Episode 21 of The SM JUROR Podcast on Juror Misconduct Law: The injection of a juror’s personal experiences and a juror’s translation effort
Palma v. Rite Aid Corp., No. B280445, 2018 WL 3640482 (Cal. Ct. App. Aug. 1, 2018).
Summary: Nilgün Aykent Zahour analyzes the juror misconduct issues in Palma v. Rite Aid Corp., No. B280445, 2018 WL 3640482 (Cal. Ct. App. Aug. 1, 2018). The issues we’re going to discuss are evidence of a juror’s personal experiences, factors used in rebutting the presumption of prejudice, a juror’s self-translation efforts, sleeping jurors, and jurors who would not deliberate.
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 21, we’re going to be looking at the case of Palma v. Rite Aid Corp., which is out of California. The issues we’re going to discuss are evidence of a juror’s personal experiences, factors used in rebutting the presumption of prejudice, a juror’s self-translation efforts, sleeping jurors, and jurors who would not deliberate. 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 Palma v. Rite Aid Corp.
Hi everyone. This is Nilgün Zahour from SM JUROR and in Episode 21 of The SM JUROR Podcast on Juror Misconduct Law, we’re going to be looking at the juror misconduct issues in the case Palma v. Rite Aid Corp., which is out of California.
This case was decided on August 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.
This case involved a disability discrimination and harassment claim, in which the jury found in favor of the defendant. The plaintiff moved for a new trial based on juror misconduct, which was supported by various juror affidavits. The trial court denied the motion and the plaintiff appealed.
The parties used multiple juror affidavits discussing what occurred during jury deliberations, and often times the affidavits contradicted each other. At the onset, I want to point out that it’s improper to utilize juror affidavits or declarations which discuss a juror’s subjective mental processes, as opposed to the consideration of objective, overt acts of juror misconduct. Some of the affidavits in this case discussed both subjective mental processes as well as objective, overt acts.
The first issue involves whether a juror’s injection of her own personal experiences into deliberations amounted to juror misconduct which was prejudicial to the plaintiff.
During deliberations, a juror, Juror Castro, described her personal experiences involving a coworker who had filed a disability claim. Her coworker had to file documentation that she had a medical condition and Juror Castro noted that that there was no such documentation in the instant case. Another juror cut her off, and Juror Castro did not discuss her coworker’s situation any further. Multiple jurors provided declarations about what Juror Castro said and that she was cut off.
By referring to her own personal experiences, Juror Castro reiterated that her coworker needed documentation of her medical condition to prevail on her disability case and in the current case, plaintiff did not provide any documentation of her medical condition. So, the issue becomes, did Juror Castro’s reference to a medical documentation requirement prejudice the plaintiff, who provided no such documentation, when the jury found in favor of the defendant?
The trial court denied plaintiff’s motion for new trial, finding that jurors are allowed to rely on their general knowledge and experience in evaluating the evidence and that this is not juror misconduct. It found that there was no evidence that the case was decided based on what the Juror Castro shared about her personal experiences.
When we look at the trial court’s finding that there was no evidence that the jury rendered its verdict based on what Juror Castro said, another way of saying this is that the plaintiff did not meet her burden of proof in the affidavits. The affidavits may have referred to Juror Castro’s comments, but they did not discuss how a juror or jurors relied on those comments to vote in favor of the defendant.
The Court of Appeals agreed, finding that Juror Castro’s sharing of her personal experiences relating to her co-worker’s discrimination claim was not juror misconduct and even if it was juror misconduct, the plaintiff was not prejudiced by those comments.
Now the first thing I want to point out is that the sharing of a juror’s personal experiences is not juror misconduct. As such, the inquiry really ends there. But here, the Court of Appeals went further, adding that even if Juror Castro’s sharing of her personal experiences amounted to juror misconduct, it was not prejudicial to the plaintiff.
If we characterize this incident as juror misconduct, then a presumption of prejudice exists, such that the presumption must be rebutted to indicate that the sharing of the juror’s personal experiences did not impact the verdict, which was adverse to the plaintiff.
Here, the Court of Appeals looked at the factors to be considered in determining whether the presumption of prejudice was rebutted, including “the strength of the evidence that misconduct occurred, the nature and seriousness of the misconduct, and the probability that actual prejudice may have ensued.”
In reviewing the entire record in this particular case, including the nature of the misconduct or other event, and the surrounding circumstances, the Court of Appeals found that there was no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the plaintiff.
So, here, any presumption of prejudice related to Juror Castro’s injection of her own personal experiences was rebutted. The Court of Appeals noted that jurors cannot erase their personal experiences. Additionally, the discussion did not concern the plaintiff or any law. The brief comments were about Juror Castro’s coworker. When we examine the submitted affidavits or declarations, there was no evidence in the record that these comments affected the verdict.
Additionally, there was no prejudice. Juror Castro was cut off and the foreperson reminded the jury that it could not consider this information, and the presumption exists that the jurors followed that instruction.
Of significance was that Juror Castro’s story stated that her coworker had to file documentation to prove her medical condition. Proof of medical condition was not an issue in Palma’s case, as the defendant had already conceded that Palma had a disability.
Next, we’ll take a look at how a translation issue may relate to juror misconduct. During the testimony of another employee, an interpreter was used to translate the testimony from Spanish to English. Here, a juror told another juror that the translator was not translating correctly and so he disregarded the translator’s translations. The plaintiff argued this action was in violation of jury instructions, which require that jurors must rely on the interpreter’s translations and not to re-translate themselves.
Before we go any further, I want to put the translation issue in the context of juror misconduct. If a juror is disregarding the translations of the interpreter in the courtroom and substituting their own translation, which is different from the translator, in essence they are relying on extraneous evidence.
So we have a situation where a juror is disregarding the translations of the interpreter and utilizing his own translation of the testimony. The Court of Appeals found that there was no undue influence because the juror who heard that remark found in favor of the plaintiff. What this means is that even if the juror used his own ability to translate, there was no prejudice because that particular juror found in favor of the plaintiff.
Additionally, there was no showing of actual prejudice from the disputed translation when the declarations of various jurors were examined. The plaintiff did not clarify how she was prejudiced by a juror’s disregard of the testimony that was unfavorable to her. She did not point to witness testimony that was ignored because of any translation issue. There was no evidence of how the translation affected the juror’s vote. Additionally, the plaintiff argued that the same translator was used for other witnesses and speculated that other jurors disregarded the testimony of those witnesses, but this was speculation. I also want to note that there was no showing of prejudice, even if the witness testimony was relevant.
The next issue we’ll look at is allegations of jurors refusing to deliberate and the sleeping juror. In this situation, there were juror declarations which indicated that three jurors refused to deliberate, stating that the plaintiff should not get any damages, while declarations from those jurors denied that they refused to deliberate. Putting this into the context of juror misconduct, a juror’s refusal to deliberate means that the juror has prejudiced the case and that means that the juror will find for or against a party, regardless of the evidence. Another way of putting this is that a juror’s refusal to deliberate means that they have a bias towards a party.
Here, there were conflicting declarations on whether some jurors refused to deliberate, but the trial court found that no juror refused to deliberate. The fact that those declarations were directly at odds which each other does not support a reversal of the trial court’s factual determinations and that’s because it’s the trial court who assesses the credibility of the witnesses. There may be conflicting declarations, but the trial court ultimately chooses which declarations it will believe and the reviewing court defers to those findings.
Finally, the plaintiff alleged that there was a sleeping juror. On many occasions, we see a party complaining about a sleeping juror. In this instance, the trial court put that issue to rest, pardon the pun, but noting that it monitored the jury and did not see any juror sleeping. As such, the appellate court is required to defer to those findings.
Now I always want to point out various strategies you can use if you encounter issues similar to those in this case.
On the issue of the juror sharing her personal experiences, keep these points in mind: First, a juror sharing a personal experience is not juror misconduct, but even if it were characterized as juror misconduct, use these questions to examine what occurred to decide whether a presumption of prejudice exists and whether that presumption can be rebutted:
- Did it involve a party or the law to make it relevant?
- How long did the juror discuss his or her personal experiences?
- Was the juror cut off from further sharing, and was the jury reminded to only consider things it heard in the court room? Remember, the jury is presumed to follow instructions.
- If you decide to add juror declarations related to a juror adding their personal experiences, do those declarations involve mental processes and emotions, because that answer will determine whether or not the declarations will be admissible. Evidence of a juror’s internal thought processes is not admissible to impeach a verdict.
- And finally, are you able to link the juror’s sharing of a personal experience to demonstrate that your client was prejudiced, such that a juror or jurors relied on that personal experience, to the exclusion of evidence heard in court, to render a verdict against your client?
Now on the translation issue, where you may consider pursing a juror misconduct issue based on a juror’s self-translation of testimony, consider these three key principles before you begin:
First, during voir dire, if you know that you will need a translator during the trial, ask prospective jurors whether they know the language which is going to be translated, and whether they can follow the trial court’s instruction to only utilize the interpreter’s translations and not their own translations.
Second, before you utilize a translator in your trial and you anticipate that there may be a translation issue because some of the selected jurors speak the foreign language, you may want to request that the court reporter keep a certified audio recording of the witness testimony. This doesn’t need to be done for every witness where a translator was used, but if there is a critical witness who needs an interpreter, you may want to consider this option. Ultimately, you may or may not need the audio tape, but it’s better to be safe than sorry, if a critical translation issue comes up relative to a juror.
Third, remember if there is testimony from other witnesses, where a translator was not needed, which addressed the same point that you are pursuing on the translation issue, understand that any juror’s self-translation problem could be characterized as harmless. So, if a juror’s declaration or affidavit indicates that an interpreter was not correctly translating a witness’s testimony, and the juror decided to disregard the actual translation and substitute their own translation, but there was other non-translated witness testimony that addressed the same issue, the juror’s substituted self-translation could be characterized as harmless. Keep this in mind to save you and your client a lot of time, effort and money.
Now, if you believe that a juror’s self-translation issue was juror misconduct which prejudiced your client, consider these additional strategies:
First, include in your motion a copy of the jury instruction which provides that the jurors must rely on the court interpreter’s translation. You want to make the instruction a part of the record to show that the juror disregarded the instruction, especially since there is a presumption that the jury follows the court’s instructions.
Second, include in your motion a copy of the relevant voir dire transcript where the juror admitted that they knew the language which was to be translated and that they would follow the trial court’s instructions related to the use of translators.
Third, if the juror with the translation issue ultimately voted in favor of your client, there is no need to pursue the translation issue because you cannot show prejudice. In other words, if the juror voted in your client’s favor, then the translation issue becomes moot, so you do not need to pursue it.
Fourth, isolate the relevant testimony from the court transcript and utilize a certification or affidavit from the interpreter indicating that he or she accurately translated all questions and all answers. These documents would be important for the Record on Appeal.
Fifth, show that transcript to the juror who disagreed with the translation and get an affidavit or testimony from the juror indicating how they translated the testimony.
Sixth, compare the two versions and identify what the difference was and determine whether that different translation could have had an adverse impact on the verdict. In this regard, the juror affidavit or testimony would have to indicate that their own translation impacted their ability to render a verdict in favor of one party or the other. Also present the correct translation to the juror and verify that they disregarded that translation, in favor of their own, and confirm that if they relied solely on the court interpreter’s translation, their verdict would have been different. This is important evidence you would need to attach to your motion for new trial.
On the issue of the sleeping juror, remember that if the trial court makes a statement that it monitored the jurors and found no juror was sleeping, that finding will not be disturbed on appeal, because the reviewing court will defer to the trial court’s factual determinations since the trial court can observe what actually is occurring, while the reviewing court is limited to their view of the Record on Appeal.
And finally, on the issue of jurors refusing to deliberate, remember that if you have conflicting juror declarations on that issue, it’s the trial court that determines which juror to believe, as it assesses the credibility of the witnesses, and the reviewing court will defer to those findings.
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.
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