Episode 23: Is a sequestered jury’s fear of not being fed an adverse influence on their deliberations?

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Episode 23 of The SM JUROR Podcast on Juror Misconduct Law: Is a sequestered jury’s fear of not being fed an adverse influence on their deliberations?

State v. Kaiser, No. A17-0571, 2018 WL 2407187 (Minn. Ct. App. May 29, 2018).

Summary: Nilgün Aykent Zahour analyzes the juror misconduct issues in State v. Kaiser, No. A17-0571, 2018 WL 2407187 (Minn. Ct. App. May 29, 2018). The issue we’re going to discuss is whether a sequestered jury’s fear of not being fed adversely influenced or pressured them in their 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 in Episode 23, we’re going to be looking at the case of State v. Kaiser, which is out of Minnesota.  The issue we’re going to discuss is whether a sequestered jury’s fear of not being fed adversely influenced or pressured them in their deliberations.  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. Kaiser.

Hi everyone. This is Nilgün Zahour from SM JUROR and in Episode 23 of The SM JUROR Podcast on Juror Misconduct Law, we’re going to be looking at the case of State v. Kaiser. which is out of Minnesota.

This case was decided on May 29, 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.

Today, we’re going to be talking about fears that jurors experience when serving on a jury.  When we think about juror fears, what comes to mind first is a perceived or real fear by jurors for their safety, because they served on a high publicity criminal or civil trial, or maybe because they felt threatened by a party or the party’s family or even the public if the verdict went a certain way.

And today’s topic may surprise you or even make you laugh a little, but I guarantee that this was a real issue in a real case.  The fear that we’re going to discuss today is the jury’s fear of not being fed and whether that event pressured jurors in their deliberations.

Now before you laugh, I want to focus on a real-life situation from a practical standpoint.  Here’s the scenario: the jury is sequestered. They have no communications with the outside world. They sit through trial each day and then return to a secret destination, usually a hotel, where they eat together, and then they have no access to family, friends, social media or the news.  When trial goes a little bit longer than usual, schedules and plans get backed up and something goes wrong because the jury was not fed.

Is this acceptable? Certainly not.  But we’re going to focus on whether that event pressured the jury in the deliberations to arrive at a certain verdict.

What happens next?  There was a delay.  A big delay.  Now, if you’re thinking that these jury members are all adults and they can cope with some sort of oversight, that’s true.  But in the same breath, these are real people and they do need to eat – especially since they were not warned that they would not get dinner.  Basically, since they’re sequestered, they’re locked up. They can’t get food by themselves somewhere and, for whatever reason, someone dropped the ball and arrangements to have them fed fell through the cracks. 

But, if the jury is not fed one day, could that impact whether certain jurors succumb to the majority viewpoint just to get deliberations over with? Or, could it impact the speed with which they render a verdict – meaning they have to come up with a verdict so they can be released from jury duty and then finally have some dinner?

Let’s take a look at the facts of this case.

Here, the defendant was convicted of two counts of second-degree felony murder, with third-degree assault and malicious punishment of a child. The jury had been sequestered in a hotel to deliberate and the opinion states that there were some “administrative challenges” in getting the jurors fed.  Those administrative challenges were not specifically identified, but many of us have experienced situations, in and out of the courtroom, where something goes much longer than expected and someone drops the ball when no arrangements are made to get everyone fed.  It could happen at a business meeting, a long deposition, a school event, something with your family, or even with a sequestered jury.

After sentencing, a juror contacted defense counsel reporting concerns about deliberations. She stated that while the jury was sequestered, they had not received dinner before 10:00 p.m. She also reported that one juror, who worked at a local restaurant, called the restaurant to get the jury some food. The juror described that the following morning, based on their fear of being sequestered and not being fed, some jurors felt pressured to succumb to the majority and find the defendant guilty. 

Before we go any further, I want to highlight 2 important facts here.  First, notice that a juror called his employer and arranged for the jury to be fed.  Let’s take apart this scenario for a second. First, you have a juror who presumably is ignoring the district court’s instruction not to have any communications with anyone about the case. Now we don’t know if anything substantive was discussed, but we know that the juror was telling his employer that the jury was starving and needed food. 

The next thing I want to point out is the situation. You’ve got this group of jury members who sat through trial and deliberations all day and they’re tired and probably just want to eat and go to bed. Now, I’m speculating here, but I can imagine that they’re waiting and waiting and waiting, but no dinner is coming.  Obviously, they were talking about the fact that they needed to eat, and one juror volunteered to call his restaurant to get food.  And, as the opinion states, they didn’t eat until 10:00 p.m. What’s also important is that we don’t even know if the court knew at that time that there was a problem in not getting the jury fed.

Now remember, all this information is being told to defense counsel by a juror after sentencing.  So, let’s examine that juror’s motivation.  Maybe the juror was not happy with the verdict or had second thoughts so you should always consider whether a juror might have a hidden motivation in approaching you about what occurred during deliberations.  Also consider whether there was jury polling because if a juror stated on the record that he or she agreed to a verdict, then that fact would contradict any later statement they made that they did not agree to the verdict, felt guilty about it or had second thoughts.

After talking with the juror, defense counsel then moved for a Schwartz hearing, arguing that the call to the restaurant was improper and the jury’s discussions about food influenced the outcome of the deliberations.

A Schwartz hearing is an evidentiary hearing which allows the defendant to question jurors under oath to determine whether jury misconduct occurred, or any outside influence improperly affected the verdict. When we’re talking about an outside influence, we mean that a juror or the jury was exposed to some extraneous evidence which may have impacted how they arrived at their verdict.

Before a Schwartz hearing is allowed, the party requesting the hearing must establish a prima facie case of misconduct to obtain it. This means that the requesting party is required to present evidence which “standing alone and unchallenged, would warrant the conclusion of jury misconduct.”

Now in order to establish a prima facie case we have to look at the events standing alone and unchallenged to see if there any juror misconduct. The first event is the juror calling his restaurant employer to get food for the jury.

Now remember, defense counsel wants a Schwartz hearing so that he can question jurors under oath so see whether the event of not being fed influenced their deliberations such that some jurors felt pressured in arriving at a certain verdict.

The only information the opinion provides about the juror’s call to his restaurant employer was to get the jury food because it was getting pretty late. There’s nothing in the opinion about that juror discussing the facts of the trial with his employer.  The conversation is about getting food. And if there would have been more to that conversation, then we know that defense counsel would have included those important facts in his motion for a Schwartz hearing to fortify his prima facie burden.

Put another way, was the juror’s contact with the restaurant to get food for the jury an outside influence on the verdict?  The district court said no, it was not, and denied the motion for a Schwartz hearing, finding that the stress of deliberations, along with being sequestered and arranging for a late meal, were not indicative of misconduct. Now what this means is that the district court is saying that the defendant did not meet his burden of proof in providing a prima facie case of juror misconduct.

The district court also found that “the notion that food would be withheld from the jury” was not a credible one and the Minnesota Court of Appeals agreed holding that “the idea that the jury would continue not to be fed if they continued deliberations is implausible.”  There was a mistake and an oversight. A big one, and the opinion said that courts should make every effort to avoid such a situation. 

Now, I want to discuss what the concerned juror told defense counsel – essentially that this fear of not being fed might have impacted or influenced deliberations because some jurors might have felt pressured into voting a certain way.  What this means is if there was no unanimous agreement on the verdict, the deliberations would continue and the jurors may face this issue of not being fed all over again.

So, we’re talking about pressure.  Jury pressure.  What are those conversations that are occurring while the jury is going back and forth with discussing the evidence and are there comments like, “let’s get this over with so we don’t face another day of not being fed” or “come on, I don’t want to be here all night” or “I’m going to die if I don’t eat something soon.”  Now, of course I’m making up these comments – they’re pure speculation, but what I want to emphasize is that evidence of jury pressure cannot be obtained because deliberations are secret.  How a jury arrived at a verdict is not discoverable unless there is evidence of exposure to an outside influence, and we already learned here that the call to the restaurant to get food was not an outside influence.

So, let’s talk about some strategies that you can employ, if you are dealing with a sequestered jury and if you are faced with a situation where a juror approaches you with concerns about deliberations and a perceived pressure in arriving at a certain verdict.

First, this seems so basic, but if you’re dealing with a sequestered jury, before the trial even starts, make sure that the court has a plan in place to guarantee that the jury will be fed dinner. Maybe this means quitting everyday at a certain time or making arrangements if some days have longer hours than others.

Second, get as much information from the juror as possible about why the juror had concerns about deliberations.  Did the juror have second thoughts?  Did the juror not agree with the verdict?  Consider whether jury polling was requested, which I always recommend.

Then, determine whether there was an outside influence – meaning was the jury exposed to some sort of extraneous evidence which adversely affected their deliberations and prejudiced your client?

Also, it’s important to understand that a juror contacting his restaurant employer to get food is not an outside influence.  That’s what this opinion taught us.  And also understand that a perceived fear by a sequestered jury of not being fed is implausible and not credible.  That’s a pretty far-fetched argument.

And finally, understand that jury pressure or heated discussions by jury members during deliberations is not an outside influence and will not be admissible evidence that you can use to argue that this “pressure” somehow prejudiced your client.

Keeping these strategies in mind can save your clients thousands of dollars in pursuing an unsuccessful appeal and can save you countless hours of time, when you need to be focusing on your trial strategies to win your trial or properly preserve your arguments for appeal.

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” for $25 off our regular CLE price exclusively for our podcast listeners.  This CLE is accredited/approved for 1.5 general credit hours in multiple 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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