Episode 4: Can a juror’s questions about the burden of proof lead to juror misconduct?

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Episode 4 of The SM JUROR Podcast on Juror Misconduct Law: Can a juror’s questions about the burden of proof lead to juror misconduct?

Woods v. State, 2018 WL 4776185 (Nev. Sept. 21, 2018).

Summary:  Nilgün Aykent Zahour analyzes the juror misconduct issues in Woods v. State, 2018 WL 4776185 (Nev. Sept. 21, 2018).  The issues we’re going to discuss are the burden of proof in juror misconduct cases and evidence involving objective facts, a juror’s state of mind and the deliberative process, the presumption that the jury follows instructions, and the fact that there is no prejudice when the parties agree on how the trial court should respond to juror questions during deliberations.


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 we’re going to look at the case of Woods v. State, which is out of Nevada.  The issues we’re going to discuss are the burden of proof in juror misconduct cases and evidence involving objective facts, a juror’s state of mind and the deliberative process, the presumption that the jury follows instructions, and the fact that there is no prejudice when the parties agree on how the trial court should respond to juror questions during deliberations. Glad you’re listening because the only evidence you want the jury to hear is in the courtroom. Now’s let’s take a look at Woods v. State.

Hi everyone. This is Nilgün Zahour from SM JUROR and in today’s podcast, we’re going to be looking at the juror misconduct issues in the case of Woods v. State, which is out of Nevada.

This case was decided on September 21, 2018, and I’ll be sure to put the full citation of the case in our episode description.  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.

Now let’s just dive right into the situation.  Here, the defendant was convicted of multiple crimes including attempted murder, battery with the use of a deadly weapon, and attempted burglary while in possession of a firearm.  During deliberations, a juror asked the court these two questions, “Can the defendant in any way prove he was not there on the night of April 19, 2016 when the incident took place? And are there any records to prove his whereabouts to justify not guilty?”  The trial court discussed the questions with both parties, and without objection, responded by referring the juror to some of the jury instructions:

Specifically, the first paragraph of instruction No. 6, which stated that the defendant is presumed innocent, instruction No. 42, which stated that the defendant is not compelled to testify, and the last sentence of instruction No. 47, which stated that the court cannot supplement evidence.

Subsequently, the defendant was found guilty and appealed his conviction on various grounds, including juror misconduct, where he argued that juror misconduct violated his Sixth Amendment right to a fair trial by an impartial jury.  Now as a side note, the defendant raised the juror misconduct issue for the first time on appeal, so the Nevada Supreme Court reviewed the issue for plain error and explained the requirements for plain error.

“To be plain, an error must be so unmistakable that it is apparent from a casual inspection of the record.” “Under that standard, an error that is plain from a review of the record does not require reversal unless the defendant demonstrates that the error affected his or her substantial rights, by causing ‘actual prejudice or a miscarriage of justice.’” And, “the burden is on the defendant to show actual prejudice or a miscarriage of justice.”

So, the first question is:  What does the defendant need to prove to get his conviction overturned on the basis of juror misconduct?

The Court indicated that there were two requirements:  the defendant must first establish that the misconduct occurred and then, second, prove that the misconduct was prejudicial.  Now in this case, remember that the juror asked some questions and the trial court responded by referring the juror to specific portions of the jury instructions.  Defendant Woods argued that the juror’s questions and the subsequent guilty verdict evidenced that the juror did not follow the district court’s instruction regarding the presumption of innocence.

Juror misconduct may occur intrinsically such as when, for example, jurors engage in “conduct contrary to their instructions or oaths.”  And that’s going to be the issue here.  Did the juror who asked the questions of the trial court engage in conduct contrary to the jury instructions?  The instructions that the court referenced were that the defendant is innocent until proven guilty, that the defendant does not have to testify and that the court cannot supplement the evidence.  “[P]roof of misconduct must be based on objective facts and not the state of mind or deliberative process of the jury.”

The Court noted that the juror’s questions and verdict alone do not present objective facts demonstrating that the juror failed to follow the district court’s instruction. It said that “to reach that conclusion, this court would have to delve into the state of mind or deliberative process of the jury, which is not allowed.

So, we have to turn to the proof of the juror misconduct.  What’s the record show – only that the juror asked the two questions and that the court responded with specific references to some of the jury instructions.

We certainly cannot speculate about any other facts that are not in the record.  Additionally, the court stated that it cannot hear evidence of a juror’s state of mind and it cannot hear evidence of what occurred in the deliberative process of the jury.  That being said, defendant did not even present any evidence in these areas anyway.  There’s no juror misconduct here.  A juror asking the trial court a question is not juror misconduct.

Now, what about the issue of prejudice?

“Prejudice is shown whenever there is a reasonable probability or likelihood that the juror misconduct affected the verdict.”  Again, since we have no evidence of juror misconduct, the argument cannot be made that the defendant was prejudiced by it.

But there are two additional points I want to make here relative to proving prejudice.

First, the district court’s response to the juror’s question was approved by both parties.  Another way of saying this is that there was no objection on the record relative to the trial court’s response or method in addressing the juror’s questions.   Remember, in juror misconduct cases, we’re dealing with the abuse of discretion standard of review.  Since both parties agreed to how the trial court should handle the situation, by referring the juror to specific portions of the jury instructions, the defendant cannot now say that the trial court abused its discretion in how it handled the matter, especially since the defendant agreed or approved to the method.

And second, remember that the court generally presumes that juries follow district court orders and instructions.”  The presumption is in effect and there’s no evidence that any juror did not follow the jury instructions.

So, under these circumstances, the Nevada Supreme Court found that no juror misconduct occurred when the juror asked the questions of the trial court and then subsequently the jury found the defendant guilty.  Because there’s no juror misconduct, there can be no prejudice from alleged juror misconduct.  So, the defendant’s 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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