is when a defendant requests a new court-appointed attorney based upon a claim of ineffective assistance of counsel. During the hearing, which must be held outside the presence of the jurors, several jurors used a cell phone to Google the meaning of the hearing. The judge found out and was forced to declare a mistrial. Before releasing the jury, the judge reprimanded the jury and told them the consequences of their actions – that the State would have to pay for a new trial, and that the defendant, who may in fact be innocent, would have to spend the next few weeks in jail awaiting his new trial. Thus, the judge advised, the State incurred substantial funds and a man lost his liberty, all because the jurors spent less than five minutes on Google during a trial. Had the jury been better warned, with an explanation of potential risk, the jury may not have committed the misconduct.

Another example is that of Seth Rogovoy, a Massachusetts juror who was dismissed from a trial in February 2011 for his tweeting during his service. The tweets included a post which stated: "I am in contempt of court, de facto if not de jure" and "Sucks that you can't tweet from the jury box. What's the fun in that?" These tweets show that Mr. Rogovoy both understood that he was not allowed to make the posts and the potential consequence to himself, yet he did so anyway. After being dismissed by the judge, Mr. Rogovoy stated: "I never mentioned any of the people: the defendant, the witnesses. I never mentioned the court I was sitting in." In an interview later given to Bob Gardinier, as reported in the February 9, 2011 Albany Times-Union article Rape trial of ex-priest now before jury: Deliberations set to start in case; juror dismissed after using "Twitter," Mr. Rogovoy stated that, given the popularity of social media platforms like Twitter, judges will be forced to confront them in the courtroom. In that respect, Mr. Rogovoy is absolutely correct.

In order to prevent further juror misconduct through the use of social media, legislatures need to make it clear that it will not be tolerated, and courts need to instruct juries specifically on the impropriety of discussing or researching regarding an ongoing trial, why it is improper to discuss or research an ongoing trial, and the consequences to the juror if he or she fails to follow those instructions. This instruction should be made several times throughout the course of a trial, including when candidates are first called for jury duty, before voir dire, at the beginning of trial, before every recess, and before deliberations. The court must then monitor the jurors as best it can, and follow through with the threatened punishment. Most courts are now doing something about the social media, and in fact most of these suggestions are being followed by at least some jurisdictions. However, no jurisdiction has yet put them all together in a comprehensive effort to combat the social media problem. Without a strong message that juror misconduct is impermissible, the problem will only get worse.

More than half the state and federal courts now have jury instructions that at least make a passing mention of the internet when advising jurors or prospective jurors on the prohibition of performing outside research or discussing an ongoing case. This is a good first step, as many of the jurors who have made social media postings in the past have relayed that they did not understand this to be a "discussion" which was prohibited by the rules. For this reason, it is important that the instructions make more than a mere passing reference. Rather, the instructions should be as specific as possible, mentioning sites such as Facebook and Twitter (or whatever the prevalent form or social media of the day happens to be). At least then, the rule itself will be clear to the jurors.

Additionally, the most effective jury instruction not only gives the rule, but also explains the reasons behind the rule. While lawyers understand that some evidence is inadmissible for one reason or another and will not be known to the jury, many laypersons have a different view. They see lawyers and judges as keeping information from them that they need to know. Thus, not only are they curious, but many believe that they must know all the facts in order to be the best juror they can be. It is also important, as many model instructions now realize, to give the jury the reasons so that they understand that it is important that they follow the rules. Just as important is to advise the jury of the consequences to the courts and parties if they do not follow the rules, and the likelihood of a mistrial.

Often these instructions are repeated in one form or another several times throughout the trial. This, coupled with a recitation of the policy reasons underlying the instruction, will provide the jury with a constant reminder of the prohibition and sound basis for not falling to temptation. While it may seem repetitive, the ease with which a person in today's world can pull out their cell phone and record a status update which can jeopardize the entire trial necessitates the constant reminder as seen in the examples above.

In San Francisco County, in response to a jury pool of over 600 that was dismissed in 2009 following the realization that they had all researched a high-profile case prior to voir dire, the court takes a more aggressive approach. Prospective juries are given a questionnaire with a cover sheet that states in part:

You are ordered not to discuss this case with anyone; do not allow anyone to discuss the case with you. The only information you may tell anyone is that you are in a jury pool for a trial and the time requirements of that trial. You are also ordered not to read, listen to, or watch any news, Internet, or other media accounts of this case, past or present. You may not do research about any issues involved in the case. You may not blog, Tweet, or use the Internet to obtain or share information. (CCP §1209(a)(10))

In addition to the instruction on prohibition, there must be consequences for a juror's willful disobedience of the rules. There are many individual instances where a judge has held a juror in contempt of court for violating the prohibition on research and discussion, and held hearings. This may need to be a more frequent and publicized occurrence to stem the growing problem. California recently passed a new law, AB 141, which went into effect on January 1, 2012, that makes a willful violation of the prohibition on research or use of social media punishable by not only civil contempt, but also makes it a misdemeanor. See Cal. Civ. Proc. Code § 1209(a)(6); Cal. Penal Code § 166(a)(6). In addition, the bill amends current law and requires that the jury be specifically instructed, before trial and before recesses, on the prohibition of research or dissemination of information, in all forms including electronic and wireless. See Cal. Civ. Proc. Code § 611; Cal. Penal Code § 1122. If anything, the bill does not go far enough. For instance, it could require offending jurors to pay for the consequences of their action, including the re-trial of the case if necessary.

While several judges in California and in other jurisdictions have taken it upon themselves to hold a juror in contempt for prohibited conduct, including the use of social media or performing internet research, the California Legislature's codification of this violation as not only civil contempt, but also a misdemeanor, is a step in the right direction. However, while California's new law requires the judge to advise juries regarding the prohibition on internet research and use of social media, it does not require the judge to instruct the jurors on the consequences of their actions if they fail to follow the rules. This too is important. While advising the jury of the reasons behind the rule appeals to their sense of civic duty – the carrot – advising the jury of the consequences of failing to adhere to the instruction lets the jury know that there will be real punishment – the stick. Both the carrot and the stick are necessary in order to have the best chance of strict adherence to the rules.

Finally, not only is it important that there be a law in place for handling a juror's violation and that the jury be advised of that law. The law must be enforced, possibly by the district attorneys as a misdemeanor rather than the judge as civil contempt. The instruction could also contain a request that the jurors report to the court if they know or suspect that one of their co-jurors may be violating any of these orders, which would in essence be self-enforcement.

Other courts have experimented with the prohibition of cell phones in the courthouse for everyone, or at least for jurors. Indiana, for instance, requires the bailiff to collect and store computers, cell phones and other electronic communications devices prior to deliberations. This rule was implemented after the Indiana Supreme Court considered a case wherein a juror took a cell phone call during deliberations. There, the Indiana Supreme Court wrote: "We additionally observe that permitting jurors, other trial participants, and observers to retain or access mobile telephones or other electronic communication devices, while undoubtedly often helpful and convenient, is fraught with significant potential problems impacting the fair administration of justice….The best practice is for trial courts to discourage, restrict, prohibit, or prevent access to mobile electronic communication devices by all persons except officers of the court during all trial proceedings, and particularly by jurors during jury deliberation." Henri v. Curto, 908 N.E.2d 196, 202-203 (Ind. 2009). Although helpful for times when the jurors are actually at the courthouse, this solution may not provide much in the way of curbing the practice of Internet research and social media discussions after hours, unless the jury is sequestered for the entire trial.

Our jury trial system is dependent on the jurors who are privy only to the evidence admissible in court, instructed on the law solely by the judge at the conclusion of the evidence and who have not been predisposed to outside opinions or discussions of the case before deliberation with their fellow jurors. While no solution is perfect, it is clear that courts, legislatures, and lawyers must do more to halt the increasing episodes of juror misconduct.

Tom D'Amato is a shareholder with Murphey, Pearson, Bradley & Feeney in San Francisco. He maintains an active litigation and trial practice in state and federal courts, and in administrative proceedings before regulatory and government agencies. Chief among his areas of practice are professional liability, business disputes, intellectual property, real estate, employment and personal injury. Mr. D'Amato also regularly represents clients in appellate courts.

Adam Koss is an associate with Murphey, Pearson, Bradley & Feeney in San Francisco. Mr. Koss focuses his practice on all phases of litigation, representing clients at mediation, arbitration and through to trial if required. Mr. Koss has an active practice defending professionals and their businesses, specifically in malpractice actions. Although he focuses predominantly on the defense of professionals and businesses, he also represents clients in a variety of other fields, including products liability, employment law, real estate, contract disputes and general negligence.

 

 

 

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Less Jury Trials Impact Many; Florida Study

Posted on February 10, 2012 08:56 by Lori Vella

 If you spend some time looking at the statistics, you will see the number of jury trials is swiftly declining.  Many states and organizations have recognized the decline, voicing concerns about the resulting impact on the judicial system, the public and lawyers.  The Florida Bar created a special taskforce, the Special Committee to Study the Decline in Jury Trials (“Committee”), to research and analyze the trend, determine the root cause of the decline and recommend a course of action to the Florida Board of Governors to minimize the impact of this decline.  The Committee issued its final report in December 2011.  The full report is available at floridabar.org by clicking “About the Bar,” followed by “Committees” and then “Special.”

The Committee reviewed, among other published studies, Professor Marc Galanter’s article The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts (1 J. Empirical Legal Studies 459 (2004)).  When you view the statistics, the decline is apparent, and staggering.   For example, in 1962, 11.5% of 50,320 civil federal court dispositions were by trial.  In 2002, there were only 1.8% dispositions by trial, out of 258,876.  In Florida civil cases, 1.6% of total civil cases (155,407) were resolved by jury in 1986.  By 2009, the percentage reduced to .2%, while the number of civil cases increased to 401,463. 

According to the Committee, there are several reasons why jury trials suffered declines.  For civil cases, the rise of alternative dispute resolution mechanisms contributed markedly.  The expense of trials is always another common deterrent.  Another factor is the time it takes to bring a case to trial.  Despite the reduction in number, it was noted that jury trials have become more complex -- longer and more complicated. 

The declines have not been without negative impacts.  With fewer jury trials, fewer people participate in the judicial system as jurors.  Jury service helps educate the public about the justice system.  It is a simple way for the average citizen to play a role in governmental decision making.  If the nearly all disputes are resolved privately, via mediation or arbitration, rather than in an open courtroom, the public’s perception of the justice system will become further skewed.

The decline in jury trials also contributes to reduced funding to the court system, as the decline itself may be viewed as a reason to fund less.  This contributes to a never ending cycle of funding and less independence of the judiciary. 

One of the greatest impacts, however, is the effect on new lawyers.  A lawyer learns best by first-hand practice.  With less opportunity to conduct a trial, lawyers must look to other training which will always be less adequate than the real thing.  The new lawyer ends up feeling uncomfortable and unsure regarding his or her skills.  When the opportunity finally arises, the lawyer may shy away from the experience because he or she simply does not know how to try a case. 

The Committee recommended several measures, including full funding of the courts.  To reduce the impact, the Committee also suggested training and mentoring programs for young lawyers, such as certified legal intern programs or State Attorney/ Public Defender internships.  The Committee further recommended techniques to the bench to more efficiently administer judicial duties, with less cost to litigants, such as streamlining discovery and encouraging the use of expedited jury trials. 

DRI created the Jury Preservation Task Force to examine this federal and state vanishing jury trial phenomenon and report on its findings, which will be published in a future edition of For the Defense.    

 

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The vanishing jury trial is perhaps one of the most important issues facing the civil justice system today.  Civil trials have declined in federal courts from 12% in 1984 to less than 1% in 2010.  Statistics from state courts, though more difficult to obtain, generally show the same trends.  The issue has been widely studied, and while the fact of the vanishing trial is clear, the reasons for the decline are less obvious.  Several theories have been advanced, ranging from a dramatic rise in case filings and underfunded court systems to the ever increasing cost of litigation and the success of alternative dispute resolution.  

In 2010, DRI created the Jury Preservation Task Force (JPTF) to examine and inform the membership of issues impacting civil jury trials.  The work of the JPTF is now underway.  In 2011, the JPTF conducted multiple surveys concerning issues impacting civil jury trials.  Survey respondents included State and Local Defense Organization (SLDO) leaders and participants in both the DRI Insurance and Corporate Counsel Roundtables.  The JPTF is now in the process of examining the survey results along with the significant body of research available on the vanishing jury trial and the initiatives being proposed to address the problem.
The JPTF, in collaboration with DRI’s Trial Tactics Committee, will publish the results of its findings in a future edition of For the Defense.  Then we will ask for your help.  Stay tuned!

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Facebook update becomes issue for juror

Posted on August 31, 2010 03:05 by Steven F. Coronado

Technology has created a new avenue for identifying potential juror misconduct.  I read a recent article about a juror who commented on Facebook that it was going to be fun to tell the defendant he was guilty.  The problem was that the evidence had not concluded.  She updated her Facebook status with the comment during a break in the trial.  Whether you are a criminal or civil trial lawyer you know a juror is supposed to wait until they have heard all the evidence before making up their mind.  However, all trial lawyers have heard the jury consultants say that as a practical matter most jurors make up their minds by the end of the opening statement.
 
In the case of this juror, the update was found by a member of the defense lawyer's staff who was reviewing juror Facebook pages when he ran across the update.  When the judge in the case was advised of the update, the judge replaced the Facebooking juror with one of the alternates on the case.
 
Now, was it really misconduct for the juror to post her feelings on Facebook?  Under current standards there is no question that it was.  However, are we putting form over substance?  If most jurors make up their minds by the close of evidence where was the harm?  Was it making up her mind too soon or in telling folks that she had made her decision?  Given what the juror posted, was it a reflection of how the entire jury panel felt and should the defendant not have gotten a mistrial?
 
As a practical matter, you can bet my staff will be reviewing juror Facebook pages during my future trials.

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Categories: Jury | Social Media

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I recently read an article that discussed a growing trend in jury trials:  allowing jurors to ask questions of witnesses.  The article indicates that allowing jurors to ask questions of witnesses while on the stand is a favored trend because it helps jurors feel more like they are a part of the process and likely reduces deliberation time because jurors spend less time in deliberations speculating about unanswered questions.

The article set out a simple process.  Once counsel concludes their examination, the jury is asked by the judge if they have any questions.  Any questions are written down by the jurors and passed to the Court Deputy who hands them to the Judge.  The Judge determines if it is a question that at least on its face appears proper.  The Judge then asks Counsel if they have any objection.  If there is no objection the question is asked.  If there is an objection the Court rules the objection and makes the call whether to ask the question.

Well as fate would have it, I lived the experience of allowing jurors to ask questions in a recent wrongful death trial.  The process followed was very similar to that outlined in the article with the exception the Court at times tried to clarify the question and did allow follow up by Counsel. 

During four days of evidence, there were about a dozen questions. Only two were rejected by the Court as improper.  In the case of an improper question the Court simply did not ask the question without any explanation as to why the question was not asked.  There were no questions asked that were objected to by one side but not the other.

The overall experience was positive especially since the jury returned a defense verdict, but I have to say I am not sure any time was saved during deliberations since it still took the jury six hours to return their verdict.  In sitting and listening to the Court ask the questions posed by the jury it dawned on me how much the Court could, by how it asks the question, rephrases the question or by asking its own follow up question, influence a jury.

For future reference if you are comfortable with your judge I see no reason to oppose allowing the jury to ask questions of witnesses especially since it will likely happen anyway.  I would however, make sure  the process of how the questions will be asked is clear including if there is to be any clarification that Counsel have input in the clarification of the question and that any follow up questions come only from counsel.  The only other suggestion I might offer is that the jury be advised, when they are instructed they can ask questions, that if a question they pose is not asked it is because under the rules of evidence the question cannot be answered or some other general reason why the question was not asked.

If anyone would like to share their experience with jury questions please do, I would like to know how others feel about this apparent growing trend in jury trials.

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Categories: Judicial Process | Jury

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The judicial system will be busy creating new law concerning the phenomenon of jurors texting, tweeting and googling while serving on the jury.  Creating new jury instructions is the easy part.  Enforcing such instructions and deciding what to do when a juror does not follow them or what to do with a trial that is tainted because of the same, is the real daunting task.  One thing is clear, courts across the country are moving towards banning all electronic communications from the jury.
 
For example, in late January this year, the Judicial Conference released to the federal judiciary a model jury instruction which has been coined the “Twitter instruction” that states:
 
“You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, My Space, LinkedIn and YouTube.”
 
There are no nationwide jury instructions for state courts.  Each state adopts its own set of jury instructions.
 
On September 1, 2009, the Michigan Supreme Court imposed a new rule that will require all judges to instruct jurors that use of any handheld device such as iPhones or Blackberrys while in the jury box or during deliberations is impermissible.  As follows, when such devices are banned, communications such as tweets on Twitter, Google searches, Facebooking and text messages by jurors during trial will come to a halt for Michigan jurors and those jurors in jurisdictions with similar instructions. 
 
Michigan’s new rule arrives in the wake of an influx of recent cases in which jurors have blogged, posted Tweets, sent text messages or updated their Facebook during trials, resulting in the dismissal of jurors, mistrials and angry judges.  These results will keep the courts busy creating law for years to come. Specifically, when these mishaps occur should a mistrial be granted?  Should the offending juror be excluded?  To date, courts have really gone either way with these issues.
 
For example, in March 2009, during a Florida drug trial it was discovered that nine jurors were ignoring the judge’s instructions and conducting Google research on the defendant, checking legal terms and uncovering evidence that was excluded at trial.  The result, the judge declared a mistrial.  Further, in Florida, a Miami-Dade Court Judge declared a mistrial in May 2009 in a civil fraud case after a company executive witness texted his superior on the stand during a side bar conference.  
 
In contrast, in Pennsylvania, a mistrial was not declared although called for, when a juror was discovered tweeting and publishing trial updates on Facebook in the prosecution of a former Pennsylvania state senator convicted of graft.  In Arkansas, a judge in April 2009 ruled that there was no mistrial when a juror’s Twitter posting stated, “just gave away TWELVE MILLION DOLLARS of somebody else’s money.”  The judge upheld the $12.6 million dollar verdict finding that the tweets were not improper although done in poor taste. 
 
Jurors are supposed to deliberate cases based on evidence presented at trial in the courtroom and not based on independent research via the web.  Those rules are clear.  However, how far can a juror go and what standard will the courts use to determine when a juror has gone so far as to taint the whole process.  This has yet to be developed into a consistent body of law and this new area of law is ripe for development.

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Laugh Break - Real Life Stories of a Juror

Posted on February 19, 2010 10:46 by David Metzler

I’m posting something a little different today. The material on this blog is normally related to legal or DRI matters, but its Friday and everyone needs a break. The following is one person’s recount of her day serving as a juror in a municipal traffic court. Its funny but it also provides us some (valuable?) insight into jury deliberations.

I hope everyone enjoys this as much as I did.

(By the way, I received written permission to post this.)


"Dear Citizens,

I wish I were a good writer because I’d really like to convey what an incredibly, unbelievably asinine day I had today as a juror for the municipal court of [City, State]. So please bear with me in my ramblings and read on if you dare.

“Call time” was 7:30 a.m. with no instructions on where to park. I parked in a nearby un-labeled lot and hoped I wouldn’t get towed. As luck would have it, I actually picked the right lot. My luck would soon run out. More...


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Internet Reserach by Jurors

Posted on November 12, 2009 02:53 by John Kuppens

Here is a link to a very interesting case out of South Dakota in which a defense verdict in a wrongful death case was vacated because of juror misconduct involving internet reserach. I invite you to share your comments about the best way to prevent these types of problems.

http://www.sdjudicial.com/opinions/downloads/y2009/24726.pdf

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