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Abstract
Excerpted From: Georgetown University and The Georgetown Law Journal, Trials: Influences on the Jury, 49 Georgetown Law Journal Annual Review of Criminal Procedure 671 (2020) (49 Footnotes) (Full Document)
The Sixth Amendment guarantees the defendant the right to a jury that is impartial. The trial court is responsible for ensuring the defendant receives an impartial jury. Its findings may only be overturned for abuse of discretion.
Juror Disqualification and Substitution. The Federal Rules of Criminal Procedure provide for the substitution of alternate jurors to replace “jurors who are unable to perform or who are disqualified from performing their duties.” Failure to object in a timely manner to the substitution of a juror or dismissal of an alternate juror constitutes a waiver of the objection. The judge may allow the parties to stipulate to a jury of fewer than twelve persons if jurors are excused for good cause. Once the jury retires to consider its verdict, the trial court has sole discretion to excuse a juror for good cause and to allow the remaining eleven jurors to return a valid verdict.
Contamination by Extraneous Influences. The Supreme Court held that “any [unapproved] private communication, contact, or tampering ... with a juror during a [criminal] trial ... [is] presumptively prejudicial.” However, the Supreme Court also held that a post-trial hearing “in which the defendant has the opportunity to prove actual bias” is sufficient to decide the prejudice issue. Thus, the Constitution “does not require a new trial every time a juror has been placed in a potentially compromising situation.” Instead, trial courts should investigate jurors exposed to extraneous influences to determine whether prejudicial impact has actually occurred. Extraneous influences include juror contact with other people and extrinsic materials.
The trial court may conduct a hearing to identify and evaluate whether an extraneous influence has resulted in juror bias, though not all outside contacts necessitate a hearing. The scope of any such hearing, however, is limited by 606(b) of the Federal Rules of Evidence, which, “[d]uring an inquiry into the validity of a verdict,” bars juror testimony about emotional reactions or mental impressions developed during deliberations, but provides exceptions for the introduction of extraneous information or outside influence, and racial bias. A defendant who can establish prejudice as a result of extraneous influences is entitled to a new trial.
Visible Extra Security Measures and Prison Garb. The Due Process Clause prevents the government from taking certain security measures during trial that are prejudicial to the defendant in the absence of some essential government interest. During both the guilt and penalty phases of trial, the government may not use visible shackles on the defendant unless there is a special need, such as special security concerns or escape risks. However, placing uniformed security officers in the courtroom generally does not violate the defendant's due process rights.
The defendant also cannot be compelled to stand trial before a jury while dressed in identifiable prison clothing. However, if the defendant fails to object to wearing prison clothing, the compulsion necessary to establish a constitutional violation is negated.
Contact Between Jury and Judge. Contact between the jury and judge raises special considerations. A judge has discretion in replying to requests or inquiries from the jury, but should consult counsel before responding and should respond only in open court. Failure to follow this rule is subject to harmless error review.
If a jury in federal court is deadlocked in returning a verdict, the judge may make reasonable inquiries to determine whether the jury is truly deadlocked but, in doing so, may not inquire into the numerical division of the jury or its deliberative processes. A state trial judge's inquiry into the numerical division of the jury may constitute grounds for federal habeas corpus relief if such inquiry is shown to coerce the jury to reach a verdict, but not if the inquiry is “simply to assess the progress.” A judge who concludes that the jury cannot overcome a deadlock may, after informing counsel, declare a mistrial. In Allen v. United States, the Supreme Court approved the trial court's practice of urging a deadlocked jury to make further effort to reach a verdict. Such an instruction is known as an Allen charge, which must not be coercive. Some circuits therefore require the use of modified charges to mitigate against the potentially coercive effect of the original Allen charge language. The amount of time the jury deliberates following the Allen charge, although often a factor, will not itself indicate coercion. Most circuit courts allow successive Allen charges.
Pretrial and Trial Publicity. The constitutional requirement of impartiality does not mean jurors must be completely “ignorant of the facts and issues” of a case. However, publicity, either before or during a trial, can prejudice jurors and violate a defendant's right to an impartial jury. If jurors have potentially been exposed to prejudicial publicity, the court should inquire whether actual exposure occurred. To establish juror partiality, the defendant must show that publicity led to a presumed prejudice through either pervasive prejudicial publicity or actual prejudice in an individual juror.
A trial court's finding of juror impartiality will be overturned only upon a showing of manifest error. To succeed on a motion for continuance or change of venue to another area where publicity about the case is less pervasive, the defendant must show “a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial.” The judge may also sequester the jury and provide cautionary instructions to safeguard against prejudice.
The trial judge may not completely close the proceedings to the public unless there is a “substantial probability” that publicity will prejudice the defendant's right to a fair trial and reasonable alternatives to closure cannot adequately protect that right. Other steps that a trial judge may take to protect the fairness of the trial include limiting the number of reporters in the courtroom and regulating their conduct; insulating witnesses from exposure to the media; barring the release of information by police officers, witnesses, and counsel and prohibiting extrajudicial statements by counsel, parties, witnesses, and court officials and warning the media of the impropriety of publishing material not introduced at trial. If none of the remedies are effective in preserving the defendant's right to a fair trial and prejudicial publicity continues during the trial, the judge may order a new trial.
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