Episode 27: What to do with the laughing juror

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SM JUROR Podcast #27: State v. Baumgartner, No. 46386, 2019 WL 6463113 (Idaho Ct. App. Dec. 2, 2019).

State v. Baumgartner, No. 46386, 2019 WL 6463113 (Idaho Ct. App. Dec. 2, 2019).

Summary: In Episode #27 of the SM JUROR Podcast, Juror Misconduct Law in Review, Attorney Nilgün Aykent Zahour analyzes the juror misconduct issues in State v. Baumgartner, No. 46386, 2019 WL 6463113 (Idaho Ct. App. Dec. 2, 2019). Issue: What to do with the laughing juror.


Hi everyone!  This is Nilgün Zahour from SM JUROR and in Episode 27 of our podcast, Juror Misconduct Law in Review, we’re going to examine the juror misconduct issues in the case of State v. Baumgartner, which is out of Idaho.  This case was decided on December 2, 2019 and I’ll be sure to put the full citation of the case in our episode notes. 

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Now in today’s episode, we’re going to address what to do with the laughing juror. When you think about it, this could really be a lawyer’s nightmare if it isn’t handled correctly. What if a juror is laughing at you, your client, a witness or even the judge?  How can you address this problem in terms of juror misconduct so that your client is not denied a fair trial?

To get you in the right mindset, let’s visualize a hypothetical scenario with a laughing juror. Unless there is something comical in the trial testimony or presentation of the evidence where everyone may be briefly amused, an individual juror laughing during trial could be cause for concern.

Now in this case, the defendant, Baumgartner, was convicted of various drug-related crimes.  He represented himself during trial and also pursued his own appeal.  He had three challenges related to the composition of the jury.

First, he argued that the district court inappropriately denied his right to use his peremptory challenges to remove two jurors who were allegedly laughing at him or “belittling” him. Second, he argued that his jury was not composed of a “a local jury”, and third, he argued that the district court inappropriately removed a juror in the middle of trial without providing a reason or obtaining Baumgartner’s consent.

Of these three arguments, the Court of Appeals chose only to address the first argument about the laughing and belittling jurors. The problem with Baumgartner’s second and third arguments was that these arguments were raised for the first time on appeal, and as such, were waived.  Remember, when you’re dealing with juror misconduct issues, you’re dealing with the abuse of discretion standard of review.  This means that you are arguing to the reviewing court that the trial court abused its discretion when it ruled on the juror misconduct issue you presented to it during trial.  If you did not present a juror misconduct issue to the trial court, then you cannot bring it up for the first time on appeal, under a de novo standard of review.

Unfortunately, many attorneys prepare their juror misconduct legal arguments and appellate briefs with the misconception that the reviewing court will give them “a second bite at the apple” by deciding the issue in their favor.  However, under the abuse of discretion standard of review, the reviewing court’s analysis is not to re-decide the juror misconduct issue, nor decide the juror misconduct issue for the first time. Instead, the reviewing court’s job is to decide whether the trial court’s handling of the issue was an abuse of the trial court’s discretion.

So here, Baumgartner’s second and third arguments were not even considered by the Court of Appeals since Baumgartner raised them for the first time on appeal.  The only remaining juror misconduct issue then was the purported laughing and belittling jurors.

Now remember, Baumgartner was a pro se litigant and a pro se appellant. He framed his issue by claiming that the district court denied his right to exercise his peremptory challenges to remove two jurors who were laughing and belittling him.

Let’s look at the specific scenario.  During trial when the jury returned to the courtroom to receive their final jury instructions, Baumgartner claimed he heard a juror laughing.  He told the district court that he “would like to preemptive challenge that person.”  In response, the district court stated it did not hear laughter.

Although we are dealing with a pro se litigant, procedurally what is happening here?  Baumgartner hears a laughing juror and he objects to that juror and moves to remove the juror by using his peremptory challenge. In response, the district court indicates that it did not hear any laughter and the trial proceedings continue.

The issue here was that Baumgartner wanted to exercise the use of his peremptory challenge to remove the juror. The problem was, however, that peremptory challenges are only available during the jury selection process.  If you don’t use your peremptory challenges during the jury selection process, you cannot use them later during trial. Here, the trial had already begun and was actually reaching its conclusion where the jury would be receiving their final jury instructions. The use of the peremptory challenge to remove a juror was procedurally unavailable.

Under this fact pattern, the appropriate procedural challenge to the laughing juror would have been to move for a new trial based on juror misconduct. Such a motion entails a required two-fold burden of proof.  First, Baumgartner must present clear and convincing evidence that juror misconduct has occurred – here he must establish that a juror was, in fact, laughing at him. The second requirement indicates that the trial court must be convinced that the argued juror misconduct, here the juror’s laughter, reasonably could have prejudiced Baumgartner in receiving a fair trial.

When we look at the burden of proof and what is provided in the Record on Appeal, we can see that Baumgartner failed to establish the first requirement, by clear and convincing evidence, that juror misconduct occurred. He claimed a juror was laughing at him and wanted to remove that juror. The district court responded that it did not hear laughter. 

Although Baumgartner presumably may have identified the juror as the subject of his peremptory challenge, the fact that there are two differing statements about whether or not the juror was laughing demonstrates that the burden of proof was not met. Since the first requirement is not met, the second requirement for a motion for new trial based on juror misconduct would not even be addressed.

In essence, although Baumgartner claimed he heard a juror laughing at him, he did not preserve evidence in the record to establish his burden of proof that a juror was laughing or that he was somehow prejudiced by that laughter.  His attempt to use a peremptory challenge to remove the juror, during trial and before the jury received its final instructions, was an unavailable remedy.  He did not meet his burden of proof in establishing that juror misconduct existed or that he was prejudiced by it.  As such, his convictions were affirmed.

So let me offer you some strategies if you’re faced with the situation of the laughing juror at your trial. Now in reality, perhaps you just don’t like the juror for whatever reason.  He or she is rubbing you the wrong way, but you’re stuck with the juror on the jury.  Remember, it’s too late to use a peremptory challenge, but you want to legitimately remove the juror because of these laughing incidents.

Let me make an important point here: Don’t get sucked into the idea that a laughing juror could be your ticket to a new trial.  Remember, appeals are very expensive and you don’t want to pursue a frivolous appeal.  You’ve got to a make a record during the trial and demonstrate how this laughing juror prejudiced your client.

First, you need to establish that the laughing juror is committing juror misconduct.  You need to assess the situation and determine what is making the juror laugh?  Is the juror distracted – perhaps looking at their phone or making eye contact with another individual in the courtroom?  Is the juror laughing at someone or something in a belittling or mocking way during trial testimony, while the attorneys are speaking, or while the judge is addressing the jury? Has the juror laughed before?  Is this a pattern?

The work involved in focusing on a particular juror’s actions related to the purported laughter is tremendous.  Has this disruption affected the trial proceedings? If so, demonstrate how. Was the rest of the jury affected by the laughter? Did the laughter prevent others from hearing trial testimony which was key to your theory of the case?

You must bring the incident to the trial court’s attention in real-time, making your record to establish juror misconduct. Is the juror focusing on the evidence or preventing others from focusing on the evidence.

When you bring the laughing incident to the trial court’s attention, you must ask for a remedy – remove the juror, silence the juror, admonish the juror, or question the juror. The trial court’s ruling is critical because under the abuse of discretion standard of review, you must demonstrate to the reviewing court that the trial’s court rulings were an abuse of discretion and that the trial court should have ruled as you suggested.

Now remember here that perhaps the laughing incident or the pattern of laughing distractions causes you to argue that a mistrial is necessary.  Perhaps the trial court assesses the situation and rules that an admonition is appropriate.  Just because the trial court did not rule your way does not mean it abused its discretion when it ruled on the juror misconduct issue. That’s a critical point to remember. Also, a mistrial or a new trial is a drastic remedy, so determine whether a less drastic remedy could appropriately address the issue.

One incident of laugher will not establish juror misconduct, so you must demonstrate on the Record on Appeal that a pattern of disruption was occurring and that at each identifiable incident, you addressed the matter with the trial court and the trial court’s response in dealing with the situation progressively prejudiced your client into receiving a fair trial.

Can a laughing juror be a basis for a new trial?  All juror misconduct issues are heavily fact dependent, but if you’re dealing with one incident of laughter and you bring it to the trial court’s attention and are not satisfied with the trial court’s remedy to the situation, determine whether the trial court’s response was appropriate, even though it did not grant you a new trial.  Chances very heavily weigh against you if that’s your only basis for appeal.

And that’s it for today’s analysis of the juror misconduct issues in this case.  If you like what you hear and want more, please subscribe to our podcast in Apple Podcasts 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.