Thursday, December 1, 2011

Juror Conduct During the Trial

By John J. DiMotto

When a jury is selected to try a case, the trial judge has the responsibility to ensure that the jury's verdict is based on three things, and three things alone:

1) The facts as found by the jury from all of the evidence submitted during the trial.

2) The law as given to the jury in the jury instructions.

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

Prior to "the age of the internet and cyberspace," judges would instruct the jury that for the duration of the trial they should not:

1) Talk to people about the case.

2) Listen to news reports about the case on radio or tv.

3) Read any articles about the case in the newspaper.

4) Read any books or articles in magazines pertaining to the case or issues in the case. (eg. I would instruct the jury not to go to the public library or call "ready reference" at the public library for any information.)

These admonitions were very simple and, I believe, effective. It was my experience that jurors understood they, not anyone else, were to make the decision in the case and that they decision they made was to be based on what they learned via the evidence introduced.

Things are much different today. The internet has opened up the world to everyone and access to information is without bounds. People want more information regarding matters touching every aspect of their lives and they are used to getting it on their own. People do not want limits placed on their ability to learn. If what people are told does not seem sufficient for their purposes they then seek out more information. People don't like to be told to NOT seek out information. As a result, it is incumbent upon a trial judge to not only place limits on what jurors can and cannot do, but to make sure the jurors understand why there is the necessity for limits.

Prior to the introduction of evidence in a jury trial, I read the jury a detailed instruction pertaining to their conduct during the trial. I tell them:


"As far as your own conduct during the trial, I must caution you that you are not to discuss this case either among yourselves or with anyone else during the trial.

You must not permit any third person to discuss this case in your presence, and if anyone does so, despite your telling them not to, you should report that fact to me. I understand that it is a normal human tendency to want to converse with people with whom one comes into contact; however, please do not, during the time you serve on this jury, speak, whether in or out of the courtroom, with any of the parties or their lawyers or any witnesses. By this I mean not only do not speak about the case but also do not speak at all even to pass the time of day. In no other way can all the parties be assured of the absolute impartiality they are entitled to expect from you as jurors.

In fairness to the parties to this lawsuit, you should keep an open mind throughout the trial, reaching you conclusion only during your final deliberations after all the evidence is in and you have heard the attorneys' closing arguments and my instructions on the law. You will then be in a position to intelligently and fairly exchange your views with other jurors as you deliberate upon the verdict to be submitted to you.

Since you will be deciding this case solely on the evidence received along with my instructions on the law, you must not make any independent investigation of the facts or the law.

Do not research any information that you personally think might be helpful to you in understanding the issues presented.

Do not investigate this case on your own in any manner, shape or form.

Do not read any newspaper reports or listen to any news reports on radio, television or on the internet.

Do not visit any locations discussed in the evidence in person or via the internet.

Do not conduct experiments.

Do not consult dictionaries, computers, websites or other reference materials for additional information.

Do not seek information regarding the public records of any party, witness or lawyer in this case. Any information you obtain outside the courtroom could be misleading, inaccurate, or incomplete. Relying on this information is unfair because the parties would not have the opportunity to refute, explain or correct it.

Do not communicate with anyone about this trial or your experience as a juror while you are serving on this jury.

Do not use a computer, cell phone or other electronic device with communication capabilities to share any information about this case. For example, do not communicate by blog, email, text message, on twitter, facebook or other social network.

Do not permit anyone to communicate with you, and if anyone does so despite your telling them not to, you should report that to me. I appreciate that it is tempting when you go home in the evening to discuss this case with another member of your household or friends, but you may not do so. This case must be decided by you, the jurors, based on the evidence presented in the courtroom. people not serving on this jury have not heard the evidence, and ti is improper for them to influence your deliberations and decision in this case. After the trial is completed, you are free to communicate with anyone in any manner.

These rules are intended to assure that jurors remain impartial throughout the trial. If any juror has reason t believe that another juror has violated these rules, you should report that to me. If jurors do not comply with these rules, it would result in a new trial involving additional time and great expense. Furthermore, any juror who violates these rules may be found in contempt of court and may be responsible to pay the costs of the trial, may be subject to a fine and may even be subject to incarceration."

Yes, this is very detailed (some might even say "wordy") but I believe necessary to impress upon the jurors the awesome responsibility we have entrusted to them.

However, this is not the end of my admonition. Each and every time we take a recess and at the end of every day, I re-admonish the jury as follows:


"Do not discuss this case among yourselves or anyone else. It is premature to do so until this case is given to you for your final consideration during deliberations in the final phase of this trial.

This means you may not talk to anyone about the case face to face, by phone, by email, by text message or via any social network such as twitter, facebook, etc.

If you leave the jury room during the break, avoid contact with the lawyers, parties and witnesses and they know that they should avoid contact with you.

As I told you during voir dire and in my preliminary instructions, it is of the utmost importance that you not do any research or seek any information regarding issues in this case, any of the lawyers, parties or any of the witnesses. This means do not read any books or periodicals for any information. Definitely do not go on the internet for any information.

Do not do anything outside this courtroom in an attempt to assist you in performing your jury service. It will not assist you. Everything you need to do your job as jurors is being provided to you within the four walls of this courtroom. You will see and hear all of the evidence, here. You will be instructed on the principles of law that apply to the issues in this case, here. And, of course, you bring your common sense and long experiences in life with you, here.

If you do anything outside the courtroom, you will negatively impact the integrity of any verdict that you return and it will result in the necessity for a new trial in front of a different in the future at great expense to the public, and no on wants that to happen."


It is the responsibility of the trial judge to ensure that the integrity of a jury's verdict is beyond question or reproach. If the trial judge fully explains to the jury what their role is, what they can do, and, most importantly, what they cannot do, justice is served.

1 comment:

  1. John,
    I would guess that in order to be a good judge you must believe and undoubtedly stand by everything you tell the jurors. As a skeptical old hippie, although the goals and sentiments are lofty, I have to disagree with a couple of things. I don't believe all the evidence is presented. Both sides commit the 'sin of omission' in order to further their respective cases. Secondly, I'll bet that sentiment/resentment, attitude, and prejudice sneaks past voir dire and permeates the juror's mind. As you can tell, I have a serious distrust of the justice system, it seems to skew in favor of those that have.

    I was called for jury duty 2 or 3 times. My name/number came up only once. Of course at the time I did not know it was going to be on a 'widely known' (out here) murder trial. I got to voir dire and one of the first, if not the first, question asked was 'if I could be impartial' - or something on that order. My response was something like 'I was confident I could be impartial because there is a presumption of innocence'. That was the final question asked of me by the defense attorney and he saw me 'fit' for jury duty. To disgust/consternation/expectations, the prosecutor immediately used one of his selections and I was dismissed.
    A. - was that wrong? and
    B. - see why I'm so jaded?