Whether it is in the name of public protection, or simply not to have to return deliberations the following Monday, jurors in California and perhaps nationally, are engaging in misconduct at an alarming rate, flouting judges instructions and tainting the judicial system.

The criminal justice system in particular – with longer and more indeterminate “life” sentences, not to mention the death penalty – cannot maintain its constitutional integrity if it cannot ensure that jury trials remain free from contamination by renegade jurors willing to ignore the rules, their duties under the law and their oath.

Runaway Jury?

One instance of this runaway train occurred a few months ago in People v. Stanford. In that case, a Solano County Superior Court judge was forced to reverse a murder conviction after discovering that the jury blatantly disregarded the court’s instructions not to consult outside sources or rely on anything other than the evidence presented at trial.

The court received evidence that the jury engaged in a number of acts of misconduct. For example, it was alleged that jurors consulted a dictionary in an attempt to define a technical term used by a prosecution fingerprint expert. To make matters worse, it was also alleged that one of the jurors attempted to undermine a defense theory by informing other jurors during deliberations that he had personal knowledge one of the defense witnesses should not be trusted.

Finally, it was alleged that, without bothering to notify the bailiff or the court, the foreperson told the other jurors during deliberations that a friend of the defendant followed him around town and made a threatening gesture at him by pointing a finger as if he were firing a gun.

Instances of Juror Misconduct

The incident of alleged juror misconduct is not an isolated occurrence. I myself have had two convictions reversed in the trial court due to egregious acts of juror misconduct.

In one serious second-strike case, the court granted the defense motion for a new trial for several reasons, including the fact that several jurors physically threatened another juror who initially refused to change her verdict to guilty. The jurors also verbally threatened the holdout juror by warning that if the defendant were not put in jail, then she might be his next victim.

In another case, the district attorney conceded the defendant’s motion for a new trial after he learned the jurors specifically disregarded instructions by consulting an outside source to define the term entrapment, the key theory employed by the defense at trial. One juror was studying to be a paralegal and brought her textbook into the jury room. The jurors relied on the textbook’s definition of entrapment instead of the one set forth in the jury instructions in reaching a guilty verdict. Thus, they violated the instruction the court read to them, which specifically prohibited the use of outside sources or materials to assist in deliberations.

A colleague described to me another incident of jury misconduct in her recent three-strikes trial. Due to lack of space, the jury was deliberating in the courtroom. Without notifying anyone that they had a question, the jurors grabbed the judge’s copy of the Penal Code from the bench and read through it in an attempt to clear up questions about the law that arose during deliberations.

These examples are only the tip of the iceberg. An extensive line of cases relate all types of jury misconduct: jurors independently investigating crime scenes, coming into court drunk or sleeping through the trial, lying under oath or failing to reveal certain prejudices or personal connections with witnesses or participants. See People v. Wong-Loung,159 Cal.520(1911); People v. Honeycutt, 20 Cal.3d 150 (1977); People v. Martinez, 82 CalApp. 3d 1 (1978); People v. Pierce, 24 Cal.3d199 (1979); In re Stankewitz, 40 Cal. 3d 391 (1985); People v.Holloway, 50 Cal. 3d 1098 (1990).

Less Blatant Acts of Juror Misconduct Are More Common

These examples reveal only the most blatant acts of misconduct. Many less egregious acts occur each day. These include jurors who dispense with deliberate justice and instead render a “quick” verdict late on a Friday afternoon, or jurors who are bullied to the point that they fail to provide the parties with their right to each juror’s individual verdict. See People v. Aeschilmann, 28 CalApp 3d 391 (1972).

The responsibility for the proliferation of misconduct cannot be placed solely on irresponsible or renegade jurors. After all, jurors get paid almost nothing for performing these essential duties, sacrificing days, weeks and even months of time away from loved ones and work, sometimes without their usual income.

Furthermore, jurors are forced to slog through instructions that are highly technical and often incomprehensible, even to attorneys and judges.

Jurors Important to Democracy

Nevertheless, once a jury takes its oath, our democracy demands that each juror strictly abide by the instructions he or she swore to follow. One way to try to ensure that jurors understand and uphold their obligations is to train the panels about basic instructions, legal concepts and the dos and don’ts of sitting as a juror. The common acts of prohibited conduct should be emphasized.

With the growing number of reversals as a result of juror misconduct, it is difficult to argue that a jury school or training program is out of line or an absurd idea. In fact, it may be just what the Constitution ordered.