Episode 11: The trial court’s broad discretion in investigating juror misconduct

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Episode 11 of The SM JUROR Podcast on Juror Misconduct Law: The trial court’s broad discretion in investigating juror misconduct

State v. Anderson, No. 34655-2-III, 2018 WL 5734623 (Wash. Ct. App. Nov. 1, 2018).

Summary: Nilgün Aykent Zahour analyzes the juror misconduct issues in State v. Anderson, No. 34655-2-III, 2018 WL 5734623 (Wash. Ct. App. Nov. 1, 2018). The issues we’re going to discuss are the trial court’s broad discretion in conducting investigations of alleged juror misconduct; jurors who see newspaper or media accounts of the trial during the trial; and jurors who know testifying witnesses.


Hi, this is Nilgün Zahour from SM JUROR and welcome to The SM JUROR Podcast on Juror Misconduct Law where our motto is, “Don’t let juror misconduct taint your verdict.”  We analyze current state and federal juror misconduct cases and provide attorneys with the strategies to identify, preserve and advance juror misconduct issues at trial and on appeal.  And, today in Episode 11, we’re going to be looking at the case of State v. Anderson, which is out of Washington.

The issues we’re going to discuss are the trial court’s broad discretion in conducting investigations of alleged juror misconduct, jurors who see newspaper or media accounts of the trial during the trial, and jurors who know testifying witnesses.  Glad you’re listening because the only evidence you want the jury to hear is in the courtroom. Now let’s take a look at State v. Anderson.

Hi everyone. This is Nilgün Zahour from SM JUROR and in Episode 11 of the SM JUROR Podcast on Juror Misconduct Law, we’re going to be looking at the juror misconduct issues in the case State v. Anderson, which is out of Washington.

This case was decided on November 1, 2018, and I’ll be sure to put the full citation of the case in our episode notes.  And, if you can, please leave us a review because we want your feedback and want to provide value to our listeners.  And of course, if you were involved in a trial where juror misconduct was an issue, please contact us so we can interview you for our podcast.

In this case, the defendant appealed from his convictions for multi-victim assault and murder.  Now the primary issue we’re going to discuss here is the trial court’s broad discretion in conducting its investigation of any juror misconduct issues.  Here, the defendant argued that his convictions should be reversed because there were two problematic juror misconduct issues with Juror 6 and Juror 13.

During the trial, a local newspaper ran a front-page story about the trial which included a picture of the defendant having his handcuffs removed in the courtroom.  Based on that newspaper article with its front-page photo, the defendant moved for a mistrial and a change of venue.

The trial court in its discretion, however, rejected both those options, and decided to question the jurors individually about whether they saw the newspaper article. Juror 6 admitted that he saw it that morning while buying some coffee.  He was asked what he could remember about the photo and he recalled that he saw the defendant standing up and maybe the back of the head of the defense attorney.  He didn’t mention anything about handcuffs.  When questioned further, he said he could remain impartial and that viewing the photo did not affect his view of the defendant.

The second alleged incident of juror misconduct involved Juror 13.  The prosecutor notified the court that his testifying detective recognized Juror 13, so Juror 13 was brought in for questioning.  She admitted that she knew the detective and also indicated that she stated that she knew him on her witness list form.  She was questioned by defense counsel and indicated that even though she knew the detective, she would give his testimony the same weight as everyone else.  She also testified that she could be fair and impartial.

Those are the two incidents of alleged juror misconduct.  After questioning all the jurors individually relative to the front-page newspaper story and photo, with further questioning of Juror 6 who admitted seeing the photo, and the questioning of Juror 13 relative to knowing the testifying detective, the trial court found that there was no juror misconduct and no prejudice to the defendant.

Now let’s break this down in terms of the trial court’s discretion.  The trial court has broad discretion in how it wants to investigate accusations of juror misconduct and it’s important to note that there’s no specific format.  The trial court’s approach in how it investigates the juror misconduct issue will not be overturned unless there’s an abuse of discretion.  The abuse of discretion standard of review also applies in situations where the trial court found that there was juror misconduct, but after further investigation, determined that there was no prejudice to the defendant.  Of course, if there’s no juror misconduct, then there’s not going to be any prejudice.  Here the trial court found that there was no juror misconduct, so there was no prejudice.

Now I want to point out that the juror misconduct arguments on appeal were listed as additional grounds for reversing his conviction which the defendant prepared pro se.  On the juror misconduct issues, the opinion doesn’t tell us anything more than what I’ve just stated, so I want to go through some strategic and procedural points that I think are important.

First, with respect to the newspaper article with the front-page photo of the defendant having his handcuffs removed in the courtroom, if you remember, the defense argued for a mistrial and a change of venue.  Now I want to point out that that strategy is completely premature.  The two options that the defense offered to handle the newspaper issue were rejected by the trial court, in its discretion, and the trial court opted to question each juror individually about the newspaper article.

Now again, the opinion doesn’t give us the details, but I imagine that the court merely asked each juror if they were aware of any newspaper articles or media coverage that came out that morning.  I highly doubt that a specific question was something like, “Did you see the photo of the defendant having his handcuffs removed in court?”  That type of questioning would draw attention to something that the jurors did not already know about.  As it was, only one juror, Juror 6, saw the newspaper that morning while he was buying coffee, and it’s significant that when asked about what he remembered about the photo, he stated that he saw the defendant standing up and maybe the backside of the defendant’s attorney.  The juror did not mention anything about handcuffs.

Also, he was asked if the photo had any impact on him on whether it affected the way he viewed the defendant, and he said “no.” and he also stated that he could remain fair and impartial.  These are critical questions to ask.

Here, since we’re looking at the trial court’s exercise of its discretion, there’s nothing unreasonable.  All jurors were questioned and only one juror saw the newspaper article and could not remember anything significant about the photo.  Although there was no questioning on whether the juror read the article, the important questions were that the photo did not affect his view of the defendant, and he stated that he could remain fair and impartial.

Now relative to preserving issues for appeal, there’s nothing in the record that indicates that the defendant was dissatisfied with how the trial court conducted the investigation, or whether the trial court failed to ask the jurors anything else.  Given the fact on how Juror 6 responded, a mistrial is certainly not warranted and neither is a change of venue, especially since none of the other jurors saw the article.

What’s also important here is that the trial court makes credibility determinations and it questioned Juror 6 and believed his responses.  There’s no juror misconduct and there’s also no prejudice.

Now, with respect to Juror 13, the trial court also used its discretion to question her after the prosecutor told the court that the prosecution’s testifying detective recognized the juror.  There’s no allegations here that the juror failed to disclose this relationship or somehow lied about it.  When questioned, she admitted she knew the detective and also pointed out that she disclosed that fact on her witness list form.  She wasn’t hiding anything.  And, she was further questioned by defense counsel and responded that she could remain fair and impartial and that she wouldn’t give the detective’s testimony any extra weight because she knew him.  There was a potential issue of juror misconduct, but upon investigating the matter, the trial court determined that there was no juror misconduct relative to Juror 13 knowing the detective and also no prejudice. And I want to point out that there was no motion to excuse the juror and no evidence to show that she was biased in any way.

There was no objection to having either juror remain on the jury, and that’s understandable because there was no evidence in the record supporting the fact that either juror should be removed.

So here, there were two potential incidents of juror misconduct which were adequately investigated by the trial court.  Since there was no abuse of discretion in how the trial court chose to handle its investigation of each matter, the convictions were affirmed.

And that’s it for our analysis of the juror misconduct issues in this case.  If you like what you hear and want more, please subscribe to our podcast and leave us a review.

And also check out our latest CLE on juror misconduct called: “Facebook & Today’s Juror: 2017’s 10 Biggest Juror Misconduct Events,” and use the code “podcast25”, that’s podcast two-five, for $25 off our regular CLE price exclusively for our podcast listeners.  This CLE is accredited and/or approved for 1.5 general credit hours in 30 states and I’ll put the link to the registration page in our episode notes.

That’s it for today. This is Nilgün Zahour from SM JUROR, and remember, don’t let juror misconduct taint your verdict.  See you next time.


Remember to use the coupon code “podcast25”, exclusively for our podcast listeners, for $25 off our CLE entitled, “Facebook & Today’s Juror: 2017’s 10 Biggest Juror Misconduct Events” which has been accredited & approved for 1.5 general CLE credit hours in 30 states. Click here to register for our CLE.

Because the ONLY evidence you want the jury to consider … is in the courtroom.


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