Juror Internet Research Leads To Reversal

Defendant’s drug distribution conspiracy conviction reversed because trial judge failed to probe the extent that other jury members were exposed to an "errant juror’s" Internet search results, in United States v. Bristol-Martir, 570 F.3d 29 (1st Cir. June 26, 2009) (No. 06-2722)

One area of confusion in federal trial procedure is coping with juror misconduct in the age of the quick and easy Google search. A trial judge may have a heightened duty to question jurors on the record about any alleged extraneous contact or exposure to Internet searches. However, a one difficulty is that FRE 606(b) renders jurors incompetent to testify about anything occurring during their deliberations, such as their mental processes. How can a court balance the duty to probe for juror misconduct with the duty not to intrude into the jury’s deliberations under FRE 606(b)? The First Circuit recently probed this delicate balance.

In the case, defendant Bristol-Martir was one of four police officers convicted of conspiracy to distribute narcotics after he protected cocaine shipments to various locations throughout Pureto Rico. The defendant appealed contending that the trial judge inadequately handled juror misconduct that had occurred. During the course of its deliberations, the jury sent several notes to the judge questioning various terms used in the jury instructions (such as the meaning of the word “distribution.”). On the third day of deliberations, the court received this note from the jury foreman: “One of the jurors searched the internet yesterday for federal laws and terms definitions. We need to know if this action disqualifies this juror. Please let us know.” Bristol-Martir, 570 F.3d at 36.

The judge immediately stopped deliberations and conducted an inquiry with counsel present. The trial court extensively interviewed the jury foreman, and discovered the errant juror’s identity. The court sought to discover what that juror had done during the Internet search. After extensive questioning, the court probed for whether any of this information had been spread to other jurors. After replacing the errant juror, deliberations started anew. The court issued a sealed order stating its findings that “the errant juror's research and subsequent statements to the other jurors did not taint the jury." However, the trial court declined to disclose to the parties what was contained in a sealed exhibit because it contained ‘expressions regarding [the errant juror's] deliberative process.’” Bristol-Martir, 570 F.3d at 38.

The First Circuit reversed the defendant’s conviction and remanded the case based on this record, noting:

“[C]rucially, the district court did not inquire, either in a group setting or on an individual basis, as to whether jury members had been influenced by the errant juror's improper research and presentation. In its re-questioning of jury members, the district court made only slight modifications to its generic instructions and made no mention of the errant juror's improper communications. Our case law has consistently emphasized that the district court, in conducting its investigation, must ensure that jury members can remain impartial when they have been exposed to extrinsic information that is potentially prejudicial.”
Bristol-Martir, 570 F.3d at 43 (citing United States v. Anello, 765 F.2d 253, 258 (1st Cir. 1985) (no abuse of discretion exists in case where “the retained jurors warranted that they would not consider [the information to which they were exposed that was not evidence]; and [the jurors] added that, in all events, what they had seen or heard would not influence their judgment”).

Reversal of the defendant’s conviction was warranted:

“The district court's failure to question all jury members regarding their ability to remain impartial in light of the errant juror's misconduct was especially important given the challenges in ascertaining what went on in the jury room… Given the uncertainty surrounding the errant juror's presentation, the district court erred in its decision not to mention the errant juror's improper communications in its re-questioning of the remaining jury members. Thus, we have no way of knowing whether the errant juror's internet definitions unduly influenced a jury member's finding of guilt. … We conclude that the district court's handling of the errant juror's misconduct constituted an abuse of discretion because it compromised the defendants' right to have a trial by an unbiased jury.”
Bristol-Martir, 570 F.3d at 43 (footnotes omitted).


The court concluded that the obligation to protect the defendant’s right to an unbiased jury can excuse a more extensive foray into the nature of the jury’s deliberations. This intrusion need not probe precisely what each juror recalled of the errant juror’s information, as long as it probed whether the jurors were able to express a commitment to dealing with the case impartially. Bristol-Martir, 570 F.3d at 43 (citing United States v. Boylan, 898 F.2d 230, 259-62 (1st Cir. 1990) (There was no abuse of discretion of continuing jury deliberations in light of “jurors' assertions of continued impartiality,” thus ensuring “that the parties ‘receive[ ] the trial by an unbiased jury to which the Constitution entitles them.’”)). Without referring to FRE 606(b)’s barrier to intruding into the jury’s deliberations, the circuit suggested how its interests can be maintained without depriving the defendant of the right to an unbiased jury.

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Federal Rules of Evidence
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