Juror Google Research Results In Granting Motion For A New Trial

After two jurors conducted Google searches concerning the meaning of the term "reasonable doubt" during jury deliberations, the trial court conducted a hearing involving juror testimony; a new trial was ordered after the court concluded that the presumption of prejudice resulting from the jury's exposure to extraneous information could not be rebutted, in United States v. Rand, _ F.Supp.2d _ (WDNC Sept. 6, 2013) (No. 10 CR 00182)

With increasing frequency, courts have noted concerns over juror research during a jury trial including over the Internet. Juror Internet research resulted in an order for a new trial in the Western District of North Carolina last week.

Juror Internet Research

In the case, after three days of deliberation, the jury convicted the defendant, a former executive of Beazer Homes USA, in a securities fraud scheme. Three months later, the defendant filed a motion for new trial based on juror misconduct. The trial court noted that FRE 606(a) normally bars juror testimony about matters that occurred during deliberations. However, an exception applied when "extraneous prejudicial information was improperly brought to the jury's attention," under FRE 606(b)(2)(A). The court held an evidentiary hearing, received testimony from eleven jurors (after one juror could not be located before the hearing but ultimately provided declarations). The hearing revealed that two jurors researched the meaning of "reasonable doubt" by making a Google search. Although one of the Googling jurors did not share the results with the other jurors, the second juror did:

Juror Twelve admitted that she Googled the definition of “beyond a reasonable doubt,” printed it, and brought it into the jury room on a small piece of paper midway through the deliberations, either on Wednesday or Thursday. The jury had previously decided a number of counts and marked the verdict form as it worked “down the line” to Count Ten, involving witness tampering. Juror Twelve was not in agreement on Count Ten and was told she was not being reasonable. She looked up the definition to be more comfortable with her decision. She may have read it aloud to the other jurors and then placed it on the table in front of her; however, other jurors ignored it, and she did not recall them passing the definition around or discussing it. The jury decided Count Ten after she brought the piece of paper in, but did not revisit any of the previously decided counts. Juror Twelve also admitted that she printed two newspaper articles from the internet after she was selected as a juror, but prior to the time deliberations began. One article recited the charges the defendant faced and the other was about communities that were affected by foreclosures. She did not bring the articles into the jury room or discuss them with other jurors.
Rand, _ F.Supp.2d at _ (hearing citations and footnotes omitted). The second juror who used Google to find a definition for "reasonable doubt" (Juror Three) reported:

Sometime after the first day, during the middle to late period of deliberation, a juror brought in a definition of reasonable doubt that was circulated to the jury, which Juror Three personally read. The day before, the jury had reached a “sticking point” on understanding what a reasonable doubt was in relation to the facts before them. The evening after the jury reached its sticking point, Juror Three also researched the term “reasonable doubt” using Google. However, Juror Three did not share what he read with the jury because the circulated definition matched what he had found on the U.S. Courts website.
Rand, _ F.Supp.2d at _ (hearing citations omitted).

At the evidentiary hearing, the court noted discrepancies about the extraneous information:

The passage of almost nine months’ time understandably eroded their memory of some particular details. Thus, it is not surprising that eight of the twelve jurors did not recall having seen outside material in the deliberation room and that only one juror remembered any discussion about the definition.
Rand, _ F.Supp.2d at _.

Rebuttable Presumption Of Prejudice Factors

Given the jury exposure to the extraneous information, a rebuttable presumption of prejudice applied. The court considered the following factors:

  1. The importance of the word or phrase being defined to the resolution of the case.
  2. The extent to which the dictionary definition differs from the jury instructions or from the proper legal definition.
  3. The extent to which the jury discussed and emphasized the definition.
  4. The strength of the evidence and whether the jury had difficulty reaching a verdict prior to introduction of the dictionary definition.
  5. Any other factors that relate to a determination of prejudice.
Rand __ F.Supp.2d at __ (citing United States v Lawson, 677 F.3d 629, 646 (4th Cir. April 20, 2012) (based on factors from Mayhue v. St. Francis Hospital of Wichita, Inc., 969 F.2d 919, 924 (10th Cir. 1992)). The trial court concluded that each factor favored the defendant and there the presumption of prejudice could not be rebutted. A new trial was ordered.

Summary

Unless the jury is sequestered, the use of the Internet by jurors is almost always a potential problem for the courts to confront. As noted in prior blog posts, many courts find it necessary to provide jurors with more explicit guidance about the use of electronic communications technologies during their jury service, which would include Google. For examples, consider:

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