KY SC Sept 20 - Sluss- Jury issues and Facebook.

Ross Brandon Sluss v. Commonwealth, 2011-SC-000318-MR, ___ S.W.3d ___ (Ky. 2012)

Opinion by Justice Noble.  To be published. 

Jury issues and Facebook.

Sluss was convicted of murder, first degree assault, DUI, and tampering with physical evidence.  The case received much publicity in Martin County and was discussed often on Facebook and Topix.   After trial, Sluss discovered two of the jurors may have been Facebook friends with the victim’s mother.  “As a general rule, anything which is good cause for challenge for disqualification of a prosepective juror is deemed good cause for a new trial if not known or discoverable to the defendant or his counsel before the verdict and they were misled by a false answer on voir dire.”  The Supreme Court remanded the case for the trial court to determine if the two jurors were facebook friends with the victim’s mother and the extent and nature of the jurors’ relationship with her if they were.

Contributed by Brandon Jewell  

New Model Instructions to Jurors on Social Media Use

The Judicial Conference Committee for the federal courts has recently updated its instructions regarding jurors and social media.  These new instructions are available here

"The overwhelming majority of judges take steps to warn jurors not to use social media during trial, but the judges surveyed said additional steps should be taken," said Judge Julie A. Robinson, the Conference Committee on Court Administration and Case Management (CACM) chair. "The judges recommended that jurors frequently be reminded about the prohibition on social media before the trial, at the close of a case, at the end of each day before jurors return home, and other times, as appropriate. Jurors should be told why refraining from use of social media promotes a fair trial. Finally, jurors should know the consequences of violations during trial, such as mistrial and wasted time. Those recommendations are now part of the guidelines."

Another resource is GOOGLE, GADGETS, AND GUILT: JUROR MISCONDUCT IN THE DIGITAL AGE by Thaddeus Hoffmeister

[T]he Article explores possible steps to limit the negative impact of the Digital Age on juror research and communications. While no single solution or panacea exists for these problems, this Article focuses on several reform measures that could address and possibly reduce the detri-mental effects of the Digital Age on jurors. The four remedies discussed in this Article are (1) pe-nalizing jurors, (2) investigating jurors, (3) allowing jurors to ask questions, and (4) improving juror instructions. During the discussion on jury instructions, this Article analyzes two sets of jury instructions to see how well they adhere to the suggested changes proposed by this Article. This is followed by a draft model jury instruction.

“Juror Pledge” [“I will not do research on the internet”] - Jury Room Blog

read complete Jury Room post here

Jurors researching cases on the internet have been a thorn in the side of the justice system for years. The act of researching and bringing information back to fellow jurors (resulting in mistrial) has been called the “Google mistrial”. The problem has gotten so pervasive, a judge in Minnesota has begun a single-subject blog called Jurors Behaving Badly .

 

Here is the actual wording of the juror pledge in the Viktor Bout trial:

I agree to follow all of the Court’s preliminary instructions, including the Court’s specific instructions relating to Internet use and communications with others about the case. I agree that during the duration of this trial, I will not conduct any research into any of the issues or parties involved in this trial. Specifically, I will not use the Internet to conduct any research into any of the issues or parties involved in this trial. I will not communicate with anyone about the issues or parties in this trial, and I will not permit anyone to communicate with me. I further agree that I will report any violations of the Court’s instructions immediately.

Signed under penalty of perjury. 

____________________________

____________________________

(Sign and Print)

 

Dated: New York, New York

October 11, 2011

Featured Case - Equivocal Jurors

In Lemaster v. Com., an unpublished 4/21/11 decision by the Kentucky Supreme Court, the Court granted a new trial for failure to strike a juror who said she would require the defendant to present evidence of his innocence.  More interesting is the fact that the Lemaster Court ducked a second juror challenge, where it was argued the juror's answers were "equivocal."  And in another case decided by the Court on 4/21/11 the Court glossed over another challenge to an “equivocal” juror, when they could have squarely denied it.


Trial attorneys should be moving to strike all equivocal jurors who say, merely, "I hope I could be fair" or "I think I could be fair" or "I'll try my best to be fair."  It appears the Kentucky Supreme Court might be open to considering the issue if properly preserved.  Cf., Burnett v. Com., 2008 WL 746615, 4 (Ky. 2008) (Unpublished), in which the Kentucky Supreme Court analyzes the nature of equivocal responses in the context of a request for counsel, and held that ambiguous, equivocal words like “I don’t know,” and “I’m not really with the laws and stuff” cannot constitute a legally effective request for counsel.

Contributed by Susan Balliett

Facebook, Twitter and smart phones cause mistrials, appeals and overturned verdicts

One tweet every three minutes from people saying they are on jury duty.

As jurors go online, U.S. trials go off trackReuters

Reuters Legal, using data from the Westlaw online research service, a Thomson Reuters business, compiled a tally of reported decisions in which judges granted a new trial, denied a request for a new trial, or overturned a verdict, in whole or in part, because of juror actions related to the Internet.

The data show that since 1999, at least 90 verdicts have been the subject of challenges because of alleged Internet-related juror misconduct. More than half of the cases occurred in the last two years.

Judges granted new trials or overturned verdicts in 28 criminal and civil cases — 21 since January 2009. In three-quarters of the cases in which judges declined to declare mistrials, they nevertheless found Internet-related misconduct on the part of jurors. These figures do not include the many incidents that escape judicial notice.