Too Hot to Handle: Juror Misconduct

Juror misconduct is nothing new, but the ways in which a juror acts up can have prejudicial effects on the trial. 

Sixth Amendment Right to a Fair Trial 

The Sixth Amendment gives criminal defendants the right to a "public trial without necessary delay" and the right to "an impartial jury." 

When a juror acts improperly whether that action is voluntary or not, this action must be brought to the attention of the presiding judge. Then the judge will hold a separate evidentiary hearing to determine whether this action has a prejudicial effect on the trial. Depending on the degree of prejudice, a judge can keep the trial moving or declare a mistrial. See David P. Goldstein, The Appearance of Impropriety and Jurors on Social Networking Sites: Rebooting the Way Courts Deal with Juror Misconduct, 24 Geo. J. Legal Ethics 589, 595 (2011).

The misconduct may occur pre- or post-verdict. It is important for judges and other jurors to keep an eye out for any impropriety and address it immediately. Any pre-verdict inquiries can be dealt with using the method mentioned in the above paragraph. The misconduct is still measured for its prejudicialness, but when the misconduct is discovered post-verdict, the judge has less discretion in managing the trial. Most criminal defendants will appeal a guilty verdict when they find out a juror acted improperly. In extreme cases, a judge will have to reverse the verdict. See Bennett L. Gershman, Contaminating the Verdict: The Problem of Juror Misconduct, 50 S.D. L. Rev. 322, 329 (2005).

Misconduct Examples 

Most recently, a juror was caught playing Sudoku during the Elizabeth Holmes multi-week trial in California. This juror was dismissed for "good cause" and replaced with an alternate. 

The most common example of misconduct occurs when jurors use the Internet and conduct their own independent research. This type of misconduct has a prejudicial effect on the trial because a juror may be influenced from biased media articles, or the juror may hold on to their findings as if they were admitted as evidence. See Daniel William Bell, Juror Misconduct and the Internet, 38 Am. J. Crim. L. 81 (2010). It is vital to an impartial trial that the jury only consider evidence admitted at trial, witness testimony, conduct in the courtroom, and their own prior experiences. 

Looking up outside information is prohibited, but the access to Internet is hard, if not impossible, to control. Courts have held jurors' cellphones while they are in the courthouse. When the jurors go home for the night, it is impossible for the court to stop them from googling something about the case. See Goldstein, infra at 600. “Rather than discourage jurors' sense of moral duty, the courts might strive to redirect it by educating jurors as to the powerful reasons why their duty is to avoid outside information rather than to seek it out.” See Bell, infra at 94.

Other examples of misconduct include: communicating with outside third parties or with other jurors before deliberation, either evading questions during voir dire or not answering those questions truthfully, tweeting about the trial, and posting a poll on Facebook to decide a defendant's guilt. See Gershman, infra at 324, and Goldstein, infra at 589. Because mostly everyone has a smart phone today, the chances of juror misconduct are limitless. 

Consequences and Remedies 

Courts have decided to treat juror misconduct as they see fit. The most common way courts try to prevent juror misconduct is to give them very detailed preliminary instructions usually at the start of voir dire. But even with these instructions, jurors do not follow them or think they can get away with it. 

As noted in the Elizabeth Holmes trial, if the misconduct is discovered during the trial, then the court and lawyers confer to decide whether that juror should be dismissed and replaced. If the misconduct occurs post-verdict, then most courts remedy the prejudicialness by reversing the verdict. The court may also declare a mistrial. "Whether or not juror disclosures lead to a mistrial, the delays and additional resources required by investigations into the conduct have a significant cost, in terms of both money and time, on the judicial system generally and the litigants specifically." Goldstein, infra at 594.

While some courts have gone so far as to pursue criminal charges for extreme misconduct, there seems to be a chilling effect on other jurors reporting the misconduct. With a higher penalty, other jurors do not want to punish the one who acts up. See id. at 600.

Overall, the jury system is built upon the foundations of fairness and impartiality. "As the Supreme Court has repeatedly observed, invalidating a verdict after irresponsible and improper jury behavior would undermine the existence of the jury system." Gershman, infra at 344. 

A criminal defendant is constitutionally guaranteed a right to a fair trial by an impartial jury which is the reason why misconduct of some jurors must be handled seriously.