Abstract
A prosecutor informs a juror of information that can change their mind about the defendant. It only confirms their opinion but should they inform the judge of this and risk a mistrial? This paper examines similar cases of exposure and their conclusions. The responsibility of both the jury and prosecutor is examined and possible consequences of informing the judge of this situation. Ultimately I come to the conclusion that the most ethical thing to do in this case is not to inform anyone.
The presented scenario puts me in the shoes of a member of the jury who receives outside information from a prosecutor during an elevator ride. The case revolves around a defendant accused of multiple child molestations in his neighborhood. My character was already pretty sure that the defendant was guilty, but during the elevator ride, he was informed that he had a prior arrest for child molestation. This information only confirms the opinion of the juror but the act of the prosecutor telling me this information can result in a mistrial. The ethical problem of this is should I inform the judge and risk a mistrial for a case where I am sure the defendant is guilty of a heinous crime, or should I keep it to myself knowing that defendant’s sixth amendment right was not satisfied?
Jury and Outside Information
Since the invention of the internet people have become very reliant on technology. The way information is passed from person to person has also changed. The Internet made news, records and any other information available at people’s fingertips. Social media made this spread of information even faster. This progress makes ensuring that the jury is unbiased and does not receive outside information close to impossible. The sixth amendment guarantees the right to an impartial jury among other things. Therefore, this issue of outside information affecting the jurors is a serious threat to the constitutional rights of the people (Martin, R. 2014).
To understand this situation, it is important to spotlight how a trial can be affected by jurors receiving outside information. Hearsay affected the Humphrey v. Williams case; the defendant was convicted after hearsay spread among the jury. The case also revolved around molestation and hearsay concerned similar acts of molestation that occurred years before. The court provided records available to the defense counsel proved that no such acts had occurred. Subsequently, the Supreme Court affirmed a finding of ineffective assistance of counsel (Longan, 2016).
A sexual assault case in the Detroit area ended in a mistrial. A juror found information about the defendant’s previous child molestation conviction. He then told the rest of the jury about it, forcing the judge to hold him in contempt of the court and ending the case in a mistrial. The juror was also fined $1,200 (Hoffmeister, 2015).
In a situation similar to the described scenario, a juror was given an eight-month sentence for communicating with one of the acquitted defendants via Facebook as well as using the internet to research another defendant despite instructions from the court not to do so. The juror informed their solicitor about this contact. The solicitor then informed the defendant’s counsel, who then informed the trial judge. In State v. Smith, the Tennessee Supreme Court declared that they failed to conduct an evidentiary hearing after being informed about a juror who communicated with a witness in the trial via Facebook (Martin, 2014).
Different kinds of techniques are being used around the world to prevent bias among the jury. Northwest Ohio attempted to combat social media use by naming specific social media sites, use of which is prohibited during the trial. This technique was criticized as either unnecessary or unenforceable. Other solutions include an increase in fines, holding the juror in contempt of the court and limiting access to tools needed to communicate (Lunderman, 2014).
The prosecutor in this scenario behaved very irresponsibly, but it is not unusual behavior for a prosecutor. Even though they have a higher responsibility to stay silent during the trial, they often utilize press conferences, interviews and other public appearances that can have an influence on the jury and public perception of the case (Gershman, 2016). Professional ethics of a prosecutor are not enforced by the courts and judges rely mostly on the individual self-restraint of the prosecutor and self-regulation. Green and Levine argue that although prosecutors are not likely to see civil liability, ethics could still be enforced through professional discipline (2016).
According to the ethical decision-making model, I have weighed this information and came to a conclusion. I would not inform anyone of the information the prosecutor gave me during the elevator ride for the following reasons:
- While this information supported my opinion it does not change it, I would see the defendant as a guilty person regardless of this conversation;
- I would not want to jeopardize the case by telling either the jury or the judge because it would only result in negative consequences for the victims of the crime, the court workers and myself;
- While this technically affects the right of the defendant to an impartial jury, if I admit to this conversation it would not reinforce this right as my opinion was not changed;
- If admit to the irresponsible actions of the prosecutor I would not even see the prosecutor get any punishment which would not stop them from doing a similar action in the future.
Therefore I believe the most ethical action would be to not inform anybody and let the trial continue as if nothing happened. While exposure to outside information is a serious problem for the case, this situation keeps the exposure contained and can be controlled through personal judgment.
References
Gershman, B. L. (2016). The prosecutor’s duty of silence. Albany Law Review, Forthcoming.
Green, B. A., & Levine, S. J. (2016). Disciplinary regulation of prosecutors as a remedy for abuses of prosecutorial discretion: A Descriptive and Normative Analysis. Web.
Hoffmeister, T. (2015). Preventing juror misconduct in a digital world. Chi.-Kent L. Rev., 90, 981.
Longan, P. E. (2016). Legal ethics. Mercer L. Rev., 68, 167-333.
Lunderman, E. (2014). Juries and social media: Northwest Ohio’s response to this phenomenon. Web.
Martin, R. (2014). Criminal procedure-juror misconduct and bias-assessing the prejudicial effect of extra-judicial communications by jurors in a technologically advanced Society. Tenn. L. Rev., 82, 253.