Episode 16: The juror who says he will find the defendant guilty regardless of the evidence

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Episode 16 of The SM JUROR Podcast on Juror Misconduct Law: The juror who says he will find the defendant guilty regardless of the evidence

Brooks v. State, No. 73730-COA, 2018 WL 6134216 (Nev. App. Nov. 19, 2018).

Summary:  Nilgün Aykent Zahour analyzes the juror misconduct issues in Brooks v. State, No. 73730-COA, 2018 WL 6134216 (Nev. App. Nov. 19, 2018).  The issue we’re going to discuss is whether prejudice exists when jurors hear another juror, who wants to be excused, blurt out that he will find the defendant guilty, regardless of the evidence.


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 16, we’re going to be looking at the case of Brooks v. State, which is out of Nevada.

The issue we’re going to discuss is whether prejudice exists when jurors hear another juror blurt out that he will find the defendant guilty, regardless of the evidence.  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 Brooks v. State.

Hi everyone. This is Nilgün Zahour from SM JUROR and in Episode 16 of The SM JUROR Podcast on Juror Misconduct Law, we’re going to be looking at the juror misconduct issues in the case of Brooks v. State, which is out of Nevada.

This case was decided on November 19, 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 was convicted of battery resulting in domestic violence, felony battery resulting in domestic violence and strangulation.  Right after the jury was selected and empaneled, Juror 4 indicated that he was unable to appear for jury service the next day.  When the trial court refused to excuse him, Juror 4 informed the court clerk, in front of all the other jurors, that he would find the defendant guilty, regardless of the evidence.

The trial court then struck juror 4, replaced him with an alternate juror and then carefully canvassed the other jurors regarding the incident.  The opinion states that all of the jurors unequivocally stated that Juror 4’s comment and the incident would not affect their ability to remain fair and impartial. The defendant moved for a mistrial, but that motion was denied.  The trial proceeded and then the defendant was convicted.

Now let’s just step back a moment and look at the events surrounding Juror 4’s actions.  He’s selected to be a member of the jury and the trial is going to start the next day and he tells the trial court that he can’t make it.

Now although the opinion doesn’t discuss these points, I want to point out a few things.  First, we don’t know how long the trial was going to be and we don’t know what Juror 4’s reason was to say that he couldn’t attend jury service the next day.  But what’s critical here is that the trial court has discretion to grant or deny a juror’s request to be excused and whatever the reason was, the trial court rejected it.

Now relative to the motion for mistrial, the defendant had to show that there was juror misconduct and that he was prejudiced by that misconduct, meaning that the juror’s actions affected the outcome of the verdict.

It’s also important to note that the granting of a mistrial is a drastic remedy, so if there are less drastic alternatives available which can cure the problem, then the trial court is within its discretion to deny the motion for mistrial and order a different remedy.  And that’s exactly what happened here.

After Juror 4’s outburst saying he will find the defendant guilty, regardless of the evidence, the trial court struck him from the jury.  That action alone, however, did not remedy the problem.  First Juror 4 was replaced by one of the available alternate jurors.

Now since Juror 4’s remark was made in front of all the other jurors, the opinion states that the trial court carefully canvassed the jurors about the incident.  We don’t know the exact details about how this was done, but it’s important to note that the Appellate Court’s use of the words “carefully canvassed” means that the record reflected that there was careful questioning of each juror about the incident.  What’s significant here is that the opinion states that each juror unequivocally stated that they could remain fair and impartial.

And so we have on the record what Juror 4’s comment was, that the other jurors heard it, that they were carefully questioned about the incident, and that the trial court found that each juror unequivocally stated that they could remain fair and impartial.  And it’s also important to note that in these situations, the trial court assesses the credibility of the witnesses and that finding will not be disturbed absent an abuse of discretion because the appellate court cannot step into the shoes of the trial court.

The Court of Appeals noted that nothing in the record suggested that the defendant was prejudiced by Juror 4’s comments and so it found that the trial court did not abuse its discretion in denying defendant’s motion for mistrial.

Now there are some important points that I want to make here.

First, when we’re dealing with whether or not the trial court abused its discretion in denying a motion for mistrial based on juror misconduct, remember that the moving party must show not only that there was juror misconduct, but also that the juror misconduct prejudiced the defendant by denying him of a fair and impartial trial.

Second, keep in mind that the granting of a mistrial is a drastic remedy, meaning it most likely will only be granted if other less drastic alternatives did not handle the issue.  Toward that end, remember that under the abuse of discretion standard of review, if a less drastic remedy handles the situation, the trial court’s denial of a motion for mistrial will not be an abuse of discretion.  And what’s equally important here is that the record must be developed and preserved so that the reviewing court can ascertain what the situation the trial court was dealing with and what the trial court did.

Here, the defendant did not prove that he was prejudiced in any way by Juror 4’s comments.  Juror 4 was excused from the jury and then the remaining jurors were carefully canvassed to see if they could remain fair and impartial, despite hearing Juror 4’s comments.  The trial court made the finding that each juror unequivocally stated that they could remain fair and impartial and nothing in the record suggested otherwise.  In other words, the defendant did not meet his burden of proof to establish that Juror 4’s comments prejudiced him and denied him of a fair trial because the record demonstrated that Juror 4’s comments did not affect any juror’s ability to remain fair and impartial.

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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