Role and Duties of a Judge with a Jury

By John DiMotto

In addition to writing my blog, I have facebook and twitter accounts which provide me with a vehicle to communicate my thoughts on the law and to obtain information that will assist me in performing my service as a judge. One of the great advantages I have gained from my twitter account is a vast amount of information about juries, jury issues and jury problems. Two of the sites I follow on twitter are Jury Vox and Jury Talk. They have reported numerous instances throughout the country where jurors, sometimes intentionally but usually inadvertently because they were not properly instructed on what not to do, sought out information outside the courtroom that resulted in the trial judge having to grant a mistrial or new trial.

One of the most important duties a judge has perform in his/her capacity as the manager of the parties, jury and case in the course of a jury trial is to ensure that the jury arrives at its decision based on three things:

1) The facts, as the jury determines them, from all the evidence that is introduced during the trial.

2) The application of the law that the judge provides to the jury in the court's instructions to the facts as determined by the jury.

3) The use of the jurors common sense and long experiences in life.

It is imperative that the trial judge make every effort to ensure that "extraneous information" is not sought out by the jurors or be brought to the attention of the jurors. This is not easy in our 21st century "Informational Age."

What is "extraneous information?" It is anything outside of the record established by the evidence introduced during the proceedings in the courtroom. It can be:

1) Information about the attorneys, parties or witnesses.

2) Information pertaining to the issues that are the subject of the lawsuit.

3) Any investigation done by jurors outside of the courtroom.

4) Communication and discussions with others about the case.

5) Accessing books or periodicals for definition of legal terms.

6) Seeking out the opinions of others as to how the case should be decided.

In "the old days" --- pre-internet days --- it was much easier to insulate the jury from extraneous information. Judges only needed to be concerned about news reports in print, on radio or television and jurors talking to people about the case face to face or over the phone. Today, there are myriad ways that jurors can obtain extraneous information:

1) By use of electronic communication devices that almost every juror carries on his or her person (cell phone, smartphone, I-Pad, etc.)

2) By use of computer to access articles pertaining to the issue in the case or to access public record information on the participants in the trial.

This can be a very real problem unless the trial judge is very proactive in his/her interaction with the jury to make it abundantly clear to the jury that if they do ANYTHING outside the courtroom they will jeopardize the verdict in the case. I take this approach and believe that I have been extremely successful in impressing the jury that if they decide to play "Sherlock Holmes" and do any research about any aspect of the case or participants that it will not assist them rather it will cause a mistrial, or if discovered after trial will result in a new trial.

One of the most important phases of a jury trial is the Voir Dire phase. That is the time that the trial judge can lay the groundwork to ensure that the jurors stay "on task" -- that is to to decide the case based only on:

1) The evidence.

2) The law.

3) Their common sense and long experiences in life.

I spend upwards of an hour familiarizing the jury panel with their role and the justice system's expectations of them. I explain all phases of the jury trial from Voir Dire through Deliberations in great detail. I "leave no stone unturned" and, based on my discussions with the jurors after the case, I am confident that they followed by instructions. They have told me that they recognized that they had an awesome responsibility to arrive at a fair verdict and that the parameters I set for them to follow kept them focused.

I also emphasize it during my preliminary instructions before opening statements and the introduction of evidence in the evidentiary phase.

In addition to my admonitions during voir dire and during my preliminary instructions, at every break we take I always tell the jurors:

1) Do not discuss the case among themselves or with anyone else in any manner, face to face, phone, text message, social network.

2) Avoid contact with lawyers, parties and witnesses at all times.

3) Do not seek any information about the case, issues or participants to help them do their job because it will not help them.

4) Do not do anything outside the courtroom to assist them because it will have the opposite effect.

5) If they do anything outside the courtroom it will negatively impact the integrity of any verdict and will require a new trial in the future at great expense.

The trial judge must be an active advocate for justice and that includes properly instructing the jurors on their role. I am confident that when we do our job the jury DOES hear what we say and does follow our instructions. The result, a fair verdict and justice.