CHAPTER 35

JURY INTEGRITY AND THE RETURN OF THE VERDICT

§ 35.01 Irregularities - Extraneous Influences on the Jury

§ 35.02 - Nonextraneous Influences

§ 35.03 - Separation of Jury Before Verdict

§ 35.04 Procedure

§ 35.05 Inability To Reach a Verdict; The "Dynamite" Charge

§ 35.06 Form of the Verdict

§ 35.01

Irregularities - Extraneous Influences on the Jury

Whether or not the jury has been sequestered, outside influences should play no role in its verdict, and circumstances raising a potential for prejudicial influence require corrective action. The complaining party need only show "that an irregularity - i.e., anything creating `any suspicion of extraneous influences' - had the capacity to influence jury deliberations."{1} Once this objective showing has been made, the burden shifts to the other side to "show that the irregularity had no effect on the jury."{2} The test "is not whether the irregular matter actually influenced the result, but whether it had the capacity of doing so."{3} A jury, "like Caesar's wife," should be free of all suspicion.{4}

The Vermont Supreme Court applies this standard strictly. During jury deliberations in State v. Corey{5} a juror asked the sheriff to pace off a distance of 92 feet - the distance from which the defendant allegedly shot the victim. The trial judge ordered a mistrial sua sponte, and refused to revise his ruling even after the jury returned a verdict of acquittal. The Vermont Supreme Court affirmed the mistrial ruling, rejecting the defendant's argument that cautionary instructions would have been good enough.{6}

Other misconduct by court officers,{7} a juror's conversations with people who are not members of the jury{8} (including ex parte conversations with the judge),{9} overheard remarks,{10} and other observations, such as police action directed at the defendant or defense witnesses,{11} can all count as prejudicial influences.

§ 35.02

- Nonextraneous Influences

Vermont law does not spell out when improprieties in jury deliberations which do not involve outside influences (e.g., that minority jurors were unfairly bullied or coerced into a verdict) warrant corrective action. Claims of this sort run into the rule that jurors should not be allowed to impeach their own verdict. The rule is embodied in V.R.E. 606(b), which allows jurors to testify only about extraneous influences,{12} barring all testimony "as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions. . . ."

Two limitations are worth noting. First, the rule applies only to postverdict challenges, and does not limit voir dire when improprieties come to light before the verdict. Second, the rule is only a rule of testimonial competence and does not prevent proof by a third person about misconduct in the jury's deliberations.{13}

§ 35.03

Separation of Jury Before Verdict

In a felony case, unless sequestration is waived, the jury must be kept together until the verdict.{14} Keeping the jury "together" should not be construed literally, the Vermont Supreme Court has held, delicately noting the "needs of personal hygiene and separate rooms for sleeping. . . ."{15} The test is "whether or not a juror passes from the attendance and control of the court officer."{16} A "complete dispersion of the jury . . . `in which the jurors are permitted by the court to pass from under the eye of the officer having them in charge . . . is improper'" absent waiver by the defendant.{17}

When the jury has not been kept "together" in this sense, a mistrial should be declared even without a showing of specific extraneous influences.{18}

§ 35.04

Procedure

Once counsel finds out about a potentially prejudicial irregularity he or she should bring it to the judge's attention with a request for appropriate relief. The normal first step is a voir dire of the juror involved, in camera, with counsel present, and "a probing and tactful inquiry";{19} if there is a chance that one juror has learned prejudicial information and told it to others, there should be a voir dire of the rest of the panel, conducted individually. The need to engage in this process can be waived only by the defendant personally.{20}

Once the facts are known, the remedies include, in order of increasing severity, a cautionary instruction, removal of one or more jurors, and a mistrial. The latter two remedies can run into double jeopardy difficulties, however.

Removal of one or more jurors after the jury has been empaneled infringes the defendant's "valued right to have his trial completed by a particular tribunal[,]"{21} and the judge can take this step over defense objection only on specific findings that the juror has become disqualified.{22}

The power to order a mistrial over defense opposition is also limited by double jeopardy interests, to cases of "manifest necessity."{23} Of course, when a jury irregularity comes to light after the verdict the only remedy is a mistrial (or rather, the grant of a new trial), the evidence being regulated by V.R.E. 606.{24}

§ 35.05

Inability To Reach a Verdict; The "Dynamite" Charge

Judges can respond to protracted deliberations, and jury communications indicating an inability to reach a verdict, with instructions urging continued efforts, but they have to choose their words carefully so as not to coerce the minority jurors. The judge can properly tell the jury to continue deliberations until it is "certain or as certain as it [can] be that it [will] be unable to reach a verdict"; and to reach an agreement "if it [can] do so without violence to individual judgments and consciences."{25} But the charge can not "seem[] to make the duty of a juror to reach a verdict so strong an obligation that he must compromise his convictions to do so[,]" nor can it "lay[] a burden on the minority of a divided jury not only to reexamine their position, which is proper, but seemingly to yield those convictions produced in them by the facts, when the same facts bring the majority to an opposite result."{26} The charge should not impose on the jurors a "duty to decide" because "the burden is on the state to persuade an entire jury of guilt[,]" and "[w]hether its failure to do so is partial, as in a disagreement, or total, as in a not guilty verdict, the respondent is entitled to the benefit of the consequences."{27} When a charge of this sort is given, some courts require the judge to recharge on the state's burden to prove guilt beyond a reasonable doubt.{28}

The coercive potential of these instructions is magnified if the judge knows (and the jury knows he knows) how the jury has voted. But simply learning that the jury was divided eleven to one, without knowing whether the majority favored acquittal or conviction, was not enough to prevent a charge of the sort approved in Perry.{29}

§ 35.06

Form of the Verdict

The usual verdict in a criminal case is a general verdict of guilty or not guilty. In appropriate cases, for example when the prosecutor has proceeded on alternative theories, the judge can instruct the jury to return special verdicts.{30}

1. State v. Corey, 151 Vt. 325, 328 (1989) (quoting State v. Schwanda, 146 Vt. 230, 232 (1985), and State v. Woodard, 134 Vt. 154, 158 (1976)). The federal rule used to be the same but may no longer be. Compare Remmer v. United States, 347 U.S. 227 (1954) (government has burden to show that extraneous contact was not prejudicial) with Smith v. Phillips, 455 U.S. 209 (1982) (juror submitted application for employment in prosecutor's office during trial; defendant failed to show actual bias).

2. State v. Corey, 151 Vt. 325, 328 (1989).

3. State v. Ovitt, 126 Vt. 320, 329 (1967). See also State v. Schwanda, 146 Vt. 230, 233-34 (1985) (Hill, J., dissenting); State v. Brisson, 124 Vt. 211, 215 (1964).

4. State v. Woodard, 134 Vt. 154, 157 (1976).

5. 151 Vt. 325 (1989).

6. The court's further ruling that there was no double jeopardy bar to a second trial was overturned by the Second Circuit. Corey v. District Court, 917 F.2d 88 (2d Cir. 1990).

7. See State v. Ovitt, 126 Vt. 320, 325 (1967) (court officer purchased liquor to have with jurors' meals); State v. Demars, 101 Vt. 229, 232 (1928) (sheriff's communication with jury "poison[ed] the fountain of justice").

8. In State v. Prime, 137 Vt. 340, 342 (1979), a petition to nominate the prosecutor for a new term was circulated among the panel; the irregularity required either inquiry or a mistrial. In State v. Schwanda, 146 Vt. 230, 233 (1985), a friendly but irrelevant conversation between a juror and the prosecutor, and between the same juror and a court reporter, did not "meet the threshold test of capacity to influence."

9. Rushen v. Spain, 464 U.S. 114, 119 (1983) (judge should consult with counsel before responding to juror requests).

10. In State v. Woodard, 134 Vt. 154 (1976), a juror during a recess overheard the defendant speaking on the telephone about his need to prepare an alibi; the Vermont Supreme Court held that a mistrial should have been declared.

11. See State v. Griffin, 152 Vt. 41, 43-45 (1989) (during recess in trial police arrested defendant's son, who was also the principal defense witness; no showing that jurors witnessed the incident).

12. The rule allows testimony "on the question whether extraneous prejudicial information was improperly brought to the jury's attention, whether any outside influence was improperly brought to bear upon any juror, or whether any juror discussed matters pertaining to the trial with persons other than his fellow jurors."

13. V.R.E. 606(b), Reporter's Notes.

14. See § 27.12.

15. State v. Bartlett, 137 Vt. 400, 404 (1979).

16. State v. Bartlett, 137 Vt. 400, 404 (1979).

17. State v. Bailey, 144 Vt. 86, 101 (1984) (quoting State v. Anderson, 119 Vt. 355, 361 (1956)). The right can be waived by counsel. Bailey, 144 Vt. at 102-03.

18. Cf. State v. Bailey, 144 Vt. 86, 102 (1984) (defendant needed to show some "suspicion of extraneous influences" when counsel properly waived sequestration); State v. Bartlett, 137 Vt. 400, 404 (1979) (no separation of jury when it was allowed to break up into two groups for a walk). On the other hand, when the judge mistakenly discharges the jury and then immediately recalls it to clarify its verdict, some allegation of specific prejudice is required for a mistrial so long as the jurors were not asked to resume deliberations. State v. Roberge, 155 Vt. 121, 123-24 (1990).

19. State v. Villeneuve, 155 Vt. 360, 364 (1990) (quoting People v. Buford, 506 N.E.2d 901, 905-06 (N.Y. 1987)).

20. State v. Prime, 137 Vt. 340, 342-43 (1979) ("the right to an unbiased jury is a personal right which may be waived only by the defendant and only with a knowing and intelligent waiver"). Compare State v. Bailey, 144 Vt. 86, 102 (1984) (counsel can unilaterally waive jury sequestration).

21. State v. Villeneuve, 155 Vt. 360, 363 (1990) (quoting Arizona v. Washington, 434 U.S. 497, 503 (1978) (internal quotations omitted)).

22. State v. Villeneuve, 155 Vt. 360, 363 (1990); V.R.Cr.P. 24(d).

23. See § 14.04 (double jeopardy).

24. See §§ 35.01-35.02, supra.

25. State v. Hurley, No. 89-406, slip op. 2 (Vt. Feb. 4, 1991) (mem.).

26. State v. Perry, 131 Vt. 337, 340 (1973). Perry joins the criticism of the so-called "dynamite" charge given in Allen v. United States, 164 U.S. 492 (1896), and approves the much milder ABA version, 3 ABA Standards for Criminal Justice § 15-4.4.

27. State v. Perry, 131 Vt. 337, 340 (1973). See also 3 ABA Standards for Criminal Justice 139.

28. See, e.g., Potter v. United States, 691 F.2d 1275, 1278 (8th Cir. 1982).

29. State v. Hurley, No. 89-406, slip op. 2 (Vt. Feb. 4, 1991) (mem.).

30. See § 5.11.