Wednesday, September 16, 2009

Don't talk to jurors about the Yankees during trial

What do you do when a juror talks to a witness during a break in the trial? When the trial begins, the judge tells the jurors they cannot speak to any of the parties or their attorneys, and that if a juror runs into anyone associated with the trial in the elevator (or anywhere else for that matter), the juror should not be offended if the defendant or an attorney ignores the juror.

The same rules apply when a juror unwittingly talks to a witness during a break. The judge still has to decide if the inappropriate contact requires some kind of action, i.e., a mistrial or sending the juror home. That's what happened in Luca v. County of Nassau, where the Court of Appeals on August 19 affirmed a Title VII retaliation verdict in favor of the plaintiff (a verdict in which the plaintiff received more than $600,000 in front pay, by the way).

A juror was seen talking with a witness. The witness said he did not know he was talking to a juror. They were not talking about the case; they were talking about the Yankees. It's not illegal to talk baseball during breaks in the trial, but, really, jurors should not be talking to witnesses about anything. This is certainly enough to file a non-frivolous appeal. But these appeals are not easy to win. The legal standard is as follows: "To secure reversal on this ground, defendants must demonstrate both juror misconduct and ensuing prejudice." The trial judge has to make a decision, but she enjoys great flexibility in dealing with the problem.

As the Court of Appeals puts it: "Because we recognize that in handling incidents of possible juror misconduct, a trial court confronts a 'delicate and complex task,' we accord it 'broad flexibility.' The court must be sure that any investigation it conducts does not “create prejudice by exaggerating the importance and impact of what may have been an insignificant incident.' Moreover, '[i]n many instances, the court’s reiteration of its cautionary instructions to the jury is all that is necessary.'”

Under this broad standard, the Court of Appeals lets the employment discrimination verdict in favor of the plaintiff stand. In dealing with the problem, the trial court did not speak to the juror; it only questioned the witness about the conversation. This is fine, since no one asked the court to speak to the juror. The trial court has discretion to assess the credibility of what the parties to that conversation told him when the court investigated what happened, and his determination that the fairness of the trial was not compromised is affirmed on appeal, particularly since the court reminded the jurors to avoid any conversations with anyone associated with the trial. Moral of the story: don't talk to jurors about anything during trial, be it the Yankees or any other topic.

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