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Juror Misconduct: If You Hear Something, Say Something

The Rhode Island Supreme Court’s recent decision in Roma v. Moreira, No. 2014-141-Appeal, 2015 R.I. LEXIS 106 (R.I. Nov. 13, 2015) serves as a reminder to trial counsel that if you hear something that leads you to believe there has been juror misconduct you should say something.

In that case, in the evening of the third day of the trial of a negligence action, the plaintiffs’ lead counsel left a voicemail message for the court reporting that his co-counsel had overheard a conversation between two jurors regarding the case. Id. at *2. The next morning, co-counsel informed the court that he believed he had overheard one juror say to another juror “if he can survive melanoma, he can survive this.” Id. He noted that he had not thought to report the statement at that time he heard it but that he told lead counsel about the statement later in the evening. Id.

Plaintiffs’ counsel asked that the court discharge the two jurors and seat two alternates. Id. Plaintiffs’ counsel argued that questioning the jurors would be prejudicial because the jurors would know that the statement had been reported by plaintiffs’ counsel because of the proximity of plaintiffs’ counsel’s table to the jury box. Id. at *2-3.

The trial justice disagreed and interviewed the jurors separately. Id. at *3. Both jurors denied that the conversation had taken place and told the court that the only conversation that had taken place between the two of them concerned one juror’s request for a piece of gum. Id. After concluding the interviews, the trial justice stated, “I’m satisfied based on my conversations with the two jurors that they were talking about gum,” and that “[i]f there were conversations, [they] must have been misunderstood.” Id. at *4.

The plaintiffs’ counsel made a motion to pass the case,[1] which was denied. Id. The trial justice explained that she had observed the jurors and their demeanor and that “[t]hey were completely taken aback. I didn’t sense from them any apprehension. I thought that their answers were honest and open, and I believe that they were telling the truth.” Id. at *4-5. The plaintiffs appealed on the ground that the trial justice committed reversible error in failing to declare a mistrial. Id. at *6.

On appeal, the Rhode Island Supreme Court recognized that “‘motions to pass a case and declare a mistrial are matters left to the sound discretion of the trial justice.’” Id. (quoting State v. Pacheco, 763 A.2d 971, 978 (R.I. 2001)). This is because “the ‘trial justice has a front-row seat at the trial and is in the best position to determine whether a defendant has been unfairly prejudiced.’” Id. (quoting State v. Alston, 47 A.3d 234, 250 (R.I. 2012)). Significantly, Rhode Island courts have held that “even prejudicial remarks do not necessarily require the granting of a motion to pass.” Id. (quoting Alston, 47 A.3d at 250-51).

While the Supreme Court noted it would have been preferable for the trial justice to have asked each juror directly whether he or she could remain fair and impartial, it was satisfied that the trial justice made an appropriate credibility determination and found that the jurors had not been talking about the case. Id. at *7-8. Accordingly, it was not an error for the court to refuse to discharge the two jurors or to deny the plaintiffs’ motion to pass the case. Id. at *8.

Neither the Supreme Court nor the Superior Court faulted plaintiffs’ counsel for the delay in reporting the conversation that he had overheard, however, the Court’s decision serves as an important reminder to trial counsel that if you hear something that leads you to believe there has been juror misconduct you should promptly report it.

[1] In Rhode Island state court, a “motion to pass the case” is synonymous with a “motion for a mistrial.” Roma, 2015 R.I. LEXIS 106 at *5 n.3.

About The Author

Nicole J. Benjamin

I am a shareholder and business litigator at AP&S. I help businesses and their legal departments achieve their objectives by reducing their liabilities, advising them on complex legal matters and defending unavoidable litigation in federal and state court. I am also a member of the firm’s Appellate practice group and counsel the firm’s clients on appellate matters in the Rhode Island Supreme Court and the United States Court of Appeals for the First Circuit.

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