Improper Jury Discussions
Defendant's Failure to Testify:
State v. Furutani,
873 P.2d 51 (Haw.
1994)
Circuit court's grant of new trial in case
involving theft and failure to report income was affirmed because jurors discussed the
defendant's failure to testify, making remarks that indicated they believed if he was
innocent he would have testified on his own behalf and try to "prove his innocence."
Reyna v. State,
846 S.W.2d 498 (Tex. Ct.
App. 1993)
Aggravated sexual assault
conviction was reversed and remanded for a new trial because jurors discussed the
defendant's failure to take the stand and four jurors presented affidavits admitting that
they "took into consideration" the fact that defendant did not testify. While six affidavits
indicated no reference to such discussions, the court found that these affidavits did not
rebut the four affidavits admitting the discussions took place.
People v. Perez,
6 Cal.Rptr. 2d 141 (Cal. Ct.
App. 1992)
Conviction for assault with a
deadly weapon and possession of a deadly weapon by a prisoner was affirmed as
modified and remanded for a hearing when juror affidavit was presented which stated that
all of the jurors had discussed the defendant's failure to take the stand. The court of
appeals ruled it was error to deny the defendant's motion for a new trial because the
factual scenario presented was one that established jury misconduct and a hearing should
have been held.
Smith v. State,
530 S.W.2d 827 (Tex. Crim.
App. 1975)
Conviction for murder and
twenty year sentence were reversed and remanded for a new trial because of unrebutted
juror testimony that the jurors discussed the defendant's failure to take the stand and
concluded that meant he must have been guilty.
Defendant's Prior
Bad Acts :
United
States v. Keating ,
147
F.3d 895 (9th Cir. 1998
)
Federal conviction of Savings & LoanL owner Charles Keating
reversed and new trial granted because jurors knew of, or became aware
of, his state court conviction on related charges.
Jeffries v.
Wood,
114 F.3d 1484 (9th Cir.
1997)
Writ of habeas corpus granted in capital case where juror informed
other jurors of defendant's prior armed robbery conviction; court holds
that improper communication need not come from source outside jury to
require reversal.
U.S. v.
Swinton,
75 F.3d 374 (8th Cir.
1995)
Case remanded for hearing where juror contacted judge after trial to
say that another juror informed panel during deliberations of
defendant’s prior criminal record.
Lawson v. Borg,
60
F.3d 608 (9th Cir. 1995)
Grant of writ of habeas corpus affirmed.
Appellant was convicted of murder with special circumstance of attempted
robbery and he was sentenced to life without parole. The court found
that jury misconduct had occurred in that a juror told other jurors that
the defendant was "very violent" and "had a violent temper." The court
noted that this information directly related to the special circumstance
issue of force, as the defendant claimed that he was collecting on a
debt and the jury then had to assess whether he had used excessive force
in doing so before they could find the special circumstance of attempted
robbery.
United States v.
Aragon,
962 F.2d 439 (5th Cir.
1992)
Jurors in drug conspiracy case were exposed to prejudicial news
article detailing defendant’s prior criminal record; district court
denial of defendant’s request to poll jury to determine article’s
prejudicial effect was reversible error.
United States v.
Howard,
506 F.2d 865 (5th Cir.
1975)
Hearing required in criminal case where juror told others that
defendant had been in trouble before.
Benjamin v.
Fisher,
248 F. Supp. 2d 251 (S.D.
N.Y. 2002)
Jury's inadvertent exposure to and consideration of inadequately
redacted portion of police report detailing defendant's prior robbery
arrests and probationary status, in prosecution for burglary and
robbery, was prejudicial.
Guam v.
Castro,
2002 WL 31663293 (Guam
Terr. Nov. 27, 2002) (unreported)
New trial for manslaughter properly granted where jurors received
information about prior manslaughter charge of defendant’s from print
and televised news and from coworkers.
State v.
Kier,
2001 WL 1463810 (Nov. 19,
2001) (unpublished)
Robbery case remanded where one juror told others that defendant had
criminal history and trial court did not conduct adequate
investigation.
Chew v. State,
804 S.W.2d 633 (Tex. Ct. App. 1991)
Rape conviction reversed and
remanded for a new trial when juror discussed other similar charges were pending against
the defendant. Jurors were also exposed to an unintroduced exhibit documenting the
complainant's unwillingness to testify due to media harassment.
Dumas v.
State,
491 So.2d 1083 (Ala. Crim. App.
1986)
Conviction reversed where juror discussed fact that he had known
defendant since he was young, that defendant had always been a "bad boy"
and that he believed the killing was for revenge.
State v. Poland,
645 P.2d 784 (Ariz. 1982) (en banc)
Capital case. Two brothers'
convictions for first degree murder and death sentences were reversed and remanded for
a new trial because jurors discussed federal charges against the defendant which related
to same series of events leading to the state charges.
State v. Steinmark,
266 N.W.2d 751 (Neb.
1978)
District court ruling denying motion
for a new trial was overruled and the cause remanded for an evidentiary hearing because
juror affiant alleged that in finding defendant guilty of a drug offense the jury discussed the
defendant's prior conviction, prison sentence and reputation of the Bar where defendant
worked as being a place where illegal drugs were readily obtained.
Commonwealth v.
Fidler ,
385 N.E.2d 513
(Mass. 1978
)
Hearing was granted on the issue of jury misconduct in a case
involving a kidnaping conviction because juror stated that the defendant
had been shot at one month prior to the case.
Personal Expertise or
Experience
Burton v.
Johnson,
948 F.2d 1150 (10th Cir.
1991)
Habeas relief granted in murder case involving battering and abuse
issues, where juror did not acknowledge own sexual abuse during voir
dire; defendant had asked for and been denied individually sequestered
voir dire on issue; juror then discussed own experiences with other
jurors. Habeas court refused to accord presumption of correctness to
state court findings.
Mach v. Stewart,
129 F.3d 495 (9th Cir. 1997)
Not strictly speaking jury misconduct, but
an instructive case: trenchant comments on voir dire of a social worker who claimed
knowledge of psychology and of sexual abuse held to have tainted the rest of the jury pool
and resulted in reversal of conviction for sexual conduct with a minor.
Hard v. Burlington Northern R.R.,
812 F.2d 482 (9th Cir.
1986)
FELA negligence action
was reversed and remanded. The court held that the lower court erred in failing to hold
an evidentiary hearing when juror affidavits and voir dire testimony indicated possibility of
dishonesty. The court also remanded the case for a hearing because of one juror's
statements concerning the railroad's settling practices, which constituted the introduction
of an extraneous influence.
United States v. Perkins,
748 F.2d 1519 (11th Cir. 1984)
Criminal case reversed
because juror told other jurors that he knew the defendant and where the witness lived.
Downey v. Peyton,
451 F.2d 236 (4th Cir. 1971)
Habeas corpus petition granted as to
hearing on potential jury misconduct because he alleged that the jury considered extra-record facts and that one juror was prejudiced because he was the jailer's son and the
jailer was beaten during in an escape attempt. The district court was ordered to conduct
a hearing on these allegations.
Cavalier
Metal Corporation v. Johnson Metal Controls ,
124 S.W.3d 122 (Tenn. App. 2003)
In breach of contract case, a new trial was required where a juror
who was a former employee of defendant reported to other jurors her
personal knowledge regarding facts in dispute at trial.
People v. Smith ,
793 N.E.2d 719 (Ill. App. 2003)
On plain error review in a robbery-murder case, a new trial was
ordered where a juror had informed other jurors that the defendant was a
bad person, gang member and drug dealer, that the defendant and the
alleged accomplices knew each other and were in a gang, and that the
accomplice was taller and heavier than the defendant. Prejudice is found
because: (1) gang membership was irrelevant and the trial court had
specifically barred introduction of such evidence; (2) the comments
about the relationship between defendant and the alleged accomplices
could have led the jurors to infer that the men did commit the robbery
together because of their past history; and (3) the remark about
defendant’s physical appearance in relation to an alleged accomplice
could have bolstered a witness’s testimony to the detriment of the
defendant. Although the trial judge attempted to remedy the problem by
dismissing some jurors and conducting an extensive voir dire to ensure
the remaining jurors could remain fair and impartial and decide the case
solely on the evidence introduced at trial, the appellate court was
unable to find no prejudice given the nature of the remarks.
Bureau v.
Gendron ,
837 A.2d 138
(Me. 2003)
In case involving a landlord-tenant dispute, the trial court did not
abuse its discretion by granting a new trial due to jury taint where the
court had dismissed a juror who had told other
jurors that he knew and disliked the defendant and denied defendant’s related mistrial motion. It was proper for the trial court to allow the jury to render a
verdict and then, after giving the evidence of misconduct more thought, to conclude that the
jury had indeed been tainted.
Cunningham v. St. Alexis Hospital Medical
Center, 143 Ohio App.3d 353, 758
N.E.2d 188 (Ohio Ct. App. 2001), discretionary appeals not
allowed. New trial required in
med-mal trial where one juror reported during deliberations and before
the verdict that another juror, who was a nurse, interjecting extraneous
information about standard of care and other medical information. When
informed about the juror’s action, the trial court failed to conduct any
inquiry. The appellate court found that a post-verdict inquiry would be
futile because it would be impossible to ascertain extent of damage done
by the juror’s interjection of extraneous information.
People v.
Flores ,
725 N.Y.S. 2d 655 (N.Y. App. Div.
2001 )
Kidnaping conviction reversed where court officer usurped trial
court’s function by responding to jury’s question about translating
letter from English into Spanish and where one juror provided Spanish
translation never offered in court.
People v.
Maragh ,
729 N.E.2d 701 (N.Y. 2000 )
Defendant was entitled to a new trial where a juror who was a nurse
expressed her expert opinion on a material issue in the case, and that
opinion was distinct from and in addition to the medical evidence
introduced at trial.
Enyart v.
City of L.A. ,
90 Cal. Rptr. 2d 502 (Cal. Ct. App.
1999 )
Civil judgment against the City of Los Angeles reversed where jurors
exhibited bias not acknowledged in questionnaires, including comments
about conduct and veracity of Los Angeles police; jurors shared views
based on own experiences that LAPD regularly "screws over" people and
hides evidence; case remanded for new trial.
McDonald v. Southern Pacific Transportation Co.,
83 Cal.Rptr.2d 734 (Cal.Ct.App. 1999)
In personal injury suit where plaintiff’s truck was hit and damaged
by train, juror, a career transportation consultant, shared evidence
with jury from own experience; reversing judgment, court holds "external
information in the form of a juror’s own claim to expertise or
specialized knowledge of a matter at issue is misconduct."
McDonald v. Southern Pacific Transportation Co.,
83 Cal.Rptr.2d 734 (Cal.Ct.App. 1999)
New trial required where one juror claimed special knowledge of railroad
operations, grade crossings and safety features in personal injury action against railroad.
Diaz v. State,
743 A.2d 1166 (Del.
1999)
Bilingual juror's indication to other jurors
outside of court that she disagreed with court interpreter's translation of foreign language
testimony violated defendant's right to fair trial; juror became unsworn, uncross-examined,
and unqualified witness.
State v. Adams,
727 A.2d 468 (N.J. Super
1999)
Conviction reversed where trial judge
dismissed deliberating juror for telling others that "police often beat accused criminals" and
replaced him with alternate; if comment was reflection of personal belief, juror should not
have been excused; to extent that juror communicated extraneous information about
police practice, entire jury should have been removed and mistrial declared.
Titus v. State,
963 P.2d 258 (Alaska
1998)
Case remanded for further hearing where
all but one juror knew, or knew of, defendant in tiny community and some claimed
personal knowledge that he had been drinking on night of alleged rape.
Frieze v. State,
1998 WL 372735
(unpublished)(Tex. Ct. App. 1998), petition for discretionary review
refused (Feb 24, 1999)
Conviction for indecency with a child
remanded for new trial because jurors agreed to convict only on representation from juror
who was Sheriff's Department employee that defendant would get probation.
State v. Adams,
880 P.2d 226 (Haw. Ct. App. 1994), cert. denied,
884 P.2d 1149 (Haw. 1994)
Second degree assault conviction was reversed and remanded for a new trial
when juror relayed her previous experiences as a sexual assault victim, in essence
explaining why the alleged victim in the case did not defend herself and presenting extra-record evidence. The juror in this case also lied to the court in that, when questioned, she
failed to reveal that she had been a victim of sexual assaults in the past.
Dumas v. State,
491 So.2d 1083 (Ala. Crim.
App. 1986)
Manslaughter conviction
reversed and remanded because a juror discussed the fact that he had known the
defendant as a boy, that the defendant had always been a "bad boy" and that he believed
the killing had been a revenge killing.
State v. Larue,
722 P.2d 1039 (Haw.
1986)
Second degree rape and first degree sexual
abuse convictions were reversed and remanded for a new trial because juror relayed her
own experiences when she was once touched as a child, thereby vouching for the minor
child's testimony.
Young v.
Brunicardi ,
232 Cal.
Rptr. 588 (Cal. App. 1986
)
Negligence judgment reversed where police officer juror presented own experiences on ticketing procedures to
influence jury
Bearden v. State,
648 S.W.2d 688 (Tex. Crim.
App. 1983)
Misdemeanor DUI conviction
was reversed and remanded for a new trial because juror testified that if the defendant
was drinking at bar in question, then the alcohol was consumed in units of "double shots"
and thus defendant's alcohol consumption was twice what he testified to consuming.
Knorp v. State,
645 S.W.2d 892 (Tex. Ct.
App. 1983)
Conviction for official misconduct
was reversed and remanded for a new trial because jurors prematurely discussed the
case, discussed the fact that defendant had taken a loan of $6,000, which was much
greater than the amount of money he was formally charged with taking and defendant was
separated from his wife.
Hatton v. Highlands Insurance Co.,
631 S.W.2d 787
(Tex. Ct. App. 1982)
Worker's
compensation judgment was reversed and remanded for a hearing on a new trial because
jurors discussed insurance coverage not in evidence.
Cross v. State,
627 S.W.2d 257 (Tex. Ct.
App. 1982)
DUI conviction was reversed and
remanded because of juror's discussion of the prison's rehabilitation facilities. The
appellate court held it was error for the trial court to have denied the appellant's motion
for a hearing on his new trial motion which was supported by two affidavits.
Lumbermens Mutual Casualty Co. v. Cummings,
618
S.W.2d 883 (Tex. Civ. App. 1981)
Worker's compensation judgment was reversed and the causes remanded for a
new trial because jurors discussed their own personal experiences with back problems.
Elston v. Sherman Coca-Cola & Dr. Pepper Co.,
596 S.W.2d 215 (Tex. Civ. App.
1980)
Negligence judgment reversed and the cause remanded for a new trial because
jurors discussed their own work experiences and these discussions had an affect on the
award for loss of future earnings.
Vincent v. Goodman,
568 S.W.2d 907 (Tex. Civ.
App. 1978)
Suit over oral contract
was reversed and remanded for a new trial because jurors discussed their own personal
experiences with having wells drilled and, as a result, several jurors changed their votes.
State v.
Steinmark ,
266 N.W.2d 751
(Neb. 1978)
District court ruling denying motion for new trial overruled and
evidentiary hearing ordered because jurors considered defendant's prior
conviction, prison sentence and reputation of the bar where defendant
worked as being place where illegal drugs were readily
obtained.
Dunn v. White,
479 P.2d 215 (Kan.
1970)
Grant of new trial affirmed in civil suit
involving personal injury. The court held that the defendant's rights were violated when
jurors discussed issues of insurance coverage, attorney's fees and whether insurance
companies were the actual parties to the suit, rather than the parties.
Bashford v. Slater,
96 N.W.2d 904 (Iowa
1959)
Results of an action at law for damages
caused with an automobile were reversed and the case remanded for a new trial because
jurors discussed impact of liability insurance on the amount the defendant would actually
have to pay, life expectancy and earnings.
Gibbs v. State,
291 S.W.2d 320 (Tex. Crim. App.
1956)
Criminal conviction and
sentence were reversed because, during punishment deliberations, juror remarked to
those jurors wanting to ask for suspended sentence that other jurors wanted defendant
to get forty years, after which the jurors who were originally in favor of a suspended
sentence voted to give defendant some time in the penitentiary.
State v. Malone,
62 S.W.2d 909 (Mo.
1933)
Second degree murder conviction was
reversed and remanded because members of the defense team overheard jurors
remarking on defendant's history of prior legal troubles and one juror remarked that if he
was turned loose, he would get into trouble again.
State v. Lorenzy,
109 P. 1064 (Wash.
1910)
Conviction for "conniving at the prostitution
of his wife" was reversed and remanded because a juror remarked that if other jurors saw
the place where defendant worked "they would find it to be a house of prostitution yet."
Id.
Russ v.
State ,
95 So.2d 594, 600
(Fla. 1957
)
"Where a juror on deliberation [relies on or] relates to the other
jurors material facts claimed to be within his personal knowledge, but
which are not adduced in evidence . . . it is misconduct which may
vitiate the verdict."
Failure to
Deliberate
United States v.
Symington,
195 F.3d 1080
(9th Cir. 1999
)
"[I]f the record evidence discloses any reasonable possibility
that the impetus for a juror's dismissal stems from the juror's views on
the merits of the case, the court must not dismiss the juror." Here,
reversal of the defendant’s convictions is required given that while
there may have been some reason to doubt the dismissed juror’s abilities
to properly serve as a juror, there was also considerable evidence to
suggest that the other jurors' frustrations with her derived primarily
from the fact that she held a position opposite to theirs on the merits
of the case.
United States v.
Thomas,
116 F.3d 606 (2nd Cir.
1997)
"[T]he importance of safeguarding the secrecy of the jury
deliberation room, coupled with the need to protect against the
dismissal of a juror based on his doubts about the guilt of a criminal
defendant, require that a juror be dismissed for a refusal to apply the
law as instructed only where the
record is clear beyond doubt that the juror is not, in fact, simply
unpersuaded by the prosecution's case." Here, the court reverses the
defendant’s conviction finding that "the district court erred in
dismissing a juror, based largely on its finding that the juror was
purposefully disregarding the court's instructions on the law, where the
record evidence raised the possibility that the juror's view on the
merits of the case was motivated by doubts about the defendants' guilt,
rather than by an intent to nullify the law."
United States v.
Brown,
823 F.2d 591 (D.C. Cir. 1987)
If the record evidence discloses any possibility that a juror’s
request for discharge stems from the juror's view of the sufficiency of
the government's evidence, the court must deny the request. Here, the
district court's dismissal of a juror in the midst of the jury's lengthy
deliberations deprived the defendants of their constitutional right to a
unanimous jury.
State v.
Elmore,
90 P.3d 1110 (Wash. App. 2004)
In case involving numerous charges, including murder, the trial court
committed reversible error by dismissing a juror where the record showed
a reasonable possibility that the other jurors’ complaints about the
juror’s alleged failure to deliberate and follow the law stemmed from
the dismissed juror’s views on the merits of the case. The trial court
further erred by intruding into deliberations by further questioning two
jurors about another juror’s conduct after determining that the jurors
disagreed at least in part because of different views on the merits of
the case.
Riggs v.
State,
809 N.E.d 322 (Ind. 2004)
Convictions for murder and criminal deviant conduct are reversed
where trial court removed a pro-defense juror during deliberations even
though the juror represented that he
was trying to fulfill his role as a juror and was making a decision
based on the evidence. The foreman's accounts of the dismissed juror’s
behavior amounted to rudeness and intransigence but there was no record
establishing physical threats, intimidation or other conduct justifying
removal.
People v.
Karapetyan,
130 Cal.Rptr.2d 849 (Cal. App.
2003)
In double murder case, trial court committed reversible error by
dismissing a juror for alleged failure to deliberate. The trial court’s
finding that the juror’s religious beliefs prevented him from making a
decision misstated the evidence adduced during the court’s inquiry into
the complaints made by other jurors. And while the dismissed juror had
expressed concern for penalty, that was not a proper basis for dismissal
since his concern was alleviated once he learned this was not a death
penalty case. Finally, the assertion that the juror refused to follow
the court’s instructions was not supported by the record.
People v.
Barber,
124 Cal.Rptr.2d 917 (Cal. App.
2002)
Murder conviction is vacated and new trial ordered where jury
reported that it was hopelessly deadlocked and trial court then erred
by: (1) questioning jurors in a manner that revealed the identity of the
lone holdout; (2) allowing the prosecutor to examine the holdout juror;
and (3) allowing testimony from only those jurors who claimed the
holdout juror was not deliberating in good faith. The trial court also
erred by finding that the holdout jury committed misconduct in failing
to reveal a prior arrest where the court did not resolve whether the
juror had in fact been arrested in the past, and the court did not find
that the juror’s silence about the matter was intentional.
People v.
Cleveland,
25 Cal.4th 466, 21 P.3d 1225, 106 Cal.Rptr.2d 313 (Cal.
2001).
Trial judge erroneously remove, based on
"failure to deliberate," juror who during deliberations concluded that
evidence was insufficient to convict the defendant, who was being
prosecuted on 2 counts of 2nd degree robbery. The California
Supreme Court held that the removal of a juror who has deliberated and
who simply views the evidence as insufficient was plain error requiring
a new trial for the defendant.
Williams v.
State ,
792 So.2d 1207
(Fla. 2001).
Capital murder defendant granted new trial
because trial court committed reversible error in substituting alternate
juror for juror who declared she was unable to continue with
deliberating because of the stress and pressure involved. In such
situations, the remedy is to grant a mistrial.
People
v. Bowers
,
87 Cal. App.
4th 722 (Cal. App. 2001)
Juror improperly discharged in sex abuse case for alleged failure to
deliberate; juror, who was lone holdout for not guilty verdict, was
replaced with alternate and jury convicted; court finds that had juror
remained on panel, mistrial would have been likely.
Garcia v.
People,
997 P.2d 1 (Colo. 2000 )
"[I]f a trial court interrupts the deliberations of a jury and
suspends its fact finding functions to investigate allegations of juror
misconduct, its inquiry must not intrude into the deliberative process.
. . . [I]n the exercise of judicial discretion, before a juror is
dismissed from a deliberating jury due to an allegation of juror
misconduct, there must be findings by the trial court that support a
conclusion that the allegedly offending juror will not follow the
court's instructions." Here, the conviction must be reversed because the
record failed to show a sufficient inquiry prior to dismissal of a juror
as to whether he was willing to follow the trial judge's instructions
prior to deliberations or during the course of deliberations.