By Michael Hoenig - New York Law Journal -
April 12, 2010
In August 2003 in our
article, "When Jurors Surf the Internet (and Shouldn't),"1 we
reported on the growing phenomenon of jurors or potential jurors rather
easily gleaning extraneous prejudicial information from the Internet.
Last October we revisited the subject observing that both the
opportunity as well as juror straying had grown.2 Search
engines such as Google, social networking sites such as MySpace,
Facebook and Twitter, video archives such as YouTube and all manner of
blogs (individual and public forum types), plus much more created a pool
of easily available electronic information.
Juror forays onto the Internet is not the only form of juror misconduct that
can lead to acquisition of prejudicial information. But it is an easy,
opportunistic one and seemingly ubiquitous. Other traditional forms of
misconduct exist, such as actual juror visits to an accident scene,
experiments, independent research and quotient verdicts, among others. Each
of these can lead to prejudicial influence or taint upon the jury's
Courts deal with the problem, by and large, with admonitions to the jurors
to behave. Hopefully, all do. But we know at least some do not, from
anecdotal experiences or occasional post-trial proceedings. So we perhaps
lower our institutional sights and hope that most jurors will abstain from
misconduct. Many judges continue to give their scant, emotionless
admonitions in general terms expecting that only good behavior will result.
We know that fundamentally good people occasionally exercise poor judgment
or, titillated by momentary attraction, inclination, or mere curiosity, wind
up doing things they wish, in hindsight, they had not. Law-abiding folks
perhaps stray when it comes to their tax returns. Orderly people will exceed
the speed limit. Spouses in solid marriages occasionally wander. So too,
human nature alone suggests that some jurors' curiosity will simply try to
escape the insular cocoon of considering only admissible evidence. Indeed,
our columns surveyed some actual incidents. But what about the ones that
have not been revealed, those that have slipped by unnoticed?
How can one find out if juror misconduct has influenced the proceedings? In
some jurisdictions, questioning jurors after trial is forbidden, at least
without first securing permission from the court. Where juror privacy is
protected by rule or practice, approaching the court with a mere hunch or
conjecture is doomed. So-called "good cause" is often a minimum but where
does one get the information? Even in jurisdictions where the practice is to
let attorneys interview jurors, post-trial challenges to the verdict are
rejected or at least strongly discouraged. Protecting verdicts and avoiding
retrials means a collective judicial circling of the wagons against post-hoc
juror affidavits exposing or invading the deliberative process.
Challenges raising this or that perceived item of prejudice become far less
attractive as time passes. Weeks after the jurors have been discharged there
is little inclination to call them back for inquiries into proceedings that
are by now stale. Meaningful interviews and affidavits take time. The race
against the clock is another hurdle.
Occasionally, lawyers get lucky and the purported misconduct gets exposed by
one of the other jurors during trial. An example, is
Altman v. Bobcat Co., a products liability case that
reached the U.S. Court of Appeals for the Third Circuit but was published
only recently in the Federal Appendix.3 A worker struck in the
head with a backhoe bucket sued for defective design and was awarded some $3
million. On appeal, defendant complained about prejudicial information
conveyed by one juror to the others regarding independent research the juror
conducted by sitting in the cab of what she believed was a Bobcat machine
and reporting that the operator compartment was "tight."
The jury foreperson notified the judge who dismissed the experimenting juror
and conducted voir dire of the remaining jurors. After individual
questioning, including some probing by counsel with their own questions, the
trial judge did not find any of the remaining jurors biased, prejudiced or
unable to render an impartial verdict. The appellate court deferred to the
trial court's "superior position to assess the prejudicial effects of Juror
The Third Circuit observed that a new trial is warranted if the objecting
party "likely suffered substantial prejudice as a result of the jury's
exposure to the extraneous information." The court expressed a "preference"
for "individual voir dire questioning of each potentially tainted juror."
The trial judge has broad discretion to develop specific lines of
questioning. Indeed, "any method is sufficient provided it is probative on
the issue of impartiality."4
But this was a case where the misconduct was "almost immediately" reported
by the foreperson to the judge. A judicial probe could ensue on the spot
while the jurors were in service. What about cases where the prejudicial
incident goes unreported? Does that happen often? How can one find out
without interviewing jurors after trial?
New York courts apparently are tolerant of lawyers speaking with jurors
following a trial but, as a general rule, prohibit the use of post-trial
juror affidavits to impeach the jury's verdict. Thus, in
Russo v. Rifkin,5
the Appellate Division, Second Department, citing higher court precedents,
summarized the basics. Absent "exceptional circumstances" a juror's
testimony on affidavit may not be used to attack a jury verdict. Post-trial
challenges of such a nature would make a "private deliberation" the
"constant subject of public investigation—to the destruction of all
frankness and freedom of discussion and conference."
Though the anti-impeachment rule can cause an "unjust result" at times, it
is necessary to prevent post-trial harassment of jurors and "chaos" which
would result from the instability of verdicts. Jurors would be hounded by
lawyers and investigators for both parties in an attempt to obtain details
of what is "best shrouded in secrecy."
Such practical fears reflect valid policy judgments. Imagine, for example, a
multi-party case with third-party claims and cross-claims where jurors could
be pursued post-trial by investigators or attorneys for each party. Most of
us would not like that kind of intrusion after weeks of public service. But
note that the Russo
court did insert a caveat to the general anti-impeachment rule: "absent
exceptional circumstances." That opening pre-supposes that juror interviews
will be conducted by responsible attorneys or their investigators to flush
out the "exceptional circumstances."
There are thus some inconsistent tensions here. The courts' "message" seems
to be, "don't go to the trouble of bothering the jurors because we are not
going to accept their affidavits to overturn the verdict." Yet, "if you want
to find those 'exceptional circumstances,' how else to do so but to
interview the jurors?" The main intent seems to be that the basic
anti-impeachment rule will create inertia against hounding jurors. So, how
does one intuit the existence of an "exceptional circumstance" or a
miscarriage of justice? Now especially, with jurors easily surfing the
Internet and doing private, home-based research with dazzling speed, can
counsel in important cases truly forego engaging in juror interviews to
uncover the potential that extraneous prejudicial information may have
tainted the verdict?
One problem with efforts to secure post-trial juror affidavits is that,
arguably, this interview process may itself introduce outside influences
into the discharged juror's thoughts. This possibility was raised in
Moisakis v. Allied Building Products Corp.,6
where the Second Department was troubled by counsel's ex parte contacts with
the discharged jurors: "The problems with permitting such a procedure is
apparent here. After the jurors were discharged, they received extrajudicial
communications from counsel for the parties, and therefore were exposed to
outside influences of the most prejudicial sort. They then had the entire
weekend to rehash the deliberations and formulate second thoughts." Clearly,
one-sided and suggestive questioning could perhaps shape second-thoughts in
the minds of particularly suggestible persons.
Though jurors often are willing to chat with interested counsel immediately
after the trial at the courthouse and apparently such conversations seem to
be tolerated, pursuit of jurors weeks after trial arguably might be viewed
differently. Some early New York case law observed that, after jurors have
been discharged and "mingled with the public," permitting them to discredit
the verdict they solemnly rendered in open court would make no verdict safe.
Judgments would rest on a "very uncertain foundation." The consequences
would be "most mischievous." It would open the door to tampering with jurors
and would make it easy for a corrupt or dissatisfied juror to destroy the
very verdict he agreed to under sanction of an oath. "Every trial lawyer,"
said one court, "knows full well how easy it would be to find some
complacent juror who would yield to such appeal." Few verdicts would survive
and "there would be no end to litigation."7 Sometimes, reference
was made to canons of ethics frowning upon attorney interviews of discharged
An article in the ALR 4th, "Propriety of Attorney's Communications With
Jurors After Trial,"9 surveys case law, state and federal, and
observes that practices vary among courts, state and federal, from the
prohibition of contacts to first requiring court permission or to strict
regulation, to allowance of post-trial interviews. In the federal courts,
post-verdict interviews have generally been disfavored, sometimes with sharp
language about the process, such as "afterwards ransacking the jurors in
search of some new ground, not previously supported by evidence, for a new
But this policy-based attitude was formulated at a time when juror
misconduct regarding extraneous, out-of-court, prejudicial material was
obtained at some effort and where such attempts might be considered
occasional. The computer/Internet age plainly has changed the playing field
on the potential for juror misconduct. A juror can "visit" the scene of an
accident while sitting at her dining room table munching dinner. An expert's
in-court testimony can be researched for "truth" or "correctness" by a juror
pedaling an exercycle. The court proceedings can be subjects of blog
discussions by jurors with outsiders who profess opinions or "superior
knowledge." How are we to know whether such misadventures occurred without
One neat question is whether the news media have unrestricted First
Amendment rights to interview jurors post-trial. A Fifth Circuit decision,
re Express-News Corp.,11 held that a district
court's denial of leave for a reporter to interview jurors was
The reasoning was that the "public has no less a right under the First
Amendment to receive information about the operation of the nation's courts
than it has to know how other governmental agencies work and to receive
other ideas and information." Indeed, many litigators base their post-trial
motions upon leads furnished by news reports or on affidavits obtained after
a news story has been published. Nonetheless, said the court, countervailing
considerations may outweigh the press' rights. Among those considerations
are the accused's Sixth Amendment right to a fair trial and the "jurors'
interest in privacy and protection from harassment."
An even neater question is whether attorneys can contact discharged jurors
for self-educational purposes. Attorneys who want to become better trial
masters want to know what works, what does not, which expert convinces
jurors and which one flops. This quest is particularly apt in federal courts
where much has been made recently about the "vanishing federal jury trial."
Fewer cases are being tried to jury conclusion. This makes opportunities for
lawyers to cut their teeth, let alone to perfect trial techniques, during
meaningful trial experiences a rarity.
When only self-education is involved, do lawyers have a First Amendment
right to interview jurors? In
Haeberle v. Texas International Airlines,12 the
court held, "no." The interests of litigants and counsel to satisfy
curiosity or to improve their advocacy were outweighed by the jurors'
interest in privacy and the public's interest in well-administered justice.
Clyma v. Sunoco Inc.,13 a decision by the Tenth
Circuit issued in February, a non-party group of employment lawyers called
"Oklahoma Employment Lawyers Association" (OELA), seeking to provide
continuing legal education to its litigator-members, submitted an
application to a federal district court for permission to interview jurors
"for instructional purposes."
OELA asserted a First Amendment right to juror access following an
employment discrimination trial. The district court denied OELA's
application in a minute order and the group petitioned for a writ of
mandamus. The Tenth Circuit labeled the issue a "substantial question" that
"may be one of first impression." Could the lawyers who did not participate
in the underlying litigation access jurors to assist the litigators in
preparing an educational program for the use and benefit of a professional
organization? The Tenth Circuit suggested that a narrowly tailored order
could perhaps be framed permitting access but the panel was "uncomfortable"
deciding the "novel issue" without the district court having exercised any
meaningful discretion. It had issued only a minute order of denial so this
was considered an abuse of discretion. The writ was granted and the district
court was directed to reconsider the application pursuant to a "meaningful
exercise of its discretion."
The normal, long-standing rules disfavoring post-trial juror interviews have
proceeded on the basis of policies trying to protect the integrity and
privacy of the jury's deliberative process. This has come at the expense of
some litigants' rights to a fair trial. In jurisdictions where juror
contacts are permitted but where the anti-impeachment-of-a-verdict rule is
rigidly applied, the overall objective seems the same except that juror
access occasionally can ferret out the exceptional case where strong
evidence of prejudice can be shown. For most cases the result, however, is
However, the Internet, computers, blogs and encyclopedic information
speedily available to jurors in the digital age may have changed the playing
field and made the effort to misbehave little more than the touch of a
button. Stronger juror admonitions probably are needed. Perhaps, too, before
jurors are discharged they routinely should be made to answer probing
questions about potential misconduct (not termed as such) either orally in
open court or via a simple, brief written questionnaire drafted by pattern
jury instruction committees. These answers will give some clues as to
whether further juror access and post-trial proceedings might be warranted.
More importantly, they may uncover a beehive of misconduct of which the
courts are unaware.
Michael Hoenig is a
member of Herzfeld & Rubin.
1. New York Law Journal,
Aug. 11, 2003, p. 3.
2. Hoenig, "Juror Misconduct on the Internet," NYLJ, Oct. 8, 2009, p. 3.
3. Altman v. Bobcat Co., 349 Fed'l Appendix 758 (3d Cir. 2009).
4. 349 Fed'l Appendix at 761.
5. 113 A.D.2d 570, 574-575 (2d Dep't 1985).
6. 265 A.D.2d 457, 458 (2d Dep't 1999).
7. See Sindle v. 761 Ninth Ave. Corp., 127 N.Y.S.2d 258, 260 (Sup. Ct. N.Y.
Co. 1953) (quoting from Payne v. Burke, 236 App. Div. 527, 529).
8. See Sindle, 127 N.Y.S.2d at 260 (quoting from ABA Canons of Ethics);
Tartacower v. N.Y. City Transit Auth., 169 N.Y.S.2d 695 (Sup. Ct. Kings Co.
1957) (citing Sindle).
9. Dale R. Agathe, 19 A.L.R. 4th 1209 (originally published in 1983 and cum.
Haeberle v. Texas Int'l Airlines, 739 F.2d
1019, 1021 (5th Cir. 1984).
11. 695 F.2d 807, 809 (5th Cir. 1982).
12. 739 F.2d 1019 (5th Cir. 1984).
13. 594 F.3d 777 (10th Cir. 2010).
Printer Friendly Version
Back to Archive
125 Broad Street, New York, New York, 10004 - Phone: 212-471-8500 - Fax: 212-344-3333©2004 -2014 Herzfeld & Rubin, P.C.