Episode 17: The delay in presenting known juror misconduct backfires

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Episode 17 of The SM JUROR Podcast on Juror Misconduct Law: The delay in presenting known juror misconduct backfires

People v. Lowe, 166 A.D.3d 901, 88 N.Y.S.3d 214 (N.Y. App. Div. 2018).

Summary: Nilgün Aykent Zahour analyzes the juror misconduct issues in People v. Lowe, 166 A.D.3d 901, 88 N.Y.S.3d 214 (N.Y. App. Div. 2018).  The issues we’re going to discuss are the effect of the unexplained delay in notifying the trial court of known juror misconduct, and the denial of a motion for evidentiary hearing to further investigate any alleged juror misconduct.


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 17, we’re going to be looking at the case of People v. Lowe, which is out of New York. The issues we’re going to discuss are the effect of the delay in notifying the trial court of known juror misconduct, and the denial of a motion for evidentiary hearing to further investigate that issue.  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 People v. Lowe.

Hi everyone. This is Nilgün Zahour from SM JUROR and in Episode 17 of The SM JUROR Podcast on Juror Misconduct Law, we’re going to be looking at the juror misconduct issues in the case of People v. Lowe, which is out of New York.

This case was decided on November 21, 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.

Now this opinion is very short, but it’s jammed packed with important principles, so I wanted to discuss it today.  Here, the defendant was convicted of assault in the first degree, 2 counts of criminal possession of a weapon in the second degree and attempted murder in the second degree.

The defendant moved to set aside the verdict on the ground of juror misconduct, but the court, in its discretion, denied the motion.  The defendant appealed, but his convictions were affirmed.

So, let’s take a look at this.  Here, the opinion doesn’t tell us what the alleged juror misconduct was.  The only significant fact we know about the alleged juror misconduct was that it was admittedly known to the defendant prior to jury deliberations and the verdict.

Now why is that critical?  Remember, in juror misconduct cases, we’re dealing with the abuse of discretion standard of review.  What this means is that the Record on Appeal must establish what the alleged juror misconduct was, along with the trial court’s decision in ruling on the juror misconduct issue as it did.

If some sort of juror misconduct is already known by a party, but that party doesn’t inform the trial court about it before the jury deliberates and renders a verdict, then there’s no way for the trial court to remedy the situation because the trial court didn’t know about it.  And if it didn’t know about it, the reviewing court is not going to find that the trial court abused its discretion in denying the motion for mistrial or a motion for new trial or a motion to set aside the verdict under these circumstances.

Surprisingly, this sort of thing happens quite a bit.  A party knows about some sort of juror misconduct, but doesn’t inform the court about it – the thought process being that the party will hold on to that issue in its back pocket just in case they don’t win.  But that sort of strategy will always backfire because the party is deemed to have waived the juror misconduct issue.

Now in this case, again, we don’t have the specific facts, but it appears that the trial court inquired as to why the defendant did not bring up the issue before jury deliberations, and the opinion states that the defendant’s explanation for the delay was not supported by the record.  So, we don’t know what excuse the defendant gave for waiting to present the juror misconduct issue until after the adverse verdict.  All we know is that the trial court didn’t buy that excuse and there were no facts in the record to support that excuse.

Now, again, we don’t know what the alleged juror misconduct was, but the opinion does state that the trial court did conduct a sufficient inquiry of the juror involved and the record demonstrated that any alleged juror misconduct did not prejudice any of the defendant’s substantial rights. The opinion also stated that the defendant was not entitled to any type of evidentiary hearing or some continuance to further investigate the alleged misconduct.

So, let’s take a look at some strategies which can help you if you are involved in a similar situation.

First, if you know of any type of juror misconduct, it is imperative that you bring it to the attention of the trial court.  Rolling the dice and hoping you will win your case without informing the trial court of the juror misconduct issue will waive the issue if you lost the trial.

Next, remember the standard of review, which is an abuse of discretion.  Juror misconduct cases are not reviewed as de novo cases, and unfortunately, many attorneys interpret the abuse of discretion standard of review as a do-over where the reviewing court can look at the facts and hopefully decide the case differently than the trial court.  This is an incorrect analysis and that is why the failure to inform the trial court of the alleged juror misconduct will preclude you from investigating a claim which potentially could have been valid.

On that note, we see that the defendant argued that the trial court did not investigate the matter sufficiently, but the trial court did question the juror involved and this was pursuant to the trial court’s discretion.  However, it was also within the trial court’s discretion not to question the juror involved, particularly since the defendant knew about the misconduct but did not bring it to the court’s attention in time.

Here, the actions of the trial court were appropriate in questioning the involved juror and there was no abuse of discretion in denying any type of continuance to give the defendant time to further investigate the issue.  It’s done.  It’s over with.

The moral of the story is that if you discover any type of juror misconduct during trial, bring it to the attention of the trial court so that it can, in its discretion, decide how to handle the issue.  If you wait until after the verdict is rendered, you most likely will have waived the issue unless your explanation for the delay is supported by the record.    Not only do you waive the issue, but you also waive further investigation of the issue and the trial court’s denial of your motions to further investigate will not be an abuse of discretion under those types of scenarios.

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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