Civil Litigation Criminal Law Legal Topics Litigation Strategy

When the Jury Goes Rogue

20130709-221638.jpgWhat do you do when the jury goes out of bounds, even with the best of intentions, and finds against your client? You move for a new trial and get juror declarations to support your motion.

Here’s an interesting case: Janet Sartain was not charged criminally but was named in a wrongful death suit brought by the victim’s mother. In that civil case, the jury seems to have decided to use its verdict to make sure that Ms. Sartain was adequately punished; juror declarations stated that they needed to “send her a message” that she should have been prosecuted. Ms. Sartain’s attorney is crying foul and seeking a new trial based on juror misconduct, using jury declarations to support the motion.

Ms. Sartain’s attorney has the procedure correct: juror misconduct can only get into the trial record if you use juror declarations (or affidavits) in support of your motion for a new trial.

Here are some basics on juror declarations:

  • Juror declarations are admissible “to the extent they describe overt acts constituting jury misconduct, but they are inadmissible to the extent that they describe the effect of any event on a juror’s subjective reasoning process.” Barboni v Tuomi (2012) 210 CA4th 340, 349, 148 CR3d 581.
  • Juror declarations won’t be considered on appeal if they should have been, but were not, filed in the trial court in support of a motion for a new trial.
  • When juror declarations are in conflict, consider requesting a formal evidentiary hearing.

In addition to juror declarations showing misconduct, you and your client must file separate “no knowledge” declarations, i.e., declarations showing that neither the party nor the party’s attorney was aware of the misbehavior until after the verdict. “No knowledge” declarations (or affidavits) aren’t necessary when the alleged juror misconduct occurs after jury deliberations have begun, because counsel couldn’t have been aware of misconduct occurring during the jury’s secret deliberations.

For everything you need to know about jury management, from voir dire through remedies for juror misconduct, turn to CEB’s California Trial Practice: Civil Procedure During Trial, chap 17.

Related CEB blog posts:

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

One reply on “When the Jury Goes Rogue”

Good article. However, some say it is hard to get jurors to admit to juror misconduct. We of course do not refer to anything as “misconduct” during the interviews and have had considerable success at getting jurors to acknowledge such behavior. (See .)

Getting the court to grant a motion for a new trial even with such affidavits is another matter. It may involve other considerations, e.g., whether the court considers this as an “out” when he/she knows there was error that will result in a new trial anyway and they don’t want a record of being overturned by the higher court.

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