Protecting Your Verdict from Juror Misconduct
By Joshua A. Machlus, Esq. of Colling Gilbert Wright & Carter, LLC, Orlando, Florida.
With the growing popularity of Facebook, Twitter, LinkedIn, YouTube, Google+ and other online social media, it has become increasingly easy to access, post, Tweet and share information, news and opinions. For jurors, these readily accessible means of sharing information can be problematic.
Naturally, the first step in protecting your verdict from juror misconduct is to ensure that jurors understand what is permissible and what is not. Today, the standard instructions by a judge to a jury state:
Many of you have cell phones, computers and other electronic devices. Even though you have not yet been selected as a juror, there are some strict rules that you must follow about using your cell phones, electronic devices and computers. You must not use any device to search the Internet or to find out anything related to any cases in the courthouse. In this age of electronic communication, I want to stress that you must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including email and text messages, about your jury service. You must not disclose your thoughts about your jury service or ask for advice on how to decide any case.
Furthermore, it is worth a minute or two during jury selection to reiterate to prospective jurors that they are not to share or acquire information online and emphasize that this prohibition extends to Facebook, Google+, YouTube, LinkedIn and all news websites – none of which are specifically mentioned in the jury instruction.
Next, it is wise for attorneys to conduct background searches on prospective jurors as soon as possible. In addition to Googling prospective jurors, there are several inexpensive online services that can be used to perform background checks. Accurint, available through LexisNexis, is one example. Again, the goal is to identify jurors who may have either been less than candid during jury selection or who may have issues in their background (for example, felony convictions, place of residence, or connections to the litigants) that preclude them from sitting as jurors. The sooner such issues are identified, the more likely they can be remedied.
If juror nondisclosure or other misconduct is discovered after jury selection, then it may be appropriate, under certain circumstances, to conduct a juror interview. If the situation arises, it is important to be familiar with the rules concerning juror interviews and what must be demonstrated in order to set aside a verdict on the grounds of juror misconduct.
The law discourages juror interviews and not all misconduct will cause a verdict to be set aside. See Parra v. Cruz, 59 So.3d 211 (Fla. 3d DCA 2011).
Court rules, such as Florida Rule of Civil Procedure 1.431, provide:
"A party who believes that grounds for legal challenge to a verdict exist may move for an order permitting an interview of a juror or jurors to determine whether the verdict is subject to the challenge. The motion shall be served within 10 days after rendition of the verdict unless good cause is shown for the failure to make the motion within that time. The motion shall state the name and address of each juror to be interviewed and the grounds for challenge that the party believes may exist. After notice and hearing, the trial judge shall enter an order denying the motion or permitting the interview. If the interview is permitted, the court may prescribe the place, manner, conditions and scope of the interview."
A juror interview is permissible under Rule 1.431(g) “where grounds are demonstrated which would subject the jury’s verdict to challenge prior to the interview. The rule, however, was not intended to authorize “hunting expeditions.” Schofield v. Carnival Cruise Lines, Inc., 461 So.2d 152, 154 (Fla. 3d DCA 1984) .
A trial judge has broad discretion to disallow juror interviews. “Where the record does not reveal any misconduct or irregularity on the part of any juror, the case is fairly and impartially tried and each juror is polled and announces the verdict to be his, it is improper to allow jurors to be interviewed.” Schofield v. Carnival at 155.
Juror interviews are not permissible where a party learns of juror misconduct prior to a verdict being entered, but does not raise the issue with the court until after the entry of an unsatisfactory verdict. Hampton v. Kennard, 633 So.2d 535, 537 (Fla. 2d DCA 1994).
Thus, if at attorney’s inquiry into a juror’s background reveals that he or she may have been less than candid during jury selection, then it may be wise to raise these issues with the court even if the attorney does not wish to question or strike the person off the jury. This will likely have the effect of preventing opposing counsel from later raising the issue after trial.
Similarly, where a prospective juror is vague or ambiguous in a questionnaire or during jury selection, the attorney must elicit more precise responses. Failure to do so may preclude the ability to later request that a verdict be set aside because of juror nondisclosure.
In the event that a juror interview is permitted, “the trial court must determine exactly what type of information will be elicited from jurors,” because Florida Statute §90.607(2)(b) “absolutely forbids any judicial inquiry into emotions, mental processes or mistaken beliefs of jurors.” Baptist Hospital of Miami, Inc. v. Maler, 579 So.2d 97, 99 (Fla. 1991).
If juror misconduct is discovered through a juror interview or otherwise, it does not necessarily mean that a new trial should be granted. “In determining whether a juror’s nondisclosure of information during jury selection warrants a new trial, courts have generally utilized a three-part test as spelled out in De La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla. 1995):
First, the complaining party must establish that the information is relevant and material to jury service in the case.
The juror concealed the information during questioning.
The failure to disclose the information was not attributable to the complaining party’s lack of diligence.
The court in De La Rosa affirmed the trial judge’s order for a new trial on the grounds that a juror failed to disclose his involvement in prior litigation. However, the court did not discuss what harm, if any, resulted from the juror’s nondisclosure. To that end, Judge Overton, in his dissenting opinion, stated:
"[b]efore a party to a lawsuit should be denied the benefit of a favorable verdict and forced to endure the time and expense of a new trial based on juror misconduct, the trial court should, at a minimum, interview the juror, with the attorneys present and then make a finding of whether the conduct was intentional and whether any party was prejudiced."
Recent cases applying De La Rosa emphasize that some showing of how the juror nondisclosure is pertinent to the underlying litigation.
A trial court’s order for a new trial was reversed because “the mere possibility that a juror was involved in prior claims does not show in and of itself that his point of view was affected so as to deprive the defendant of a fair and impartial trial.” (Fla. 3d DCA 2011); Simon v. Maldonado, So.3d, 36 FLW D839 (Fla. 3d DCA 2011)
A trial court’s denial of motion for new trial was affirmed where a juror allegedly knew the defendant’s mother “because the motion [made] no claim that the defense would have challenged the juror, if the juror had disclosed the relationship during jury selection.” ); Bolling v. State, So.3d , 36 FLW D792 (Fla. 1st DCA 2011).
Therefore, blogs, Facebook walls, Twitter accounts and other online forums used to share information and opinions can be both problematic and helpful to trial attorneys. They make it increasingly easy for jurors to improperly share and acquire information about lawsuits.
Given the commitment of time and costs that parties must dedicate to jury trials, it is obviously important that attorneys do everything possible to prevent favorable verdicts from being set aside. This includes understanding at the outset of a trial the legal rules governing juror misconduct and effective methods of preventing juror misconduct from causing a favorable verdict to be set aside.