As a trial lawyer, I spend a lot of time trying to get the jury that I need. Because, if you don't get the jury you need, then you will lose before you start. I design voir dire questions on case specific issues, I submit questions to focus groups, etc. You are developing a narrative that you want to control during trial. After all, jurors are supposed to render a verdict based only on the evidence and arguments that they hear in court. This is why we have Motions in Limine. But in the news, almost every day, I read a new story headline about a misbehaving juror: "Juror Texts Friend" "Juror Researched Medicine." "Juror Facebooked Key Witness," etc., etc. Bad Jurors who are contaminating the narrative. Indeed, the frequency of juror misconduct has given rise to the website SMjuror.com --a great resource for reading about juror misconduct events and the court remedies around the country. At SM Juror, Nilgun Zahour who is a friend and professional colleague of mine posts about juror misconduct, particularly involving a juror's use of the Internet or Social Media. Nilgun never seems to be short of new juror misconduct stories. Thus, I can't stress enough the importance of protecting your verdict against a reversal based on juror misconduct. In this Blog post, I want to review the Illinois rules of law and your remedies to protect your jury verdict against the ever increasing problem of misbehaving jurors who pollute your trial narrative.
Standard for Removal of Misbehaving Juror
Remember, a juror may be discharged after being selected and sworn upon a showing of good cause, and a new trial is not warranted unless the opposing party proves prejudice. Pekelder v. Edgewater Automotive Co., 68 Ill.2d 136, 139 (1977); Barton v. Chicago & Northwestern Transp., 325 Ill. App.3d 1005, (2001); Addis v. Exelon Generation Co., 378 Ill. App.3d 781, 792 (1st D. 2007). The trial judge's decision to discharge a juror during trial is within his sound discretion. Lowe v. Norfolk & Western Ry. Co., 124 Ill. App.3d 80, 105(1984). A juror using the Internet to research or discuss your case constitutes good cause. McGee v. City of Chicago, 365 Ill.Dec. 866 (1st D. 2012)
This underlines the importance of monitoring juror activity on the Internet and Social Media during your trial. It has become imperative to hire a consultant to continuously monitor every sworn juror's social media accounts and use "live-link" reports.
Removal of Juror After Being Sworn ("Time is of the Essence")
You want to remove a misbehaving juror before the juror has a chance to contaminate or taint your entire jury. In McGee v. City of Chicago, 365 Ill.Dec. 866 (1st D. 2012), during a trial in Chicago, a juror independently searched on the internet for published articles on the subject of the plaintiff's alleged memory lapses, which impacted witness credibility, and brought that information into the jury room. The Plaintiff's verdict was reversed resulting in a new trial. The McGee court found that the trial judge should have removed the misbehaving juror or at least immediately conducted a voir dire examination of the juror in chambers to determine whether the entire jury had been contaminated. See also, Haight v. Aldridge Electric Co., 215 Ill. App.3d 353 (2d Dist. 1991)
The trial judge should substitute an alternate juror for the removed juror. This is why we pick alternates.