JURY MISCONDUCT

By Monte E. Hester; June 1998

It is misconduct for a juror to provide information during deliberations that was not admitted as evidence during trial.  Once that fact is determined, then it is the obligation of the court to grant a mistrial or a new trial if the extraneous evidence “might” affect the jury’s verdict. Richards v. Overlake Hospital Medical Center, 59 Wash.App. 266, citing Gardner v. Malone, 60 Wn.2d 836 (1962), and Lyberg v. Holz, 145 Wash. 316 (1927).  “If the trial court had any doubt that the misconduct affected the verdict, it was obliged to resolve that doubt in favor of granting a new trial.”

Cases where the issues of granting or not granting a new trial or mistrial have been considered include the following:

Allyn v. Boe, 87 Wash.App. 722 (1997).  Juror during deliberations disclosed for the first time that she knew the defendant’s real estate expert and that “he would testify to anything.”

The court stated that the juror did engage in misconduct and that once such a determination is made that the court must make an objective inquiry into whether the extraneous evidence could have affected the jury’s verdict, not a subjective inquiry into the actual effect.  Any doubt as to whether the misconduct affected the verdict must be resolved against the verdict.

In State v. Cummings, 31 Wash.App. 427 (1982), the court remanded the matter back to the trial court for a hearing to determine if the alleged juror misconduct had occurred.  An affidavit had been obtained from the defendant’s wife which stated that she had overheard a conversation between a juror and a spectator during which the spectator said the defendant had beaten his wife, had gone to prison for it and that the spectator would not be surprised if defendant was guilty of the instant charge because he was “a con” and could be capable of anything.  An affidavit from a juror indicated that he heard the referenced juror and other jurors talk about the defendant being in and out of jail and having a record.

     The trial court stated that it read the affidavits in a light most favorable to the defendant and denied the motion for a new trial. 

     In remanding the case the court stated, “Where the question concerns consideration by the jury of matters not properly admitted into evidence, a new trial should be granted when there is reasonable ground to believe the defendant may have been prejudiced.”

     As the court said in State v. Lemieux, 75 Wn.2d 89 (1968), something more than a possibility of prejudice must be shown .  However, once misconduct has been shown and there is a reasonable doubt as to the effect, the doubt must be resolved against the verdict.

     The court in assessing the information which was the basis of the alleged juror misconduct stated that such information would associate the defendant with the “criminal class” and we cannot assume the jury was unaffected by such discussion.  The doubt must be, in the absence of findings to the contrary, resolved in the defendant’s favor.

     All of the cases require an objective consideration by the court of the potential of prejudice to the defendant because of the misconduct.  The cases are uniform in concluding that it is improper to ask questions of the jury for purposes of learning how they were affected by the information.