What happens if the jury begins to discuss the case before deliberations have started? A recent Second Circuit decision notes some concerns that may arise. The circuit considered a trial judge's failure to investigate allegations that jurors had prematurely discussed substantive matters in the criminal trial as providing a ground for vacating the defendant's conviction and remanding for retrial, in United States v. Haynes, __ F.3d __ (2d Cir. Sept. 5, 2013) (No. 12–626–cr)
Last fall the National Symposium on the American Jury System presented a session focusing on improvement of the jury trial system. One issue on the agenda was: "Should jurors be allowed to discuss the case before deliberation?" The issues under the symposium topic were raised in a criminal case recently considered by the Second Circuit which considered a claim "that the jury deliberated prematurely in violation of the 481 Judge’s instructions not to deliberate until they had heard all the evidence and were instructed on the law".
In the case, defendant Haynes was arrested at the U.S.-Canada border after custom and border officers found nearly 70,000 pills of methamphetamine, estimated to be worth "between $500,000 and $2,100,000," wrapped in plastic and hidden in her rental car gas tank. At trial, the prosecution's theory was that the defendant was a “drug courier.” Her defense was that the defendant was simply a “blind mule” with no knowledge that there were any drugs in her rental car, much less its gas tank. Haynes, __ F.3d at __.
Allegation Of Premature Jury Deliberations
The details of the alleged misconduct were never more than sketchy. The claim arose after defense counsel reported to the trial court that "some women on the jury had said the [the defendant] might be guilty, [because]] she's here." Defense counsel requested the court make an inquiry or at least provide a "curative instruction" or a renewal of the instruction that the court had given that "if there was any discussion about the presumption [of innocence] or anything like that prior to the entry of deliberations, that it be disclosed to the Court." Instead of taking any of these steps, the judge responded that he had already "reminded the jury that [the defendant] is presumed innocent at all times" and that the judge concluded that because there had been "no indication from any juror that there was any inappropriate discussion [the Court would] refrain from questioning the jury at [this] time." The judge would make no inquiry about any premature deliberations. Haynes, __ F.3d at __.
Ultimately the jury returned a verdict of guilty against the defendant and she appealed on several grounds, including that the jurors had prematurely deliberated.
Second Circuit Review
The Second Circuit seemed no more ready to discuss the propriety of the juror's conduct, or the danger of premature deliberations, than did the trial judge. The defendant claimed (1) "that members of the jury were actually biased against the defendant"; and (2) "that the jury deliberated prematurely in violation of the Judge's instructions not to deliberate until they had heard all the evidence and were instructed on the law." In focusing on this second aspect, the circuit noted some of the general principles that applied to the issue:
- Due Process: The circuit noted "that at minimum, '[d]ue process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.'" Haynes, __ F.3d at __ (citing Smith v. Phillips, 455 U.S. 209, 217 (1982)
- Proper Time And Place: "[J]urors must not engage in discussions of a case before they have heard both the evidence and the court's legal instructions and have begun formally deliberating as a collective body." Haynes, __ F.3d at __ (citing United States v. Cox, 324 F.3d 77, 86 (2d Cir. 2003) (quoting United States v. Resko, 3 F.3d 684, 688 (3d Cir. 1993)))
- Disregard Of Instructions: The circuit emphasized that "[w]here the District Court instructs the jury to refrain from premature deliberations, as the Court did in this case, and the jury nevertheless discusses the case prior to the close of trial, that premature deliberation may constitute juror misconduct." The allegation of premature deliberations in this case was exacerbated by the fact that the alternate juror allegedly said that jurors had questioned the presumption of innocence Haynes, __ F.3d at __ (citing United States v. Cox, 324 F.3d 77, 86 (2d Cir. 2003))
Obligation To Investigate
Ironically the trial judge had disposed of the jury deliberation problem not by concluding that it did not occur. Indeed, the judge indicated in his discussions with counsel that the court "conceded that it was not disputing the accuracy of the alternate juror's account" as told to defense counsel. The circuit's criticized the trial judge's failure to make any inquiry into the veracity of the claim by the alternate juror. Instead, he noted that he had "continuously advised that if there were any discussions prior to deliberations, that it should be brought to [the Court's] attention immediately. Because "no juror brought anything like that to [the Court's] attention," it seemed the judge would not depart from the assumption that the jury followed its instructions.
Even though the circuit noted that its standard for review here was whether there was an abuse of discretion, it seemed that the circuit considered it met. As the circuit put it:
Faced with a credible allegation of juror misconduct during trial, a court has an obligation to investigate and, if necessary, correct the problem. . The District Court “has broad flexibility in such matters, especially when the alleged prejudice results from statements by the jurors themselves, and not from media publicity or other outside influences.”
In this case, the trial Court abused its discretion by not conducting any inquiry about what the Court acknowledged might well be an accurate allegation of juror misconduct. Defense counsel asked for further investigation and a curative instruction, but the Court denied both requests. Without ever disturbing the jury deliberations, the Court could have asked the alternate juror what exactly was said and by whom, and then made a determination of what, if any, further investigation was required. Only if the preliminary inquiry produced a specific and credible reason to conduct further inquiries would it have been necessary to pursue further measures. The Court abused its discretion by failing to conduct any inquiry to determine if the allegation of juror misconduct was true.
Haynes, __ F.3d at __ (citing United States v. Peterson, 385 F.3d 127, 133–36 (2d Cir. 2004) (the examination and recusal of an “unbalanced” juror together with satisfactory responses by the remaining jurors as to their impartiality was within the trial court's discretion)); United States v. Cox, 324 F.3d 77, 88 (2d Cir. 2003); United States v. Thai, 29 F.3d 785, 803 (2d Cir. 1994) (internal quotation marks omitted)).
It is not clear that the result in Hayes is any more instructive as dealing with the pre-deliberating jury. On one hand, the circuit implies that there is no advantage to be gained from such a practice. But the case does seem to suggest that a trial court must consider the credibility of reports of juror misconduct. Merely presuming that the jury would not disobey instructions was not sufficient. Nor where, as here, the trial judge could have probed the allegations further without interfering with juror deliberations, not to take such a step would be like shirking one's responsibility. Haynes, __ F.3d at __. While the trial court "abused its discretion by failing to conduct any inquiry to determine if the allegation of juror misconduct was true," the circuit did not discuss the limits under FRE 606, which bars juror testimony "about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment."
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