Juror misconduct

Litigants are entitled to a jury that is unbiased, that rationally decides the facts based on the evidence, and that follows the judge’s instructions.  But because a trial is a complicated process filled with opportunities for human error or intentional misconduct, and jurors are human, departures from this ideal are not rare.  For a list of many of the possible kinds of juror misconduct, click here.  For a list of reading sources about juror misconduct, click here.

The first key question regarding juror misconduct is: When is it discovered—before the jury retires to deliberate, or after?  If the misconduct is discovered before the jury begins to deliberate, the judge can usually remedy it relatively easily by dismissing the misbehaving juror and substituting an alternate juror.  Or if the misconduct is such that it has tainted the trial, the judge can declare a mistrial and the litigants can begin afresh with a new jury.  But a legal “point of no return” is reached once the jurors have begun to deliberate.  At that point several important legal principles kick in that make remedying juror misconduct much more difficult:

• The alternate jurors are dismissed, and no substitutions can occur. Thus, the only remedy for juror misconduct discovered while the jury is deliberating is for the litigants to agree to a decision by a reduced number of jurors after the misbehaving juror has been dismissed (but even this is problematic—see the next point).

• Any misconduct now has a much greater potential to taint the other jurors because they are now discussing the case, whereas before deliberations the jurors were instructed not to talk with each other about the case.

• If, as is most often true, the misconduct is not discovered until after the verdict has been rendered, then two strong legal policies tend to restrain efforts to rectify the misconduct:

  • The policy that jury deliberations are secret, and only limited inquiry is permitted concerning what went on in the jury room.

  • The policy that once a verdict has been rendered, it is presumed to be a valid final judgment for reasons of judicial economy and repose for the litigants.

• Thus, it is often an uphill battle for a losing litigant to even be permitted to offer evidence of jury misconduct, let alone to be granted a new trial on the basis of it. Federal Rule of Evidence 606(b) shows the difficulty of presenting evidence to “impeach” the jury verdict (and many states have similar laws):
  (b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.