Trial lawyers warn young lawyers to be careful because jurors are always watching. You never know when what you do or say will be seen by a juror and color his or her impressions of you. This can sometimes make you paranoid. I had a Starbucks coffee with me on the first day of a jury trial but, after noticing several jurors with Dunkin Donuts coffee drinks, I switched to Dunkin. I doubt this was crucial to the jury’s deliberations, but sometimes the results are far more significant. Such was the case in Davis v. Husain, where a juror’s observation that defendant did not place his hand on the Bible when being sworn in led to the jury’s verdict being reversed and defendant being granted a new trial.
In Davis, plaintiff sued defendant under New Jersey’s Law Against Discrimination. The jury ruled in plaintiff’s favor, and awarded her damages. After the trial, the judge met ex parte with the jury. During that meeting, “a female juror mentioned that [plaintiff] had not placed his hand on the Bible when taking the oath.” The judge told counsel about this revelation, but refused to make any further inquiries of the jurors or grant a new trial.
Defendant appealed the jury’s verdict, and the case eventually made its way to the New Jersey Supreme Court, which “flatly prohibit[ed] ex parte post-verdict communications between trial judge and jurors,” like the ones that had occurred in Davis. (That decision can be found here.) The Supreme Court remanded the matter to a different trial judge to determine whether the juror’s “actions or comments affected others on the panel,” and whether “a good case showing [could be] made that the jury’s decision was tainted by misconduct.”
On remand, the trial court held that no new trial was warranted. Defendant appealed directly to the Supreme Court, which again remanded, instructing the trial court to interview the four female jurors on the panel to determine who made the statement about defendant not placing his hand on the Bible, and whether a new trial was justified.
On remand the second time, the trial court sent notices to the four female jurors via regular mail. Two of the notices were sent back, marked “return to sender.” The other two were not returned, but only one juror appeared in response. She was questioned by the judge on the record and with counsel for plaintiff and defendant present. She testified that, during deliberations, “one of the African American jurors, although she did not remember which one, mentioned” that defendant had not put his hand on the Bible when being sworn in. She recalled this woman being “very passionate” about the issue, but testified that “the rest of the jury [didn’t] really put too much stock into it.” She further recalled that none of the other jurors were as concerned as the one juror about defendant not having put his hand on the Bible.
After hearing the juror’s testimony, the judge denied defendant’s motion for a new trial. The judge indicated that, “in his view[,] jurors commented in similar fashion all the time.” He contrasted the juror’s comments about defendant with “obviously racist comments, anti-Semitic comments, anti-Catholic comments, anti-female comments,” for which one might get a new trial. The judge held that, unlike those situations, the juror in Davis simply “inferred a lack of credibility from [defendant] because [he] wouldn’t put his hand on the Bible.” Finally, the judge held that, “aside from that, the only evidence [he had was] that the other jurors weren’t that impressed.” Thus, he concluded that the one juror’s comments did not affect the other jurors or the deliberations,” and to hold otherwise would “be sheer speculation.”
Defendant appealed this decision and the Appellate Division reversed.
Generally, a motion for a new trial is only granted if a jury’s decision “would result in a miscarriage of justice shocking to the conscience of the court.” This is an obviously high standard, but it can be met when “a jury is provided with information, not presented in the courtroom, that could be prejudicial to the outcome” of the case. A mere “impropriety or defect in a juror’s motives or methods or thought processes” is not enough, but if the information the jury receives outside of the courtroom is “prejudicial to the fairness of the proceedings,” then a new trial will be ordered. And, when a trial is “infested by racial or religious bigotry,” then then the “deliberative process has been prejudicially tainted” and a new trial is required.
Notably, the test is not whether the information received by the jury outside of the courtroom actually influenced the verdict, but rather whether it had the “capacity of doing so.” “In other words, when improper notions enter the jury room, the possibility of taint suffices for a new trial” (emphasis added).
In Davis, the Appellate Division held that the juror’s comments about defendant not placing his hand on the Bible when he was sworn in raised sufficient concerns about the “possibility of taint:”
The juror’s comment regarding the Bible raises the specter of religious bigotry. Whether that concern colored the view of the other jurors is still unknown, with the exception of the juror who appeared. This is a peculiar situation. The Law Division judge said the juror who made the observation was only concerned with Husain’s credibility, i.e. that a person who refused to place his hand on the Bible was incapable of taking the oath seriously and was therefore incredible. He contrasted this with out-and-out religious bigotry. But if he was correct, that too is simply impermissible. The exercise of a person’s religion should not make him or her per se incredible
Given the passage of time, the Appellate Division held that the only appropriate remedy was a new trial. It was not “realistic” to “merely direct that the interview process continue” so that the trial court could determine precisely what the one juror said, when she said it, who heard it, and whether it influenced other jurors.