Last week I wrote about the adverse impact of the use of social media by a juror while sitting on the jury. This week, I am reporting on the juror use of the Internet during deliberations, despite direct orders from the judge not to engage in such behavior. This trend is troublesome on a number of levels and again points to the need for lawyers to proactively monitor the use of social media and the internet by members of the jury in order to protect their client’s interests.
Summary
Daniel M Kaminsky, the jury foreperson was found to be in criminal contempt for violating several orders of the trial judge prohibiting jurors from engaging in any independent research during trial. (In re Kaminsky, (N.J. Sup. Ct., Bergen County, March 12, 2012). After a mistrial was declared in the underlying criminal drug case, two other jurors reported that Kaminsky had been using the Internet during deliberations. During an Order to Show Cause hearing and an in camera session, Judge Doyne determined beyond a reasonable doubt the following:
1) Kaminsky had conducted independent research
2) The act was in contempt of the court
3) The conduct was willfully disobedient, “with a complete disregard of the court’s authority and instructions”.
Although subject to a maximum punishment of six months in prison, a $1,000 fine or both, he as fined only $500 by the court.
The Facts
The jury was repeatedly advised by the court that the Internet and other independent research were prohibited because their deliberations and verdict should be based solely on the evidence that had been introduced and accepted by the court. Instructions regarding these limitations were made at a number of points throughout the trial, including during: voire dire, after being sworn in as a jury, before each break and at the end of each day’s proceedings.
In spite of these repeated directions, the jury foreperson researched the potential punishment options for the defendant and “concluded” that the penalty could range anywhere from ten to twenty years. The foreperson felt that this length of punishment was to severe based primarily on the defendant’s young age. The jury foreperson claimed that the possibility of such a lengthy sentence made him both physically and emotionally sick which impacted his thought process.
One of the jurors’s who had reported the actions of the foreperson felt that the foreperson had become ‘tainted” through his Internet research and therefore had influenced the direction of the deliberations by the entire jury pool. Even though the foreperson had not researched any material specific to the ongoing case and the trial judge had not laid out every possible subject matter that was considered prohibited research, the Court concluded that the critical fact was that the foreperson was relying on information that was not admitted during trial and therefore the foreman had disobeyed the Court’s instructions.
Judge Doyne acknowledged that in New Jersey, sanctions for violating jury instructions had not been issued before. However the Judge made three separate points in his opinion:
1. He is concerned about the general level of juror disobedience and the failure of some jurors to “conscientiously discharge their duties.”
2. He separately praised the actions of the two jurors who had come forward to report the problem.
3. He emphasized that he did not believe that the foreperson had any malevolent intentions through his actions.
The Result
The Judge did not attack jurors in general and respects the function and purpose of jurors in the trial process went to great lengths. As he has mentioned in other forums, Judge Doyne recommended that the State’s Model Criminal Jury Charges be revised to be more explicit and
1. “to better communicate the importance of obedience to the court’s instructions”
2. include an explanation of the “reasons for the prohibition on juror research”
3. and to describe clearly the “possible punishments for disobedience.”
Absent these types of explicit instructions, and without ongoing monitoring of jurors use of social media and the Internet, it is unlikely that this problem is going to disappear anytime soon. It is important to the judicial process that certain rules be enforced to create a level playing field for both parties in litigation. Lawyers need to strongly consider engaging the services of special trial consultants that can monitor the use of social media and the Internet during a trial to eliminate improper jury activities that can adversely impact decisions. Enforcement of jury compliance with court instructions is not going to happen by itself, proactive steps need to be taken.
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