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Bar News - January 15, 2010

Morning Mail: Attorney Voir Dire A Better Way to Prevent Juror Misconduct

I do not believe that the Michigan rule proposed by Attorney Douglas (See the Dec. 18 issue of Bar News) is the answer to current juror issues. In the Merrimack County case, the jurors did just what they should have done – immediately attempting to silence the offending juror before he completed his disclosure; then the foreperson reported the event immediately to the bailiff. The bailiff informed the judge, who took immediate action to prevent the spread of the information by isolating the jurors and ordering them not to discuss it further. She then summoned counsel. The entire process worked as it needed to, and seamlessly. (Has the term "like clockwork" been rendered archaic and meaningless by technology yet?)

The jurors knew their duty and had no compunction about bringing the problem to the Court’s attention, despite the absence of the Michigan rule.

Of greater concern to a fair trial are the jurors, like the unrepentant Merrimack County juror, who hide their agendas to get on the jury and mete out justice by their own rules. The Michigan rule would warn off the ones who, spurred on by conservative commentators who claim millions of followers, are over-optimistic that they will find like-minded people on the jury. These folks are likely to show their hand in some way, and are the easiest to discover. The Michigan rule would hinder their apprehension by driving them underground.

The Merrimack County juror apparently had not thoroughly reviewed the "Stealth Juror" manual, available for $9.95 through one of the bigger booksellers on the Internet. It is a guidebook for those who find a sense of purpose in defying governmental authority in pursuit of conservative demagogues’ notions of justice. They are not affected and would not be detected by the Michigan rule.

Aided by the technology at which the rule aims, a juror with an agenda has unfettered and secret access to unlimited online information. No one will ever know unless they tell, though they are themselves no less infected with prohibited information, and therefore no less subversive of the legal process.

Criminal defense lawyers in this state have over the past year repeatedly been subjected to outside information’s influence upon or derailing of a jury, some more than once. I would be surprised if civil lawyers had not encountered the same thing. It seems to me that an increase in this type of juror misconduct ought reasonably to be addressed at jury selection, by way of incisive voir dire.

At least two judges, subsequent to the Merrimack County juror’s conviction, took the initiative to address jury panels especially on the importance of following the Court’s orders; and to assess jurors for willingness to comply. There appears to be no dispute among judges and lawyers as to the timing of the efforts to address this compound problem.

Principles of fair trial ought not to have to wait for extensive definition of the problem and development and refinement of a process to address it, when a proven process is available. It is my understanding that those judges who have allowed attorney-conducted voir dire have had positive experiences. People are used to standing pat in the face of authority, but the difference in the dynamic when interacting with a more equal player – the lawyer – can reveal a world of information. The lawyers also have a more directed approach in line with their knowledge of the issues and evidence.

Whether or not we enact the Michigan rule, and/or take away jurors’ web-enabled cell phones, if we are serious about meeting current technological and quasi-political challenges to the integrity of the fundamental right to a fair trial, attorney-conducted voir dire may be the process that is due.

Ted Barnes

NHLAP: A confidential Independent Resource

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