Conduct by a juror is improper if it may affect a substantial right of the defendant.
In People v Davis, (2d Dept. 5/24/2011) (Hall, J.), the defendant appealed his conviction of two counts of Murder 2°, six counts of Robbery 1°, three counts of Burglary 1°, and one count of Criminal Possession of a Weapon 2° for his participation in an apartment raid. The trial jury included a juror who practiced as a real estate attorney. After the jury convicted the defendant, several jurors wrote letters to the prosecutor, the court, and the defense attorney explaining that while they were deliberating the attorney-juror instructed the others about the law. Based on the conduct of the attorney-juror, defendant raised a motion to set aside the verdict pursuant to CPL § 330.30(2). The trial court denied the motion without a hearing. It reasoned that inquiry into the activities raised by the letters would be impermissible due to the rule forbidding inquiry into the tenor or content of jury deliberations.
In affirming the conviction, the Second Department held that the trial court did not abuse its discretion when it denied the motion without conducting a hearing. The Second Department explained that while inquiry into the tenor of jury deliberations is generally impermissible, inquiry into improper jury influence may be allowed on a case by case basis. After referencing several Court of Appeals cases for the premise that improper influence is evident where the jury comes to possess factual evidence not introduced at trial, the Second Department found that the attorney-juror did not convey facts beyond those presented at trial. This finding was supported by the record of jury notes requesting reinstruction on the law and readbacks of the defendant’s testimony. Additionally the court noted that the statements allegedly made by the attorney-juror were accurate interpretations of the law, but that even if the statements were incorrect that they would not constitute improper conduct as set forth in CPL § 330.30.
I have always been suspicious of having a lawyer on my juries for precisely the reason raised by this case. I have usually exercised my preemptories to excuse potential lawyer-jurors. I see several problems with lawyer-jurors: (1) they may, as in this case, advise the rest of the jurors on the law; (2) the other jurors may turn to the lawyer-juror for legal interpretation; and (3) the lawyer-juror's views may carry more weight because of his or her status. Some may view these problems as actually benefits. I see some merit to this conclusion, depending of course on the particular juror at hand. Nevertheless, I am ultimately persuaded that having a lawyer-juror on the jury is too much of a wildcard. (MM/LC)