Not Quite Premature Juror Deliberations Infringing The Right To A Fair Trial

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Eighth Circuit reviews claim that two jurors prematurely deliberated about the case in violation of the Sixth Amendment right to a fair trial; the trial court took appropriate steps to assess the impact and context of the comments resulting in a determination that there was no infringement on the fair trial right, in United States v. Axsom, _ F.3d _ (8th Cir. Aug. 4, 2014) (No. 12-3703)

The Sixth Amendment secures the right to a fair trial which includes that the jury will refrain from deliberating about the facts until the trial is concluded and the case is submitted. A recent Eighth Circuit case required reviewed of whether comments by two jurors constituted premature deliberations.

Trial Court Proceedings: Confirming Juror Impartiality

The defendant was prosecuted and convicted for possessing and distributing child pornography. After trial he filed a motion for a new trial claiming that his Sixth Amendment right to a fair and impartial jury had been compromised by two separate incidents concerning the jurors. In the first incident, during voir dire, "A prospective juror reported that banter between a Court Security Officer and an FBI case agent in the courtroom, while the judge and attorneys were in the jury room conducting individual voir dire, may have affected her outlook about the trial." Defense counsel asked the court to strike the entire panel. Instead, the trial court asked each prospective juror and prior jurors that had already been questioned "whether they were bothered by anything happening in the courtroom." Defense counsel concurred with this procedure and withdrew the motion for a mistrial.

On the second incident, on one morning during the trial, when the jurors were lining up to enter the courtroom, an alternate juror overheard one juror state: “It looks like this is going to be a long day today and tomorrow. Today may be the bulk of it.” A second juror replied, “Yeah . . . But I don’t know how much more they could say. It looks like we already know where it’s headed.” After the court learned of this situation, the trial court "separately questioned, under oath, the alternate juror and the two jurors who made the comments and allowed the attorneys to ask questions." The jurors acknowledge their comments but claimed not to hear the response. The jurors also confirmed that "they had not formed a final opinion about the case and agreed to have no further conversations about the case until it was over." The trial court concluded the exchange constituted “premature deliberations.” The trial court denied the defense motion for a mistrial "based on thecumulative effect of" both incidents. After the jury convicted the defendant, on appeal he claimed his Sixth Amendment right to an impartial jury had been compromised.

Eighth Circuit Review: Not Quite "Premature Deliberations"

The Eighth Circuit concluded that there was no Sixth Amendment violation as the defendant had "not demonstrated that there were, in fact, premature jury deliberations." Instead, the jurors had engaged in “innocent grist-of-the-mill comments . . . wondering about how long things are going to take . . . [and] a regrettable, but a general comment about . . . where things are going.” The "context of the comments" was also important as the statements were made as they prepared to enter the court and they had not formed an opinion on the case. They agreed not to discuss the case further. There was no indication that the comments impacted other jurors.

The circuit concluded that the juror exchange did not:

rise[] to the level of premature deliberations. Because Axsom has not shown there were premature deliberations, we need not address whether the bantering during voir dire constituted an extrinsic influence on the jury. We note, however, Axsom acquiesced in the court’s handling of the matter, making it difficult for him to now allege it was an “extrinsic influence” on the jury that is sufficient to warrant a mistrial.

Axsom, _ F.3d _ (citing United States v. Gianakos, 415 F.3d 912, 921 (8th Cir. 2005) (“In order to protect a defendant’s Sixth Amendment right to a fair trial as well as his or her due process right to place the burden on the government to prove its case beyond a reasonable doubt, a jury must refrain from premature deliberations in a criminal case.”) (citation omitted)).


While jurors are reminded not to discuss the case until it is submitted to the jury, the Axsom case shows the steps taken by the trial court to ascertain the nature of any discussion and the analysis on appeal. In this case, the communications were isolated and made in passing without any further impact.


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