The secrecy of what occurs behind the closed jury room door leaves trial attorneys and clients hanging on the words of any question or comment to the Court in an effort to discern the jurors’ thought processes.  Those words are often inscrutable, giving attorneys little  guidance on how to respond.  In Cruz v. Donath, the plaintiff’s attorney guessed wrong.

In Cruz, after deliberating for one hour at the end of the day, the jury advised the court that it would not be able to reach a verdict even if they were to stay an additional half hour.  The court excused the jury for the night.  Over the course of the night and next morning, a juror left messages for the court staff that he had to bring something to the court’s attention.  As it turns out, the juror claimed that another juror had “almost kind of tried to sway” his vote by showing him a wallet with money in it.  The juror denied that this incident would in any way influence him.  The other juror denied any case related comments and remarked that he only spoke about the extension of deliberations into the next day.  All jurors including the two involved were questioned, and all agreed that they could be fair and impartial.

Given this turn of events, the trial attorneys had to quickly decide how they wanted to proceed.  The defense attorney requested a mistrial. The plaintiff’s attorney took no part in this request.  Instead, the attorney requested that the two impacted jurors be excused.  The judge denied this request as this would bring the number deliberating to five, which was impermissible by court rules.  While the parties were discussing what action to take, the jury reached its verdict.

At that moment of truth, the defense attorney posited that in the absence of a mistrial, the verdict should be taken. The plaintiff’s attorney agreed to take the verdict, but noted his continued concern about the two jurors.

The jury returned a verdict 5-1 of no cause.  The juror who initiated the conversation was the lone hold-out for the plaintiff.

Despite taking no position on the defendant’s request for a mistrial, the plaintiff then appealed the verdict on the grounds that a mistrial should have been granted if the two jurors were not excused.  The appellate division was not swayed.  It found the trial court could not have gone below the mandatory six juror requirement, and there was no plain error with respect to the decision on defendant’s request for a mistrial.

Interestingly, the appellate court was non-plused with the whole episode.  It noted that it “is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.”  Thus, it would not set aside a verdict simply because a juror felt he had been “placed in a potentially compromising situation.”  If courts did so, “few trials would be constitutionally acceptable.”

For more information, contact Denise Fontana Ricci at .