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Mistrials due to lawyers making faces, internet misconduct & more

Monday, December 27, 2010
posted by Douglas Keene

Even though we have been hearing about (and writing about) jurors and the internet for a several years now—it was still something of a shock to see the ABA piece identifying 90 verdicts challenged due to jurors’ alleged internet misconduct. We wrote an article on Jurors and the Internet in The Jury Expert back in November of 2009. (And if you haven’t seen the updated version from August, 2010—here it is.) Readers cannot get enough of these articles—and it appears jurors can’t get enough of the internet! Ninety verdict challenges is a lot of activity.

But jurors and the internet are not the only behavior causing mistrials. There’s a very odd story out of the UK about an attorney in the courtroom gallery making faces and rolling his eyes at the jury. The jury was so unsettled by this, they sent a note to the judge:

“We find him very distracting and he is making strange faces all the time. We feel very uncomfortable with him.”

The case ended up in mistrial as it turned out the face-making attorney had unsuccessfully prosecuted the female defendant earlier and she said she was disconcerted by him as well.

Strange things can happen in the courtroom as well as in the jury room. We’ve written before about the importance of teaching the jury how to [and how not to] deliberate. New research would say it’s also important to teach juries how to pick their presiding juror. We know the presiding juror is important, in terms of preventing a hung jury. But, the way a presiding juror is selected may also have impact on the deliberation process.

Eckel, Fatas & Wilson (2010) looked at how leaders are chosen and how that selection process relates to group functioning. They had group members participate in a task where everyone saw each other’s scores. Then they assigned group leaders defining a ‘high status’ leader as someone with a high score and a ‘low status leader’ as someone with a low score. What they found was that when leaders were seen as high-status—group members invested more and participated in the task at hand. When group leaders are seen as low-status—group members de-invest and do not participate.

The implications for what you need to communicate to jurors about how to select a presiding juror are clear:

Talk to jurors about the importance of the presiding juror role.

This defines the presiding juror role as ‘high status’.

Talk to jurors about what makes an effective presiding juror.

This helps them see/determine who would be the best choice.

And perhaps teach them how to deliberate so they can have the best chance at working together effectively.

Keep in mind that this is a strange new role for them, and some practical guidance presented in the right tone could be appreciated.



CATHERINE C. ECKEL, ENRIQUE FATAS, & RICK WILSON (2010). Cooperation and Status in Organizations. Journal of Public Economic Theory, 12 (4)

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