The purpose of voir dire is to assess potential jurors’ suitability for jury service. Through voir dire, the court and the parties have the opportunity to evaluate whether potential jurors are willing and able to deliberate fairly and impartially and to remove those jurors who are not. However, depending on court rules and procedures, voir dire may not always be an effective means of weeding out all unsuitable jurors. In some instances, the court and the parties alike may not be aware until deliberations begin that the jury includes an individual who, for whatever reason, is unable or unwilling to follow the court’s instructions and deliberate fairly and impartially. At this late stage, while it may still be possible to excuse a juror, the court and the parties must tread carefully to avoid interfering with the integrity of deliberations, which could result in a mistrial.
Different court rules may specify when and how jurors can be removed once deliberations have already begun. For example, the Federal Rules of Criminal Procedure state, “After the jury has retired to deliberate, the court may permit a jury of 11 persons to return a verdict, even without a stipulation by the parties, if the court finds good cause to excuse a juror.” Fed. R. Crim. P. 23(b)(3). Similarly, the Federal Rules of Civil Procedure provide that the court may excuse a juror for “good cause” during deliberations. Fed. R. Civ. P. 47(c). While neither rule explicitly defines “good cause,” courts have held that the term includes “a variety of problems that may arise with respect to the jury, including sickness, family emergency, or misconduct,” U.S. v. Vartanian, 476 F.3d 1095, 1098 (9th Cir. 2007), and have dismissed jurors during deliberations for a number of different reasons. See, e.g., id. (dishonesty toward the court); U.S. v. Kemp, 500 F.3d 257 (3d Cir. 2007) (refusal to deliberate and indicia of bias); Robinson v. R.J. Reynolds Tobacco Co., 86 F. App’x 73 (6th Cir. 2004) (mental health concerns); United States v. Wetselaar, 2017 WL 2405370 (D. Nev. 2017) (refusal to deliberate). Accordingly, courts have some freedom in determining what constitutes “good cause” to excuse a juror during deliberations.
Nevertheless, while courts may find guidance on what constitutes “good cause” in procedural rules or subsequent interpretation by the courts, these sources do not specify how a court determines whether “good cause” exists in any particular case. Questioning the juror (or jurors) is likely the easiest and most efficient method of determining whether good cause exists that is sufficient to excuse a juror during deliberations. See Kemp, 500 F.3d at 273-74 (court individually questioned each juror on two separate occasions); Bhat v. University of Cincinnati, 23 F. App’x 280, 284-85, 286-87 (6th Cir. 2001) (court individually questioned problem juror on two separate occasions; Wetseelar, 2017 WL 2405370, at *7 (court individually questioned problem juror and two other jurors). However, by engaging in this type of investigation, the court runs the risk of “expos[ing] jury deliberations to public scrutiny” and “interfering with ‘the integrity of the deliberative process.’” Vartanian, 476 F.3d at 1098 (internal citation omitted). To minimize this risk, when crafting the appropriate questions to ask, courts must carefully balance the importance of maintaining the secrecy of the jury’s deliberations against the need to ferret out potential juror misconduct. See Kemp, 500 F.3d at 301. Moreover, courts must be extremely careful that jurors do not reveal the substance of deliberations or their view of the issues in the case, to avoid any suggestion that a juror was excused solely because of that juror’s views on the merits. See id. at 304 (holding that courts may only excuse a juror when there is “no reasonable possibility that the allegations of misconduct stem from the juror’s views of the evidence”); Vartanian, 476 F.3d at 1098 (holding that the court must send the jury back to deliberations or declare a mistrial if there is “any reasonable possibility” that the complaints relate to the juror’s views on the merits).
The Third Circuit’s decision in Kemp provides a useful illustration of the type of limited questioning courts and parties should consider. There, faced with concerns that one of the jurors was refusing to deliberate impartially, the court interviewed each juror individually and asked the following three questions in camera:
(1) Are you personally experiencing any problems with how the deliberations are proceedings without telling us anything about the votes as to guilt or innocence? If yes, describe the problem.
(2) Are all of the jurors discussing the evidence or lack of evidence?
(3) Are all of the jurors following the court’s instructions on the law?
Kemp, 500 F. 3d at 273. When it appeared that the jury was still experiencing difficulties with the same juror, the court again interviewed each juror and asked three slightly different questions:
(1) Is there any juror or jurors who are refusing to deliberate?
(2) Is there any juror who is refusing to discuss the evidence or lack of evidence?
(3) Is there any juror who is refusing to follow the Court’s instructions?
Id. at 274. These types of questions both preserve the integrity of the jury’s deliberations and expose potential juror misconduct.
A juror’s unwillingness or inability to deliberate fairly and impartially and to follow court instructions can wreak havoc on a trial at the last minute. Parties can and should consider asking the court to excuse a problematic juror in such circumstances. However, both the parties and the court must also carefully consider the risk that the investigation itself could interfere with the integrity of the jury’s deliberations.
Tracey E. Timlin is an associate with Potter Anderson & Corroon LLP in Wilmington, Delaware.
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