The Importance of Juror Conduct: How Not Following Instructions Can Impact A Post-Trial Verdict

When jurors communicate with third parties about the case in which they are hearing, it can adversely impact the trial by prejudicing the defendant. In People v. Neulander (4th Dept. 6/29/2018), one juror’s misconduct impacted the defendant’s rights and resulted in a new trial.

The defendant in this case was convicted by a jury of Murder 2º of his wife and Tampering with Physical Evidence.

The defendant contended that his conviction should be set aside on grounds of juror misconduct. Under CPL 330.30(2), the verdict may be set aside for juror misconduct if the misconduct may have affected a substantial right of the defendant, and it was not known to the defendant prior to the verdict. The defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion.

The defendant established during his CPL 330.30(2) hearing that a juror engaged in text messaging with third parties about the trial, including receiving a text from her father saying: “Make sure he’s guilty!” and another from a friend making reference to the defendant as the “scary person.” A second friend had a text message exchange with the juror about the evidence in the case.  After the verdict, a discharged alternate juror reported to defense counsel that the juror in question had engaged in prohibited communications during trial.

When the prosecution was preparing its opposition to the CPL 330.30(2) motion, the juror who allegedly engaged in these communications failed to disclose any of the improper communications to the prosecutor. She even went as far as to state under oath that she followed all of the Judge’s instructions. However, she also deleted many messages and her browsing history without explanation, which was revealed after a forensic examination of the juror’s phone. However, the trial court found that despite all of this, there was no substantial risk of prejudice to the defendant.

The Appellate Division found that “[h]ere, due to juror number 12’s flagrant failure to follow the court’s instructions and her concealment of that substantial misconduct, defendant, through no fault of his own, was denied the opportunity to seek her discharge during trial on the ground that she was grossly unqualified and/or had engaged in substantial misconduct.” Even assuming her intentions were pure, that is not relevant to the analysis.

The Court concluded that defendants have a right to be tried by jurors who follow the court’s instructions, do not lie in sworn affidavits about their misconduct during the trial, and do not make substantial efforts to conceal and erase their misconduct when the court conducts an inquiry with respect thereto. These rights are substantial and fundamental to the fair and impartial administration of a criminal trial. Therefore, the court found that the defendant showed by a preponderance of the evidence a significant risk that he was prejudiced by this conduct, and the court granted a new trial.

Two Justices dissented in this case. They believed that despite the fact that a juror engaged in misconduct, the trial court did not abuse its discretion in choosing to not set aside the verdict. Because the trial court found that the juror took her role as seriously and decided the case based on the evidence alone, the Justices believed the verdict should have been affirmed. (JC)

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