Dodging a Mistrial for Juror Misconduct

No Comment...jury misconductIn an age where reporters are Tweeting from Courthouses and Citizen Paparazzi (Snaparazzi) roam the streets with iPhones, one can imagine a slip of the tongue resulting in juror misconduct. 

In the nightmare case of an elderly defendant who drove through a farmers’ market, the question of juror misconduct surfaced via a reporter’s blog.  People v. Weller, 2009 Cal. App. Unpub. LEXIS 4685, 44-45 (Cal. App. 2d Dist. 2009).

A reporter on her post-verdict blog stated that one juror sought spiritual counseling from his minister during a recess from deliberations.  Weller, 44.  

The Problem: A juror cannot discuss a pending trial with a nonjuror.  Weller, 44.

The only evidence offered to show any juror misconduct was the blog.

The blog was insufficient to show any misconduct, because there was no evidence that the juror discussed the case with his minister.  Weller, 44. 

Dodging Juror MisconductThings could have gotten exciting (on an evidentiary level) if the juror had been questioned on what he talked to his minister about, which could have resulted with the juror claiming the clergy- penitent privilege.

This privilege gives the penitent the right to refuse to disclose a penitential communication.  Cal Evid Code § 1033. 

One can wonder if the Defense could compel disclosure to show juror misconduct by claiming the Defendant’s Constitutional right to a fair trial. My guess would be “no,” because the verdict had already been issued and an appellate court will not be doing any fact finding.

If this had come up during trial, then perhaps the Trial Court would have simply excused the juror to avoid a clergy privilege vs Constitution showdown.

Anyone who has confidences to maintain, be it a juror, or a doctor, or anyone who wants to hold a private conversation, should be very careful with what they say in public. The ability for “citizen journalists” to post information in “real time” on Twitter, Facebook or a blog is a fact of life that can ruin your day.

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg in 2013, 2014, and 2015, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.