Following a murder conviction, defense counsel learned that jurors had searched online for potential prison sentences and legal terms of art during deliberations. On appeal, the court held that the trial court was required to conduct a hearing to determine the extent of potential juror misconduct, and it reversed the trial court’s denial of a hearing focused on juror deliberations. ABA Litigation Section leaders advise attorneys to interview jurors in all cases, and to act promptly if misconduct is suspected.
In State v. Grimes, the defendant was tried on charges of both second-degree murder and manslaughter arising from a death that occurred as a result of a fight. Following trial, the jury found the defendant guilty of second-degree murder.
After the trial but before sentencing, the defendant’s attorney learned that some jurors searched online for potential prison sentences and looked up definitions of legal terms like “depraved heart” before deciding the defendant’s guilt. According to a transcript of a recorded call between the defendant’s attorney and a juror, jurors performed the outside research because they were dissatisfied with the court’s instructions.
Following the verdict, the defendant was sentenced to 20 years in prison. The defendant moved for acquittal notwithstanding verdict or a new trial based on juror misconduct. The defendant also asked for a hearing before the trial court on juror misconduct based on the transcript of the attorney’s call with the juror.
Under Mississippi law, the moving party must make a good cause showing to justify an investigatory hearing into juror misconduct. In this case, the trial court denied the motion without a hearing because the defendant failed to show good cause that the jury was influenced by the internet searches. The trial court likened searching the internet to using a dictionary, which the Mississippi Supreme Court previously tolerated in Rutland v. State. The defendant appealed.
The Court of Appeals of the State of Mississippi reversed the denial of the defendant’s motion for a hearing on the grounds that the trial court had applied the wrong legal standard. The defendant was required to show good cause only that the jurors may have considered outside information, not the higher burden of showing that the outside information influenced the jury’s decision. The defendant met that lower standard here and, accordingly, the trial court should have conducted an evidentiary hearing to determine what the jurors had searched and whether they shared the information they found. Rutland was distinguishable because in Grimes the jurors’ internet searches concerned sentencing, which a jury is forbidden from considering, and legal definitions, which were within the ambit of jury instructions to be given by the court.
Litigation Section leaders agree that the outcome was correct. “This was a relatively easy decision for the appellate court,” states Andrew D. Tharp, Nashville, TN, cochair of the Litigation Section’s Mass Torts Litigation Committee. “The trial court is first supposed to ascertain whether the jury was exposed to extraneous information, then have a hearing to ascertain the details and determine if it impacted the jury’s ultimate decision,” he explains.
Section leaders also share the appellate court’s concern about the jury’s improper inquiry into potential sentences. “It is outrageous that the trial court judge made a finding that the jury’s research and discussion of potential sentences was proper,” argues Keith H. Rutman, San Diego, CA, Practice Points Editor of the Section’s Trial Evidence & Practice Committee. “In fact, prosecutors often make motions to exclude any evidence regarding sentencing” from being considered by a jury, he elaborates.
While the ubiquity of smart phones makes it easy for jurors to conduct extraneous research, Section leaders view the likelihood of increased juror misconduct soberly. “I expect the jury to follow the instructions of the court,” declares Tharp. Still, it does happen. “Juror misconduct is not common. I faced it once in my career when a juror reached out to me with his concerns,” shares Rutman.
The rule against discussing jury deliberations creates problems for practitioners exploring potential misconduct. They must demonstrate that the jurors were exposed to information that may have made a difference in their decisions yet cannot inquire about how the jurors reached their decisions.
Rutman suggests a solution where practitioners submit two juror affidavits: one concerning misconduct and the other with juror impressions of how the misconduct affected deliberations. The second affidavit, which would be kept under seal, would aid the trial court in its fact-finding and create a record on appeal.
Ultimately, it is up to counsel to find out about potential juror misconduct as expeditiously as possible before memories begin to fade. “The importance of paying attention to deliberations cannot be overstated,” concludes Rutman. “I talk to jurors in the hall right after the trial, rather than hanging around in the courtroom with my client,” he says.
