by Ralph Artigliere, Jim Barton and Bill Hahn
Juror misconduct1 is not a recent problem.2 Despite instructions from trial judges to the contrary, jurors have been too often tempted to access information from outside the courtroom.3 Years ago, one solution to the elimination of outside influence on jurors was sequestration. Sequestration is still used in noncapital criminal cases in Florida at the trial court’s discretion and is required in death penalty cases, absent waiver or special circumstances.4 In civil cases, however, economics, not to mention inconvenience and discomfort to jurors, has all but eliminated sequestration as a viable method to prevent contact with the outside world.5
Why is juror misconduct on the rise? Consider the setting for today’s jurors. Most jurors enter a place and a system they know little about, except through cultural sources of the press, television, movies, and now the digital media. Many of them, perhaps most, will have at least a cell phone, and an increasing number of jurors will have equipment and habits that keep them in audio, text, and visual media contact with the world and other people through phone or Internet. Some will be extremely attached, to the point of dependence, on their phone, iPod, Blackberry, or other device, a form of behavior that is a product of relatively recent cultural shifts and is fully understood only by others with similar techno-savvy skills and behavior. Judges and lawyers should take into account the motivation, capability, or dependence of such jurors on their equipment.6 Some jurors will want to text what they are doing at any given moment and why they are doing it to friends, family, and thousands of strangers. To say that current jurors have enhanced temptation and ability to communicate about the trial with the outside world is the understatement of this still young century. Jurors have the capability instantaneously to tweet, blog, text, e-mail, phone, and look up facts and information during breaks, at home, or even in the jury room if they are allowed to keep their digital “windows to the world.” Jury instruction by the judge about communication outside the courtroom has not kept pace with technology.7
The problem of outside influence on jurors is no longer confined to high profile cases that are covered in the press or other media. Courtroom misconduct seems to be everywhere. Recently, a witness in Miami was discovered texting his boss about his testimony during a sidebar conference resulting in a mistrial;8 a South Dakota juror in a seat belt product liability case Googled the defendant and informed five other jurors that the defendant had not been sued previously;9 a juror in a federal corruption trial in Pennsylvania posted his progress during deliberations on the Internet resulting in a motion for mistrial;10 a juror in Bartow, Florida, looked up a defendant’s “rap sheet” online and told fellow jurors, resulting in a mistrial; and jurors in a Florida criminal case made anti-Semitic comments to each other and consulted one of the jurors’ accountants during deliberations by telephone.11 Nine of the jurors on a deliberating panel in a federal case in Miami admitted to the judge that they had been doing research on the case over the Internet, resulting in a mistrial.12 The judge learned that the jurors were Googling the lawyers and the parties, finding news articles about the case, researching definitions and information on Wikipedia, and looking for evidence that had been excluded in the case. All this was accomplished despite the judge’s repeated instruction not to do so.13 These examples represent recent transgressions that were discovered, and probably represent just the tip of the iceberg of juror behavior.14
Another dilemma is that jurors digitally linked to the outside world may receive unsolicited information relating to the trial
from friends and family who know about their jury service. They may receive texts or e-mails inquiring about how the case is going or whether it is interesting. Outsiders thinking they are being helpful may forward articles or other materials they have found on the Internet to jurors. Texts or tweets may include unwanted advice or input of the “hang that crook!” variety. It will be hard for the juror not to read such incoming material. Thus, a juror who does not intend to go looking for information or influencing commentary from others gets it anyway.
Improper juror communication and research are only part of the problem. Another insidious type of juror misconduct is misrepresentation or disinformation provided to the judge and lawyers in qualification and voir dire. Deception during voir dire deprives the examining attorneys and the judge of the opportunity to obtain accurate information for challenges for cause and peremptory challenges. The level of deception ranges from jurors who puff their qualifications or hide or gloss over information to avoid embarrassment to “stealth jurors” on a mission and willing to lie to get on the jury in order to carry out an objective for or against one of the parties. Regardless of motive, jurors who betray their oath as jurors subvert the jury system and threaten the fairness of the process.
Remedies for Juror Misconduct Are Inadequate
When discovered, juror misconduct raises the potential of a mistrial or new trial.15 The parties have a fundamental right to a proper jury, and juror misconduct invokes issues of fairness and due process.16 However, before granting a new trial, the trial judge and lawyers must accurately get to the bottom of the circumstances of misconduct through investigation and interview of the juror or jurors if necessary.17 When the claimed misconduct involves improper juror research, under the evidence code, the court must determine whether the misconduct was inherent in or external to juror deliberations.18 A juror interview will not be granted unless the judge determines that the movant’s affidavits establish that juror misconduct occurred as a result of some outside influence, such as the receipt of nonrecord evidence. To merit a new trial, the result of the juror interview must confirm actual juror misconduct involving an external influence.19
For alleged juror deception during voir dire, the judge must apply a three-part test set forth in the Florida Supreme Court case of De La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla. 1995): “[T]he complaining party must establish: 1) the information is relevant and material to jury service in the case; 2) the juror concealed the information during questioning; and 3) the failure to disclose the information was not attributable to the complaining party’s lack of diligence.”20 Intentional or not, deception during voir dire warrants a new trial only if counsel was prevented from making an informed judgment that likely would have led to a peremptory challenge.21
The very real problem is that even if the illegal behavior is discovered, and if the court can be convinced to interview jurors, and if the De La Rosa standards or outside influence are established, the remedy is a new trial, an unhappy and costly outcome for both sides. Without question, the best solution is to prevent juror misconduct in the first place, or at least to reduce its incidence as much as possible.
How to Head Off Juror Misconduct
Juror misconduct may occur intentionally or through juror ignorance or oversight. Perhaps better, clearer, and more comprehensive jury instructions would help motivate most jurors to avoid mistaken misconduct. Of course, regardless how clear an instruction is, it may not be enough to prevent intentional misconduct. Jurors need to know the consequences of their misconduct. Toward that end, the standard jury instructions already reference perjury during voir dire.22 Moreover, in a letter dated August 26, 2009, Justice Fred Lewis requested that the Florida civil and criminal jury instruction committees consider and jointly propose a “uniform approach [to the problem of electronic communications and research by jurors during the case] along with uniform jury instructions to be used in all cases” by January 11, 2010. In his letter, Justice Lewis referenced a new Michigan rule requiring the judge to instruct against the use of electronic devices at the time the panel is sworn.23 It remains to be seen what results from this request.
In the meantime, should the judge or parties do more? For example, the judge or lawyers could inform the jurors that the lawyers will be checking on them to see whether jurors were truthful in voir dire. The disadvantage is the potential of creating a hostile atmosphere in court, where such does not need to exist. Who would not feel uncomfortable with such a representation? Likewise, specifically delineating what activities are prohibited may be counterproductive. First, the off-limits behavior may not otherwise occur to jurors until the judge raises it. By instructing on what not to research, jurors may speculate on what the judge and lawyers are keeping from them.24 Worse yet, some jurors may experience what has been termed the “reactance effect,” when denying jurors freedom causes them to try to obtain the forbidden information.25 That approach could result in conjecture or, worse yet, suggestion of research for jurors subject to temptation. Judicial instruction should be tempered with these potential downsides in mind. But something can and should be done to improve judge and lawyer communication with jurors about juror misconduct.
This article suggests tempered enhancement of the standard jury instructions and practical methods for judges and lawyers to express clearly to jurors what is expected of them. Good communication with jurors is more than words: It is timing, delivery, and creating the best climate for juror acceptance of the message. Jurors should hear the message, understand it, and be motivated to follow the instructions. This goal is best accomplished if the jurors are as comfortable as possible, and the judges and lawyers present a congruent and clear message with reasonable and consistent reminders throughout the trial. It helps if the judge tells jurors they will be held accountable for their behavior without threat or intimidation. And yes, all of this instruction needs to fit in the context of all the other important things the jurors need to hear about the case, because brevity and scale are important.
Practical Ways to Prevent Improper Juror Communication and Research
Judges around the state take different approaches in addressing juror misconduct. In the end, every judge and lawyer must employ the tools and use words that fit their character, personality, and ability, but some approaches that stand out are mentioned here. Regardless of the measures taken in court, jurors will have their equipment plus their computer and other temptations outside the courtroom during overnight and other recesses. Nonetheless, some judges have started to remove distraction and temptation during court time and deliberations by taking charge of jurors’ phones, iPods, and other devices.26 To alleviate juror anxiety, these judges give jurors an emergency court telephone number so loved ones can reach them in a true emergency. Other judges simply require electronic equipment to be turned off in the courtroom and to be turned in to the bailiff during deliberations. Some judges are still reluctant to take charge of the juror’s property and lifeline to their loved ones at all and instead admonish jurors against improper use of the equipment in trial and in deliberations. It is hard to see how allowing electronic equipment during deliberations squares with removal of magazines, calendars, calculators, and other sources of information from the jury room. Many “phones” have calculators and access to far more potentially damaging information on the Internet, not to mention the distractions of e-mail, games, and phone contacts while jurors are trying to deliberate.
What is the correct message to send jurors about research and communication? Part of the answer, of course, is already in the standard jury instructions. A few years ago, the word “Internet” was added to combat the danger that jurors may go beyond the traditional media to a bountiful and available source of interesting information about the parties, lawyers, judge, or the case.27 Basically, jurors are told not to talk with anyone about the case or to allow anyone to talk with them. They are asked not to talk to each other about the case and not to read or hear or look up anything from any source outside the courtroom, including the Internet.28 Does that mean jurors should not put their experience on Facebook as it unfolds? Can they text it to friends and tell recipients not to respond? Clearly, all of this is off limits, but some jurors seem to transgress all the time these days. Do they know they are doing wrong?29 Can we do a better job of communicating? Can we remove some of the temptation? Yes, we can.
There are probably more complete instructions that can be given to today’s juror than the current standard instruction.30 The Florida Supreme Court Standard Jury Instruction Committee (Civil) is already working on enhancements to the standard instructions to arm judges with clear, concise, more comprehensive instructions to combat what seems to be a wave of juror misconduct.31 But standard instructions take time for drafting, presentation to the court, publication to the Bar, and consideration and acceptance by the Supreme Court.32 Thus, even apart from the standard instructions, judges and lawyers can prepare and use their own instructions to address this problem, as long as they are consistent with the law (if not objected to) or deemed necessary and appropriate for the case by the judge and justified as such in the record.33
Some judges are already enhancing the standard instructions on their own.34 Many judges employ repetition in the form of brief reminders during the trial. For example, the judge may tell jurors early on that he or she will be checking back with them to make sure they have been following instructions. Then the judge follows up by briefly reminding before, or questioning after, certain recesses or all recesses, depending on the length of the trial and the judge’s feel for the jury. The judge, after greeting the jurors, can simply ask, “Have you been able to follow all my instructions, including not discussing the case and not doing any research? Has anyone contacted you or have you contacted anyone or done any writing or research on the case?”35
Some judges tell jurors why it is important to follow the instructions. Many jurors respond better to direction if they understand the reason the requirement has been placed on them. The judge may briefly explain sequestration and how it was used in the past to prevent outside influences. Then the jurors are told that, instead of sequestration, we rely on the jurors as part of their duties to remain free from outside influences and information. This admonition places on the jurors themselves the responsibility to keep free from outside influence. Further, just prior to swearing the jury, the judge can once again explain the instructions the jurors must follow about equipment, communication, and research in detail, ask if there are any questions, and then ask if any juror cannot follow the instructions throughout the entire trial. Getting individual responses from each juror emphasizes the requirement and commits each juror about as well as can be done. Another tactic is to “empower” all jurors to report transgression by informing them of their duty to report any violation of the court’s instructions, including any communication of any juror with the outside about the case or any attempt to bring into court information from outside the trial.
If there is a concern about incoming messages during trial, perhaps judges could give jurors the following suggestion for an outgoing e-mail, text, and/or tweet that they can immediately send to friends and family right after they are sworn in:
I am sending this note to you as instructed by Judge _____. I am now a sworn juror in a trial. I am sequestered. This means I am not allowed to read or comment upon anything having to do with the subject of the trial, the parties involved, the attorneys, or anything else related to my service as a juror. Please do not send me any materials; don’t e-mail, text, or tweet me any questions or comments about this case or my service as a juror. Please do not text or e-mail me during the course of this trial except in an emergency. I will send you a note when I am released from my duty as a juror.
Jurors could leave a variation of this message as the greeting in their voice mail during their service, including an emergency number for use by a caller when warranted. They could then turn off their phones for as long as necessary.
Most of all, judges and trial lawyers should regain control by changing the fabric of jury duty. Jurors should be required to take personal responsibility for “sequestering” themselves and for ensuring that the jury as a whole performs its duty untainted from influences outside the trial. The goal is to eliminate inadvertent misbehavior and reduce intentional misconduct as much as possible. Clear instructions, reducing temptation, motivating, and empowering jurors are steps toward the goal.
How to Minimize Juror Misconduct During Voir Dire
Both sides suffer from trying a case twice when a jury member has intentionally withheld information that would have resulted in either a cause or peremptory challenge. Worse yet, the misinformation may not be discovered, or if it is, the imperfect system for remedy does not result in a new trial. This is not a new problem, and it continues to occur. We live in a culture in which media figures on one side or another of a cultural debate may incite listeners or viewers to get on juries to achieve their social agenda through their verdict. These potential jurors are coached not to disclose strong feelings they may have about certain subjects even if the lawyers ask about them. Lawyers term such jurors as “stealth jurors” who remain “under the radar” of the lawyers and judge. Certainly, some jurors inadvertently withhold information, a problem that is no less toxic to a fair trial,36 but one for which there are clearer and more direct solutions.
Dealing with the lesser of two evils first, how can trial lawyers and judges prevent, or at least reduce, as much as possible inadvertent nondisclosure? As a start, the judge needs to give the standard instruction which gives the breadth and consequences of responsibility for telling the whole truth by honest answers and not leaving the wrong impression through failing to respond.37 When explaining the voir dire process to jurors, the judge should instruct the venire to make sure that they understand the questions and, if not, to ask for clarification. The venire should be informed that if they have a doubt about whether to disclose something, that they should make the disclosure and let the judge or lawyers sort out whether it is important. Finally, a technique that one judge used in voir dire was to tell jurors:
There is no such thing as “forever hold your peace” in a trial. Even after giving an answer, if something someone else says jogs a memory or a more complete response, tell us about it. This is true any time up to the end of the case and beyond. The accuracy of your answers is that important. For example, we will read you a list of witnesses’ names to see if you know any witness. Let’s say you don’t recognize the name of a witness until the witness appears in trial a couple days from now and you then realize you know the witness. You should tell us then and there to correct your answer.38
This approach does two things: It encourages jurors to correct mistakes in their answers, and it emphasizes the importance of absolute truth in the process.
Trial lawyers can help avoid problems with inadvertent nondisclosure by conducting crisp, pertinent, and thorough questioning. Lawyers who ask unnecessary questions distract and annoy jurors and the judge. This makes it less likely that the judge will be tolerant of extended or somewhat repetitive questioning when the lawyer feels it is necessary. If every juror is polled on general issues (such as “Can you be fair and impartial?”), or on issues the judge has already covered, voir dire will be lengthy, boring, and ineffective. Save individual polling of each juror for the important information. If there is any inkling of a juror missing the point of a question, the lawyer must diligently pursue the matter until it is clear the juror understands the question and is being responsive. Doing less may not only fail to elicit the answer you need to make a challenge, it may eliminate your remedy under the third prong of the De La Rosa test, in which the failure to disclose must not be a result of a lack of diligence on the part of the requesting party.39
Discovering and eliminating a juror who is on a mission is an art for trial lawyers, as they must look for subtle clues and inconsistencies to ferret out what the juror will not tell them. The judge can be of assistance in this difficult task in a number of ways. First, a juror may be more forthcoming if questions are coming from the judge rather than the lawyer (whom a juror may tacitly dislike and distrust). For example, if the issue is how a juror feels about personal injury attorneys or lawsuits, the juror may be more inclined to discuss the issue when the judge asks the questions, especially if the judge is asking the question of the entire panel with followup when some jurors give their honest response.40 Depending on the judge, lawyers may request that certain sensitive questions be put to jurors, at least at first, by the judge.41 This subject should be discussed and resolved at the pretrial conference.
Second, the judge must give the lawyers sufficient time in voir dire to deal thoroughly with weighty issues. Lawyers can help the judge make the right decision on time allotted by not wasting time, by clearly expressing far enough in advance why a certain amount of time is needed for voir dire, and by requesting additional time during voir dire as soon as unexpected complications arise. If the judge is going to limit time in voir dire, the limits must be reasonable and should preferably be announced at the pretrial conference.42
Finally, in the interest of a fair trial, the judge and lawyers need to be cognizant of incongruent behavior or responses with regard to key issues. Uncovering, or even sensing, answers that do not square with other responses, or behavior such as facial expressions inconsistent with answers to certain questions or cooperation with one attorney and hostility toward another should lead to further questioning and, if necessary, a peremptory challenge. If the behavior is acknowledged for the record by the judge, request a challenge for cause or an additional peremptory challenge.43
Another approach during voir dire is for the trial lawyer to remind the jurors what the judge said in the beginning about truthfulness, the consequences of untruth, and the fact that an incomplete answer or lack of an answer can be just as much of an untruth as a false answer. If necessary, the trial lawyer can inform jurors that whoever loses in the case will investigate the answers given by the jurors to see if they were truthful. This seems drastic, but it may get some jurors’ attention. The only question is whether the lawyer believes the downside of telling the juror about post verdict investigation will do more harm with the jurors as a whole than it will help eliminate a less than truthful juror.
Regardless of the care taken by the judge and the trial lawyers, stealth jurors with coaching or knowledge of how to avoid giving answers that will cause them to be taken off the panel may make it to the jury. For that reason, some lawyers inform jurors that each one of them has a duty not to be influenced by anything outside the evidence in the case. They encourage the jurors to disclose any improper conduct of fellow jurors when it occurs, including information about a juror that they may learn is not consistent with what the juror said in voir dire. Again, this is drastic. Whether it is worth the risk is up to the lawyer. If it draws an objection, some judges may not like the way the message is delivered, if not the underlying message. One can always discuss the issue with the judge first.44
Planning for Success
By now it should be clear that the authors consider addressing juror misconduct to be a team affair involving the lawyers and the judge. Lawyers should find out about the judge’s propensities and preferences in advance from colleagues and by raising specific issues on the subject at the pretrial conference. Prepare requested jury instructions in advance and ask the judge to be proactive in heading off potential misconduct. Trial lawyers and judges should share methods that work and should warn of those that do not, both informally and in judicial and continuing legal education conferences. Failure to consider and adapt to the evolution of cultural and technological impacts on juror behavior risks your case being one of the examples of unnecessary injustice and cost.
Because juror misconduct threatens the fundamental fairness of a trial and is a due process issue, judges and trial lawyers should consider methods supplemental to the current standard and routine jury instructions throughout the trial. Practical methods to reduce juror temptation, such as taking away cell phones and other digital devices during deliberations, are needed in light of the current culture and technology that constantly connect jurors to other people and the Internet. Clear, strong instructions with follow up and reminders from the judge and the lawyers that clearly define right from wrong and disclose the consequences to jurors are part of the solution to reduce as much misconduct as possible. While the standard instructions are being considered for revision, judges and lawyers must be attuned to ways to minimize intentional or unintentional behavior which, left unchecked and unaddressed, will undermine fairness of jury trials. Judges and lawyers who learn better ways to address these issues should share them with the common goal of eliminating as much juror misconduct as possible from trials.
1 For purposes of this article, juror misconduct is intentional or unintentional behavior by jurors in contravention of jury instructions, including 1) exchanging information about the case with persons or sources outside the courtroom or jury room, or 2) providing misinformation or disinformation during voir dire.
2 Miami v. Bopp, 158 So. 89 (Fla. 1934) (order granting new trial affirmed where jury verdict was influenced by consideration of matters outside the evidence brought about by unlawful and illegal means).
3 See Keene Bros. Trucking, Inc. v. Pennell, 614 So. 2d 1083, 1084 (Fla. 1993) (juror who was an accountant brought an accounting textbook into jury room and referred to it during deliberations resulting in a mistrial).
4 See Fla. R. Crim. P. 3.370.
5 If jurors are to be sequestered, the pool of available jurors decreases substantially, and those who participate tend to develop personal problems that lead to departure from the jury, increasing the chances of a mistrial. Change in our culture caused sequestration to fall into disuse in Florida civil cases and elsewhere. In Arizona, for example, a court committee on jury management found that no one could remember sequestration occurring in the past 20 years. See Arizona Judicial Branch, Guidelines for Sequestration of Jurors, http://www.supreme.state.az.us/jury/Jury2/jury2n.htm#. Sequestration has fallen into disfavor because the disadvantages outweigh the advantages. Sequestration, American Judicature Society, http://www.ajs.org/jc/juries/jc_privacy_sequester.asp, citing Marcy Strauss, Sequestration, 24 Am. J. Crim. L. 63 (1996). But see State ex rel. Miami Herald Pub. Co. v. McIntosh, 340 So. 2d 904, 910 (Fla. 1976) (“inconvenience suffered by jurors who are sequestered to prevent exposure to excluded evidence which may be published in the press is a small price to pay for the public’s right to timely knowledge of trial proceedings guaranteed by freedom of the press”).
6 Douglas L. Keene & Rita R. Handrich, On-line and Wired for Justice: Why Jurors Turn to the Internet, 21 The Jury Expert 14 (2009), available at http://www.astcweb.org/public/publication/article.cfm/1/21/6/Why-Jurors-Turn-to-the-Internet. For some jurors, staying in constant touch with family, friends, and thousands of strangers may be a habit. A great many jurors have mobile research and communication capability that was only a few years ago available only from fixed facilities.
7 In 2006, the Florida Supreme Court approved changes to the Standard Jury Instructions in Civil Cases adding the words “including the Internet” to prohibitory language regarding research in Preliminary Instruction 1.1. In re Standard Instructions in Civil Cases, 943 So. 2d 137 (Fla. 2006). However, Instruction 1.1 is not given until after voir dire is completed and the jury is empanelled and does not specifically address all the current methods of improper communication. The Civil Standard Jury Instructions Committee recently formed a subcommittee to consider additional changes to address the apparent increase in improper juror communication and research. Meanwhile, judicial education and common sense have led judges on their own to exercise their discretion to develop more specific and detailed instruction for jurors on improper communication and research. See endnotes 33-34.
8 Alana Roberts, Mistrial Declared Over Witness Texting, Daily Business Review, May 15, 2009, available at www.dailybusinessreview.com/Web_Blog_Stories/2009/May/Witness_texting.html. According to the article, the witness’ boss was in the courtroom when the texting occurred, and the boss admitted to texting the witness twice. After declaring a mistrial and holding further hearing, the trial judge dismissed the case with prejudice and awarded fees and costs to the defendant as a sanction for the party’s intentional misconduct of witness tampering. See the unpublished Order Granting Defendant’s Motion to Dismiss and Motion for Attorney’s Fees and Costs, Case No. 07-32308-CA06 (Fla. 11th Jud. Cir. August 11, 2009) (Silverman, J.).
9 Russo v. Takata Corp., 2009 SD 83 (S.D. 2009). In Takata, a trial judge’s order granting a new trial was upheld by the state supreme court. A juror looked up the defendant manufacturer on Google after receiving juror summons, but before voir dire. During deliberations, the juror informed five other jurors that he had Googled the corporation and did not find any prior lawsuits against defendant.
10 John Schwartz, As Jurors Turn to the Internet, Mistrials are Popping Up, N.Y. Times, Mar. 18, 2009, available at http://www.nytimes.com/2009/03/18/us/18juries.html. The juror reportedly told his Internet readers that a “big announcement” was coming up Monday.
11 The Florida Bar v. Heller, 473 So. 2d 1250, 1252 (Fla. 1985) (Boyd, C.J. concurring). Chief Justice Boyd described the following “shocking” undisputed jury misconduct during an underlying criminal jury trial: “1) During the trial, several of the jurors made comments showing a substantial anti-Semitic bias. These jurors ridiculed respondent, his attorney, and several of his witnesses because they were Jewish. One of the jurors made a comment using words to the effect that respondent was ‘a rich Jew. I say let’s hang him.’ There were other comments like this, including not only ethnic slurs against Jews but also anti-black racial slurs. 2) Not only did the jurors improperly discuss the facts of the case before hearing all the evidence, but they also expressed their opinions about guilt-or-innocence before hearing all the evidence. The facts alleged by respondent raise a strong inference that the jury prejudged his guilt, in large part because of the religion-based antipathy referred to above. 3) One juror consulted an accountant, a complete stranger to the case, on a question of accounting practice which the juror thought was relevant to the issues, received an answer and reported the extraneous information to the other jurors. There is no way of knowing how this highly improper information affected the jury’s deliberations.”
12 John Schwartz, As Jurors Turn to the Internet, Mistrials are Popping Up, N.Y. Times, Mar. 18, 2009, available at http://www.nytimes.com/2009/03/18/us/18juries.html.
14 See Hoenig, Juror Misconduct on the Internet, New York L. J. (October 9, 2009), in which the author notes that juror forays to the Internet are a “growing phenomenon” of unknown magnitude because post-trial interviews are generally forbidden or discouraged.
15 Fla. R. Civ. P. 1.530; Fla. R. Crim. P. 3.600. De La Rosa v. Zequeira, 659 So. 2d 239 (Fla. 1995) (nondisclosure of prior litigation by juror during voir dire merits new trial); State v. Matzov, St. Petersburg Times, August 5, 2009 (mistrial declared in murder trial after jurors admitted discussing evidence).
16 Kelly v. The Comm. Hosp. of the Palm Beaches, Inc., 818 So. 2d 469, 476 (Fla. 2002).
17 The ethical and procedural rules for post-verdict interviews of jurors must be strictly followed. Fla. R. Civ. P. 1.431(h); Fla. R. Crim. P. 3.575; Rules of Professional Conduct 4-3.5(d).
18 Fla. Stat. §90.607(2)(b) (2009) (“Upon an inquiry into the validity of a verdict or indictment, a juror is not competent to testify as to any matter which essentially inheres in the verdict or indictment.”).
19 Baptist Hosp. of Miami v. Maler, 579 So. 2d 97, 100 (Fla. 1991).
20 Kelly, 818 So. 2d at 474.
21 Id. at 475.
22 “You [will take] [have taken] an oath to answer all questions truthfully and completely and you must do so. Remaining silent when you have information you should disclose is a violation of that oath as well. If a juror violates this oath, it not only may result in having to try the case all over again but also can result in civil and criminal penalties against a juror personally.” Fla. Std. J. Inst. 1.0. Not all judges give the standard instruction. Pursuant to Fla. R. Civ. P. Form 1.985, the parties are entitled to the standard instruction if requested, and if the judge fails to give the standard when requested by a party, the judge must make a finding on the record why the standard instruction was not adequate for the given case and the legal basis for the finding. It would be unusual for a judge to refuse to give the standard instruction. The standard instruction is entirely consistent with the law of juror misconduct. “It is the duty of a juror to make full and truthful answers to such questions as are asked him [on the voir dire], neither falsely stating any fact nor concealing any material matter, since full knowledge of all material and relevant matters is essential to the fair and just exercise of the right to challenge either peremptorily or for cause. A juror who falsely misrepresents his interest or situation, or conceals a material fact relevant to the controversy, is guilty of misconduct, and such misconduct, is prejudicial to the party, for it impairs his right to challenge.” Loftin v. Wilson, 67 So. 2d 185, 192 (Fla. 1953).
23 See Rule 2.51, Michigan Court Rules (amended June 30, 2009). The Supreme Court Florida Standard Jury Instruction Committee (Civil) is undertaking the task of modifying the standard instructions to address the issues raised in this article.
24 Jurors often believe that one or another of the parties is trying to keep important evidence out of the case and that they are not being told the “real” truth.
25 Amy Posey & Lawrence S. Wrightsman, Trial Consulting at 145 (Oxford Univ. Press 2005).
26 Judge Kest in Orlando reported to the authors that he alleviates the problem of witnesses accessing information on the stand (endnote 8) by requiring witnesses to leave cell phones and communication devices on a small table just inside the bar as they approach the witness stand.
27 “You cannot obtain any information on your own about the case or about anyone involved in the case, from any source whatsoever, including the Internet….” Fla. Std. J. Inst. 1.1.
28 In re Std. Jury Inst. in Civil Cases, 943 So. 2d 137 (Fla. 2006).
29 This year while on jury duty, TV weatherman Al Roker tweeted his jury duty experience to others, including pictures of fellow jurors. Roker said he did not realize he was doing wrong. Dareh Gregorian, Oh What a Twit: Tweeting Roker Sorry for Taking Juror Pix, The New York Post, May 29, 2009, available at http://www.nypost.com/p/news/regional/oh_what_twit_orPeW3RKHabFGbsbXOYCXI.
30 As part of their “plain English” initiative in jury instructions, California now has the following instruction on the subject of juror communications with others during trial: “Before we begin, I need to explain how you must conduct yourselves during the trial. Do not allow anything that happens outside this courtroom to affect your decision. During the trial, do not talk about this case or the people involved in it with anyone, including family and persons living in your household, friends and co-workers, spiritual leaders, advisors, or therapists. Do not post any information about the trial or your jury service on the Internet in any form. Do not send or accept any messages, including e-mail or text messages, to or from anyone concerning the trial or your service. You may say you are on a jury and how long the trial may take, but that is all.” CACI Instruction 100.
31 Other states have taken or are considering action to address this problem. In an administrative order issued June 30, 2009, the Michigan Supreme Court ordered trial judges, beginning September 1, 2009, to tell jurors not to improperly use electronic devices during an ongoing trial. MCR 2.511. As a result of an opinion by the Indiana Supreme Court discussing the use of a cellular telephone by a juror during deliberations, the Indiana Judicial Conference’s jury committee is drafting a rule limiting jurors’ use of electronic devices while deliberations are occurring. Miami Herald, July 31, 2009.
32 On October 15, 2009, the Standard Jury Instructions Committee (Civil) voted unanimously to recommend to the Supreme Court new standard instructions on communication and research misconduct at various stages of the proceedings, and further to recommend that the potential jurors receive such instruction in the jury assembly room. The Florida Supreme Court has the authority to direct that all potential jurors receive instruction on these subjects in the jury assembly room before they are sent to courtrooms to head off research or communication prior to receiving instructions in the courtroom. Instruction in the courtroom can build on information provided in the jury assembly room.
33 Fla. R. Civ. P. Form 1.985.
34 Judges Lucy Chernow Brown and John Kest have been giving more detailed instructions about use of the Internet and the telephone. Judge Brown informed the authors that she instructs jurors they are not to talk to anyone about the case or the lawyers or parties in person, by phone or by tweeting, blogging, texting, e-mailing, writing, or any other method of communication, and they are not to do research or look up anything in books, papers, or on the Internet. Judge Kest provided the authors with a copy of his instruction: “I know that most, if not all of you, have cell phones and that many of those cell phones have computer access. I also suspect that most of you are computer literate — certainly much more than I am. I have cautioned you not to do an independent research and that your verdict must be based on the facts you hear in this courtroom from the witness box and the evidence. Let me extend that caution. You are not to conduct any independent research on computers, your cell phones, or in any other manner. Not the old fashioned kind in encyclopedias, or the newer methods of ‘googling’ and ‘tweeting’ on your computer-based research tools. Lastly, you have been advised not to discuss this case with anybody except your fellow jurors and then only when you retire at the conclusion of the case to deliberate. Therefore, you must not e-mail or otherwise electronically contact other people about this case nor seek their opinions, advice, or even thoughts on the issues before you.”
35 There are a number of ways to handle the situation of a juror who admits hearing or reading something. The juror should be questioned further out of the hearing of other jurors to determine if a curative instruction or dismissal from the jury is required or if it is best to ignore the event if it is trivial. The judge and lawyers should confer on the approach and the exact wording to jurors to hopefully develop a measured response to the threat. If appropriate, use the experience to educate the juror or the entire jury on the need to carefully avoid outside influences.
36 Brenal v. Lipp, 580 So. 2d 315, 316-317 (Fla. 3d D.C.A. 1991) (“Although the juror did not intend to mislead plaintiffs’ counsel, the omission nonetheless prevented counsel from making an informed judgment — which would in all likelihood have resulted in a peremptory challenge.”).
37 See Fla. Std. J. Inst. 1.0, which reads in part: “You have taken an oath to answer all questions truthfully and completely and you must do so. Remaining silent when you have information you should disclose is a violation of that oath as well. If a juror violates this oath, it not only may result in having to try the case all over again but also can result in civil and criminal penalties against a juror personally.”
38 This language was used by circuit judge (ret.) Ralph Artigliere in criminal and civil trials.
39 De La Rosa, 659 So. 2d at 241.
40 Typical follow up might be: “Is there anyone else who feels the same as Mr. ____?”, or “Does anyone else have strong feelings about this subject?”
41 The lawyer has the added advantage of not being a lightning rod for contempt by the juror being questioned or others due to sensitive subject matter.
42 Carver v. Niedermayer, 920 So. 2d 123, 125 (Fla. 4th D.C.A. 2006) (holding that “even reasonable limits on juror selection should be made known some fair time before trial begins”).
43 Judges should grant a challenge for cause if there is even a reasonable doubt as to veracity or fairness of a juror. “[I]f there is a basis for any reasonable doubt as to any juror’s possessing that state of mind which will enable him [or her] to render an impartial verdict based solely on the evidence submitted and the law announced at the trial[,] he should be excused on motion of a party, or by [the] court on its own motion.” Tizon v. Royal Caribbean Cruise Line, 645 So. 2d 504, 506 (Fla. 3d D.C.A. 1994). However, some judges may be more willing to grant a peremptory challenge to each party to remedy a situation where the literal responses by the juror in the record do not facially rise to a basis for granting a challenge for cause.
44 When there is suspicion about a juror’s motives which persists through the trial of the case, lawyers should consider mentioning in their closing argument that jurors should feel empowered now to do all the things a jury does as well as they can: “studying the evidence, discussing it, considering the testimony, weighing and evaluating thoughtfully and thoroughly…” and including a reminder that they must “police themselves” during deliberations. The key problem behaviors discussed above should be detailed, and the jurors reminded that any attempt to use information improperly gained outside of the evidence from research or other sources, displays of prejudice, “stealth” jurors revealing their true intentions to the other jurors, etc., needs to be reported to the judge.
Ralph Artigliere graduated with honors from the U.S. Military Academy at West Point and high honors from University of Florida Law School. After 24 years as a civil trial lawyer and seven years as a circuit judge in the 10th Judicial Circuit in Bartow, Artigliere is now retired from the bench but continues to teach judges and lawyers and write on the law. Artigliere was Florida Bar Board Certified Lawyer of the Year in 2007 and The Florida Bar’s 2006 Hoeveler Award recipient for judicial professionalism.
Jim Barton is a circuit court judge in Hillsborough County, currently serving in the civil division as administrative judge. He received his undergraduate degree from Tulane University and his law degree from Vanderbilt University. He is the vice chair of the Supreme Court Committee on Standard Jury Instructions in Civil Cases.
Bill Hahn is an AV-rated, board-certified civil trial lawyer in sole practice with the firm of William E. Hahn, P.A., in Tampa. Since his admission to the Bar in 1972, his practice has involved the trial of complex personal injury matters first for the defense, and now for the plaintiff. He was elected the 2009 Plaintiff’s Trial Lawyer of the Year by the Florida chapters of the American Board of Trial Advocates (FLABOTA), a national, invitation-only organization of both plaintiff and defense attorneys.