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Colorado Law and Jury Misconduct – Mistrials – Jurors That Lie

By Colorado Criminal Defense Trial Lawyer – H. Michael Steinberg*

Introduction – The critical role of the jury in our criminal justice system cannot be overstated.When a juror deceives the Court and the parties – a question about the impact of those acts on the case being tried must be understood. This article addresses the law and practical impact of this situation and the verdict of the entire jury.

What is Juror Misconduct?

The jury has been hailed as one of the greatest attributes of democracy. Described as a “magistracy” by Alexis de Tocqueville two centuries ago, the jury system affords ordinary citizens the opportunity to participate in the administration of justice. These citizens act as the conscience of the community and provide a bulwark against governmental oppression.

The Constitution guarantees a criminal defendant the right to a jury trial, understood preeminently as the right to a fair trial by an impartial jury.

Juror Bias and Misconduct

The kinds of jury misconduct include the following:

        • contacts by third parties with jurors;
        • exposure by jurors to extra-judicial non-evidentiary materials;
        • efforts by jurors to conduct experiments and reenactments to test the evidence;
        • untruthful statements by jurors during the voir dire;
        • conduct by jurors that evinces bias and prejudgment;
        • physical and mental impairment of jurors;
        • pre-deliberation discussions by jurors;
        • and efforts by jurors to repudiate the trial court’s instructions on the law.

It is the basis for all criminal trials that “the ‘evidence developed’ against a defendant shall ONLY come from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel.”

This protection is violated when third parties engage in private contacts or communications with jurors concerning matters pending before the jury.

Extra-judicial Contact with Jurors

In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror . . . about the matter pending before the jury is deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption of prejudice is not conclusive, but the burden rests heavily upon the Government to establish actions of the juror is harmless to the defendant.

The Judge’s Authority Is To Protect The Jury From Jury “Tampering”

The trial court’s authority to protect the jury from tampering is clear. When a court is informed during the trial that a juror has been contacted by an outside party or has engaged in conversations with a third party about the case, the court has a duty to investigate the matter.

A court should begin the inquiry with “the presumption that the jury is impartial.” However, if a colorable claim of extrinsic influence on impartiality has been made, a court may be obligated to investigate the allegation even in the absence of a defense request.

Extremely Broad Authority

A court is given extremely broad discretion to determine the appropriate way to handle a report of Jury Misconduct. The more serious and credible the allegation, the more extensive investigation would be required.

Pre-Verdict Juror Misconduct

A pre-verdict inquiry generally is preferred. However, there are problems with a formal, pre-verdict inquiry. When the subject matter of the contact involves a threat or a bribe, presumably by a person associated with the defendant, questioning jurors before the verdict may so focus their attention on the defendant’s conduct that a jury otherwise capable of delivering an impartial verdict may no longer be able to do so.

Post – Verdict Juror Misconduct

When the allegation of an improper contact is made after the verdict, different considerations come into play. Courts are naturally reluctant “to ‘haul jurors in after they have reached a verdict in order to robe for potential instances of bias, misconduct, or extraneous influences. “” Courts also are justifiably concerned that post-verdict inquiries may inhibit jury-room discussions, deter jurors from returning an unpopular verdict, subject jurors to harassment, or burden courts with frivolous and time-consuming applications.

By creating uncertainty in jury verdicts, the policy of finality is jeopardized. Finally, the inadmissibility of juror testimony to impeach a verdict renders a factual determination of jury taint much more difficult.

When the investigation into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent or to dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.

Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

A court considers several factors in determining whether juror misconduct has occurred … including:

          • the nature and seriousness of the communication,
          • whether the extrinsic communication was shared with other members of the jury,
          • the manner in which it was discussed,
          • the length of time it was available to the jury,
          • whether the communication related to factual evidence not developed at the trial,
          • whether it was disseminated before the verdict or during deliberations,
          • and
          • whether the communication was reasonably likely to influence the verdict, especially in light of the strength of the government’s case.

The ultimate legal question for the court is whether there is a reasonable possibility that the extra-judicial contact could have affected the verdict. If a court chooses not to apply a presumption of prejudice, then the court would evaluate the severity of the suspected intrusion, and only if the court determines that prejudice is likely would the government be required to prove its absence.

A jury’s exposure to extraneous information not presented as evidence in the courtroom can contaminate a verdict as readily as third-party contact. When such extrinsic information relates to a material issue in the trial, it can seriously impair a defendant’s right to a fair trial and an impartial jury.

The nature of extra-judicial information to which jurors have been exposed ranges from the very prejudicial to the insignificant.

Jurors also may acquire extraneous information relating to the facts of the case or the meaning of certain legal principles by engaging in extra-judicial research. A juror’s acquisition of extra-judicial, non-evidentiary knowledge, particularly when the juror disseminates the information to the other jurors, may produce sufficient prejudice to require reversal. Moreover, the ready accessibility of the Internet makes such research not only easy, quick, and extremely informative, but also potentially highly prejudicial.

The Impact of The Internet

Recognizing the problems created by the availability and widespread use of the Internet, the court instructed trial judges to emphasize to jurors that they “should not consult the Internet or any other extraneous materials” during the trial and deliberation.

As in the previous section, the court’s determination of whether a juror’s exposure to extraneous information may have tainted the verdict may require the use of a presumption of prejudice. A jury is presumed to be impartial.

However, when a sufficient showing is made that jurors have been exposed to extrinsic evidence, some courts will apply a presumption of prejudice, particularly when the extraneous information is of a very serious nature.

Exposure to Mid Trial Publicity

Exposure to mid-trial publicity ordinarily is not considered sufficiently serious to require a court to presume prejudice. Nevertheless, if a court learns during the trial that jurors have been exposed to extraneous information about the trial, the court is required to conduct an appropriate inquiry, including an evidentiary hearing when necessary, to determine whether jurors were tainted by the exposure.

Experiments and Re-enactments

Jurors do not live in capsules. It is not expected that jurors should leave their common sense and cognitive functions at the door before entering the jury room. Nor is it expected that jurors should not apply their own knowledge, experience, and perceptions acquired in the everyday affairs of life to reach a verdict.

However, a juror’s procurement of new knowledge gained through extra-judicial means may contaminate the deliberations and upset the verdict. The line between the two sources of information, needless to say, is not easily drawn.

Ordinary Life Experiences

Courts are much more likely to recognize as appropriate a juror’s knowledge gained from ordinary life experiences. For example, there is no impediment to a juror’s knowledge gained from personal experience that a particular neighborhood is busy all night, drawing a map to show the location of buildings in a certain area, or describing a person’s ability to make an accurate identification from a moving automobile.

These mental processes involve no more than the application of everyday observations and common sense to the factual issues in the trial. By the same token, the application by a juror, trained as a professional engineer, of his technical knowledge of physics to refute an opinion offered by a defense witness may be permissible.

By contrast, a juror’s deliberately contrived investigation or experiment that relates to a material issue in the trial ordinarily undermines the integrity of the verdict. Acquiring relevant factual information in this manner puts the jury in possession of evidence not presented at the trial and not subjected to confrontation and cross-examination.

The same principle that forbids jurors from acquiring specialized knowledge through extra-judicial means also accounts for the prohibition against jurors making unauthorized visits to locations described in the trial testimony.

The distinction between the proper use of everyday acquired knowledge to evaluate the evidence and the improper procurement of specialized knowledge to test the evidence often may be tenuous.

Re-enactments In The Jury Room – Twelve Angry Men

Re-enactments in the jury room based on the jury’s recollection of the testimony are usually allowed as an application of the jury’s common sense and deductive reasoning to determine the truth of the facts in dispute. The re-enactments by jurors portrayed in the classic film Twelve Angry Men illustrate the use of critical analysis by jurors of the evidence based on their knowledge and experience.

One of the re-enactments in the film involved a juror who, based on his experience as an adolescent familiar with the use of a switchblade knife, described the manner in which a switchblade knife ordinarily would be opened and thrust outward, thereby contradicting a key theory of the prosecution. Another re-enactment in the film portrayed a juror simulating the time it would take for an elderly, crippled witness to go from his bedroom to the door of his apartment in order to determine whether the witness’s estimate of the time it took to travel the distance – a critical issue in the trial – was accurate and believable.

Improper Re-enactments

However, if the re-enactment is not merely a more critical analysis of the evidence but puts the jury in possession of extraneous information that might be based on flawed and irrelevant conclusions, the re-enactment may be found improper.

The Sixth Amendment and the Due Process Clause guarantee a defendant the right to an unbiased jury. The voir dire of prospective jurors serves to protect a defendant’s right to an impartial jury “by exposing possible biases, both known and unknown, on the part of potential jurors. Bias of prospective jurors may be actual or implied.

Actual Bias

Actual bias is a bias in fact; implied bias is a bias that is presumed as a matter of law. Actual bias may be established by showing that a juror failed to respond honestly to questions during voir dire and that a truthful response would have provided a valid basis for a challenge for cause.

Bias and Prejudgment

Apart from showing that a juror gave dishonest or misleading answers during voir dire, a party still may be entitled to relief by demonstrating that a juror harbors an actual bias or that a bias may be imputed to the juror based on the juror’s conduct and the surrounding context and circumstances.

The ability to substantiate a claim of bias may be hampered by the rule against impeaching a juror’s verdict, which would probably disallow testimony by jurors concerning negative or inappropriate comments made by a juror during deliberations.

A trial court faced with an allegation of juror bias has a duty to carefully investigate the c1aim. A court has broad discretion to determine the extent and nature of its inquiry into allegations of juror bias.

Physical and Mental Incompetence

A necessary corollary of the right to an impartial jury is the right to a jury in which all of its members are physically and mentally competent. Proof that a juror was mentally impaired, intoxicated, or unconscious would appear to cast grave doubt on the integrity of the verdict.

When such claims are raised during the trial, the judge is in a position to correct the problem and permit the trial to continue. When such claims are raised after the verdict, attempts to take corrective action become much more difficult. As noted earlier, the courts are reluctant to allow a post-verdict inquiry into a juror’s mental state. The rule against admitting juror testimony to impeach a verdict is based on several policy considerations: the need for finality of the process, the interest in encouraging full and frank discussion in the jury room, the interest in encouraging jurors to return an unpopular verdict without fear of community resentment, and the interest in inspiring the community’s trust in a system that relies on the decisions of laypeople.

These interests routinely prevent jurors the court committed reversible error by failing to question all jurors about one juror’s racial comment to the other jurors.

Too Early Deliberations

It is well-settled that jurors are forbidden to discuss the case before they have heard all of the evidence, closing arguments, and the court’s legal instructions, and have begun formally deliberating as a collective body.

Judges routinely admonish juries at the outset and throughout the trial to not discuss the case among themselves prior to deliberations. There are several reasons for this admonition. Premature discussions are likely to be unfavorable to a defendant, incline jurors who expressed opinions prematurely to adhere to those opinions, impair the value of collective decision-making, lack the context of the court’s legal instructions, prejudice a defendant who may not have had the opportunity to present evidence, and benefit the prosecution by reducing the burden of proof.

Courts recognize a distinction between extra-judicial influences on a jury and intra-jury misconduct. External influences completely evade the safeguards of the judicial process, whereas internal violations do not raise the fear that the jury based its decision on reasons other than the trial evidence.

Trial judges are afforded very broad discretion to determine the method for handling claims of internal misconduct discovered during the trial. Courts conducting an inquiry during the trial typically conduct an interview of the jurors collectively or individually with the lawyers present, or interview the jurors outside the presence of counsel. However, when an allegation is made during the trial that jurors discussed the case, a court’s complete failure to evaluate the nature of the misconduct or the existence of prejudice ordinarily is an abuse of discretion mandating a new trial.

Why Jurors Misbehave?

There seems to be little question that some jurors violate the rules, either deliberately or inadvertently, although measuring the extent of these violations is difficult.

Extrapolating from the cases and anecdotal evidence suggests that jurors have infected trials by harboring conscious and latent biases, engaged in conduct in violation of the trial judge’s instructions, given dishonest and misleading answers during voir dire, suffered from physical and mental impairments, been intoxicated and otherwise inattentive, and flaunted the trial court’s instructions. Given the policies that seek to preserve jury verdicts, there is probably no satisfactory way to entirely eradicate the effects of such behavior, particularly after a verdict.

More Active Juries Today

The jury system in several ways encourages jurors to take a much more active role in the trial proceedings. Most jurors use their powers responsibly. Many jurors, however, have engaged in excessive, extra-judicial conduct that has the potential to taint the verdict. Jurors typically are alerted by the trial court that they are allowed to use their knowledge and expertise in sifting the evidence and deciding on their verdict.

Some jurors, however, bent on solving the case or trying to test the evidentiary hypotheses presented to them, may impair the integrity of the verdict. These jurors have abused their function by engaging in extra-judicial investigations and research, in violation of the trial court’s instructions, thereby putting themselves in a position to taint the deliberations with extraneous, non-evidentiary information.

Jurors Going Too Far In The Internet Age

While jurors have the right to use their expertise, jurors do not have the right to conduct their own experiments outside the courtroom to verify the testimony, make unauthorized visits to the places mentioned in and engage in extra-judicial research to ascertain the meaning of legal concepts or acquire extraneous information relevant to the case.

Attempts to remedy the problem of juror misconduct have produced mixed results. When the misconduct is discovered during the trial, the trial court’s ability to remedy the problem is greatest. The court can conduct a searching investigation to determine whether misconduct was committed and the extent of the prejudice. When the misconduct is discovered during deliberations or after the trial, strong public policies usually militate against aborting the trial or upsetting the verdict.

As the courts repeatedly observe, “there are no perfect trials.” As a consequence, however, a verdict of guilt that has been tainted by the misconduct of some jurors may be immune from judicial review, with the consequence that a criminal defendant may have been denied his constitutional right to a fair trial by an impartial jury.

*Attribution for this article is given to Bennett L. Gershman Pace University School of Law, Gershman, Bennett L., “Contaminating the Verdict: The Problem of Juror Misconduct” (2005). Pace Law Faculty Publications. This is but a summary of his fine work.

For a summary of juror misconduct cases – CLICK HERE

H. Michael Steinberg has been a Colorado criminal law specialist attorney for 29 years. For the First 13 years of his career, he was an Arapahoe – Douglas County District Attorney Senior prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases. In addition to handling tens of thousands of cases in the trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations. Please call him at your convenience at 720-220-2277


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
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