Last week it was reported that a juror in the federal trial in Virginia deliberating the fate of Zacarias Moussaui may have inadvertently caused a major problem with the trial by consulting a child’s dictionary during a recess from deliberations. The trial judge determined the juror’s actions were not misconduct affecting the deliberations. There are a number of Maryland cases that detail what type of conduct by a juror can derail a trial under Maryland law.
Contrary to what TV and the movies may portray, including a memorably bad Cher movie where she and a juror conducted their own investigation (and romance) during trial, jurors are given strict instructions as to their conduct during trial. They are told not to have any contact or discussion with the attorneys, or any party or witness. They are told usually in preliminary instructions by the judge, as well as in the judge’s legal instructions at the end of the trial, that their verdict must be based solely on the evidence presented at trial, and that they are not to do any independent investigation on their own.
Despite those instructions, sometimes things go awry. A civil case from 1984 in Maryland involved a bailiff, who is the court employee who looks after the jury, who in response to a request during deliberations gave the jury a dictionary. This had of course not been admitted into evidence, and the parties and judge did not find out about it until after the verdict. While jurors are not allowed to “impeach” their verdict, that is to give testimony after the fact as to how they reached their decision, the trial court ended up ordering a new trial anyway. That was because notes from the jury to the Judge showed that an issue of causation was critical to their decision, and the definition in the dictionary which found its way into the jury room differed from the judge’s legal instruction.
Another issue that has cropped up from time to time involves exhibits, documents or things submitted as evidence. It goes without saying that only such items properly admitted into evidence can be considered, and those items go back to the jury room for use during deliberations. However, it is common for certain items to be offered into evidence, but not admitted by the court under the Rules of Evidence. Sometimes the clerk mistakenly sends items that were not in evidence back to the jury, and the court has to decide what to do about it.
In Merritt v. State, a search warrant that had been executed to allow defendant’s home to be searched, but was not admitted in evidence, somehow made its way back to the jury. When this was discovered after the trial, the judge had to determine whether that item may have prejudiced the defendant. Given the matters discussed in the warrant, the court found that the warrant may have prejudiced the jury’s verdict and ordered a new trial.
A similar problem can arise when a juror has improper contact with a party or witness during trial. In Jenkins v. State, the appellate court dealt with a criminal case where a juror, and a police witness who had testified, by coincidence wound up attending the same religious retreat over a weekend during a recess. When the juror told the officer she was a juror on one of his cases, the officer thought the juror meant some previous trial and asked if they had convicted the defendant. The juror told the officer the case was ongoing, but then had lunch with the officer. The appellate court held that such conduct warranted a new trial for the defendant.
The jurors in the upcoming Muhammed trial in Montgomery County will likewise be instructed carefully as to their conduct, and hopefully no mishaps like these will affect the outcome of that trial.