241.2Juror Misconduct

Juror Misconduct

The standard admonitions given to jurors are found in G.S. 15A-1236(a), and they instruct the jurors: (i) not to talk to among themselves about the case prior to deliberations, (ii) not to talk to anyone else about the case; (iii) not to form an opinion as to guilt or innocence prior to deliberations; (iv) to avoid reading, watching or hearing any accounts of the trial; and (v) not to talk to any of the parties, witnesses, or attorneys. The judge may also admonish the juror as to any other matters he or she considers appropriate to the case. 

When juror misconduct is alleged or suspected, the trial judge must investigate the alleged misconduct, make findings, and determine based on the facts and circumstances of each case whether misconduct occurred resulting in prejudice. See State v. Johnson, 295 N.C. 227 (1978); State v. Jackson, 77 N.C. App. 491 (1985) (“where juror misconduct is alleged, it is incumbent upon the trial court to make such an investigation as is appropriate, including examination of the juror involved when warranted, to determine whether or not misconduct has occurred, and if so, whether such conduct has resulted in prejudice”). If the judge determines that misconduct did occur, the appropriate remedy depends on the nature of the misconduct and the particular facts of each case, but may include cautionary instructions, contempt or censure, removing the juror and replacing him or her with an alternate, declaring a mistrial, or ordering a new trial. Note that G.S. 15A-1215(a), as amended effective October 1, 2021, now allows the trial judge to replace a juror with an alternate even after deliberations have begun. Additional permissible sanctions are discussed later in this entry.

Some of the most common examples of juror misconduct, and the typical remedy, are summarized below:

1. Absence

The judge may substitute an alternate juror. G.S. 15A-1215(a); State v. Carr, 54 N.C. App. 309 (1981) (juror failed to return after lunch – no error or abuse of discretion for court to seat the alternate and continue, rather than declare a mistrial).

2. Sleeping/Inattentive

If appropriate, the judge may substitute an alternate juror. See G.S. 15A-1215(a); State v. Barbour, 43 N.C. App. 38 (1979) (no error for trial judge to excuse juror at close of arguments for “lack of attention” and seat the alternate). If the judge does not replace the juror, the record must contain findings of fact of actual sleeping or inattention (e.g., doing a puzzle, reading a book), supported by evidence, to show abuse of discretion on appeal. See State v. Lovin, 339 N.C. 695 (1995) (no error where defendant’s motion to replace juror was denied because court found the juror was inattentive to some parts but still capable of performing duty). Findings must be made at the time; post-trial affidavits are insufficient. State v. Engle, 5 N.C. App. 101 (1969).

3. Reading/Watching Media Related to Trial

When there is substantial reason to fear that the jury has become aware of improper or prejudicial matters, an inquiry by the court is required and a mistrial or seating of alternate jurors may be warranted if the defendant’s right to a fair trial would otherwise be violated. See State v. Barts, 316 N.C. 666 (1986) (court properly declined to order mistrial, no evidence to show jury was actually exposed to prejudicial newspaper article); State v. Jones, 50 N.C. App. 263 (1981) (“The problem is primarily one for the trial judge, who must weigh all the circumstances in determining in his sound judicial discretion whether the defendant's right to a fair trial has been violated when information or evidence reaches the jury which would not be admissible at trial.”); see also State v. Woods, 293 N.C. 58 (1977) (several jurors read an article summarizing first day of the trial, which judge reviewed and found to be objective and non-inflammatory, so a cautionary instruction to disregard the article was a sufficient remedy).

4. Consulting Dictionary/Internet for Legal Terms

The trial judge will usually instruct the jurors not to do this, because it risks exposing them to prejudicial “extraneous” information. Extraneous information is “information dealing with the defendant or the case being tried, which information reaches a juror without being introduced in evidence. It does not include information which a juror has gained in his experience which does not deal with the defendant or the case being tried.” State v. Rosier, 322 N.C. 826 (1988).
Notwithstanding the judge’s instructions to avoid doing independent research, several appellate decisions have held that jurors looking up the definition of a legal term, without more, does not constitute prejudicial exposure to “extraneous information.” See Lindsey v. Boddie-Noell Enterprises, Inc., 355 N.C. 487 (2002) (finding that jurors looking up terms ‘willful’ and ‘wanton’ in dictionary did not fall under the definition of  “extraneous information,” and there was also no actual prejudice); State v. Patino, 207 N.C. App. 322 (2010) (because legal terms are not extraneous information under evidence Rule 606 and do not implicate the defendant’s constitutional right to confront the witnesses against him, the allegations about jurors consulting the internet for legal terms are not proper matters for trial court inquiry); State v. McLain, 10 N.C. App. 146 (1970) (jury looked up “uttering” definition, but judge’s instructions to disregard it were sufficient curative measure); see also State v. Bauberger, 176 N.C. App. 465 (2006) (affidavits regarding jury’s use of dictionary could not be used to impeach verdict), aff’d by equally divided court, 361 N.C. 105 (2006); but see In re Will of Hall, 252 N.C. 70 (1960) (it was error for jury to use encyclopedia in jury room to look up the definition of “undue influence,” but declining to reverse because this information came from jurors, who may not impeach their own verdict, plus the definition used actually favored appellant).

5. Failure to Disclose During Voir Dire

If a juror’s lack of candor is discovered before the jury is impaneled, the court may allow the parties to ask additional questions and exercise challenges. See G.S. 15A-1214(g). If it comes out later, the party asking for a mistrial/new trial must show that an effort was made to draw out the information, the juror withheld it, and it shows bias against the moving party. See State v. Maske, 358 N.C. 40 (2004) (juror’s inadvertent failure to mention she was victim of a robbery over 40 years prior did not warrant new trial, no evidence of prejudice – remanded for resentencing on other issues); State v. Buckom, 126 N.C. App. 368 (1997) (juror’s minimal association with a state’s witness, which was not disclosed in voir dire, insufficient to establish prejudice).

6. Expression of Opinion on Issue by Juror

Judge must investigate to determine if prejudice resulted. State v. Drake, 31 N.C. App. 187 (1976) (witness reported overhearing jurors at the coffee bar discussing case mid-trial and forecasting outcome – it was error for court not to investigate further before denying motion for mistrial).

7. Refusal to Deliberate According to the Law

Jurors must comply with the judge’s instructions regarding following and applying the law as given, not considering any outside evidence, etc., or the court may declare a mistrial. See State v. Sanders, 347 N.C. 587 (1998) (manifest necessity supported judge’s declaration of mistrial during capital sentencing hearing when there was “ample evidence that the jurors were disregarding the trial court's instructions concerning their duties and the law”).

8. Conducting Experiments

Jurors should not conduct their own experiments which introduce extraneous information into the deliberations, but actual prejudice must be shown to warrant mistrial or reversal. State v. Pridgen, 20 N.C. App. 116 (1973) (during a recess, juror got inside a wooden crate where officers were hidden during a sting to see how good their view was – no prejudice shown). 

9. Unauthorized Visit to Crime Scene

Prejudice must be clear, such as when jurors were exposed to evidence not offered at trial. State v. Perry, 121 N.C. 533 (1897) (new trial ordered because juror went to scene and spoke to passerby about distance to a house relevant to case); but see State v. Hawkins, 59 N.C. App. 191 (1982) (juror went to crime scene and provided information to fellow jurors about lighting at the scene - but no prejudice because the lighting was already described at trial by another witness); see also State v. Smith, 13 N.C. App. 583 (1972) (suggesting that prejudice from one juror viewing scene could be solved by allowing all jurors to view scene).

10. Intoxication

An intoxicated juror who is not physically or mentally capable of serving as a juror may be replaced with alternate, or the judge may declare a mistrial. See G.S. 15A-1215; State v. Tyson, 138 N.C. 627 (1905). The intoxication must occur during trial, not during a weekend or overnight recess, to require mistrial or substitution of an alternate. See State v. Crocker, 239 N.C. 446 (1954).

11. Reading Books or Watching Movies about Crimes

This issue is rarely raised in modern practice, and only actual prejudice would warrant a new trial, but historically some courts expressed a concern about jurors being exposed to inflammatory entertainment while the trial is underway. See State v. Hawkins, 214 N.C. 326 (1938) (no new trial required where jurors in murder trial were allowed to watch a movie depicting a murder mystery); but see U.S. v. Stoehr, 196 F.2d 276 (3rd Cir. 1952) (finding no prejudice, but noting that “[i]t is our belief, nonetheless, that films about crime and the underworld are probably not the best entertainment for juries engaged in a criminal case of any kind” and “it is dangerous practice for jurors to be allowed to attend motion pictures unless the nature of the picture is learned in advance”); Norwood v. State, 48 S.W.2d 276 (Tex. App. 1932) (new trial ordered when jury in a rape case was taken to a movie where the “moral was that illicit sexual relations destroy the home” even though “all of the jurors testified that the show had no influence upon them and that they rendered their verdict according to the law and evidence in the case”).

Improper Contact with Jurors

1. Contact Between Juror and a Party

Such contact should always be avoided, but it does not necessarily require removal of a juror or declaring a mistrial if the contact had no impact on the case. Casual contact still requires an inquiry and investigation by the judge, but no action need be taken if no prejudice is found. O’Berry v. Perry, 266 N.C. 77 (1965). If contact was accidental and no prejudice is shown, a new trial is not required. State v. Scott, 242 N.C. 595 (1955). If the contact was surreptitious, the judge may substitute an alternate juror or order a mistrial. See G.S. 15A-1215(a); State v. Cutshall, 278 N.C. 334 (1971). Similarly, if a juror contacts counsel at home, the judge may substitute an alternate. State v. Price, 301 N.C. 437 (1980). 

2. Contact Between Juror and a Witness

Contact between jurors and witnesses likewise should be avoided, but it does not necessarily require the removal of a juror or declaring a mistrial if the contact did not result in prejudice to either party. See State v. Shedd, 274 N.C. 95 (1968) (state’s witness during recess discussed case within jury’s hearing, but record failed to disclose what statements were made and defense failed to move for mistrial – in absence of record, facts did not require mistrial); State v. Childers, 80 N.C. App. 236 (1986) (defendant failed to show prejudice in casual conversations unrelated to case between one of the state’s witnesses and two jurors); State v. Rutherford, 70 N.C. App. 674 (1984) (juror and state’s witness discussed during lunch recess whether they had mutual acquaintances; judge did not abuse discretion in refusing to declare mistrial after full inquiry was made); State v. Bowden, 37 N.C. App. 191 (1978) (two jurors were seen talking to defense witness during recess, but no prejudice to defendant when court thoroughly examined jurors and determined that their verdict would not be affected). 

3. Contact Between Juror and a Court Officer

Incidental contact or remarks unrelated to the case may not be considered prejudicial error, but more substantive interactions and/or comments about the case or the law likely will be. See State v. Bailey, 307 N.C. 110 (1982) (error when sheriff, who testified as state’s witness, drove three jurors to restaurant for evening meal); State v. Johnson, 295 N.C. 227 (1978) (bailiff’s comment to jury that he was proud that prosecutor “stood up” for law enforcement officers of Swain County was prejudicial, requiring new trial); State v. Sneeden, 274 N.C. 498 (1978) (error when bailiff answered jury’s legal question, but no prejudice shown); but see State v. Brown, 315 N.C. 40 (1985) (fact that courtroom bailiff briefly sat down next to prosecutor was not a “communication” to the jury that the court was on the prosecution’s side); State v. Kornegay, 70 N.C. App. 579 (1984) (conversation between juror and defendant’s probation officer was not prejudicial).

4. Contact Between Juror and the Jury Custodian 

The bailiff who serves as the jury custodian obviously needs to communicate regularly with jurors about scheduling, parking, directions, and other administrative matters, but he or she may not discuss the facts of the case with the jury. Furthermore, to avoid any possible risk of prejudice or even the appearance of any impropriety, the jury custodian must not be: (i) a witness for the state; or (ii) an immediate family member of a party, counsel, or witness. If the custodian is either a state’s witness or a family member of a party, it is conclusively presumed to be reversible error. See State v. Mettrick, 305 N.C. 383 (1982) (“No matter how circumspect officers who are to be witnesses for the State may be when they act as custodians or officers in charge of the jury in a criminal case, cynical minds often will leap to the conclusion that the jury has been prejudiced or tampered with in some way. If allowed to go unabated, such suspicion would seriously erode confidence in our jury system. For this reason we have adopted the rule that prejudice is conclusively presumed in such cases.”); State v. Wilson, 314 N.C. 653 (1985) (immediate family member of either a prosecutor trying a case, a defendant, defendants’ counsel, or a crucial witness for either the prosecution or defense is prohibited from serving as custodian or officer in charge of jury).

By contrast, if a state’s witness serves as one of the bailiffs in the courtroom, but not as the actual “custodian” of the jury, then actual prejudice must be shown to require a new trial. See State v. Jeune, 332 N.C. 424 (1992) (deputy sheriff, a state’s witness, was bailiff but not custodian of jury -- prejudice not conclusively presumed); State v. Macon, 276 N.C. 466 (1970) (allowing two deputy sheriffs, who acted as court officers or bailiffs during trial, to testify against defendant did not amount to denial of due process or violate constitutional right to trial by impartial jury where exposure of jury to officers was brief and incidental and officers had no custodial authority over jury). 

5. Contact Between Juror and Judge

The judge should not confer at the bench with a juror concerning questions the juror desires to ask, unless counsel is present or the conversation is recorded. State v. Tate, 294 N.C. 189 (1978). In a capital trial, it is error if the judge confers privately with jurors without the defendant being present. State v. Smith, 326 N.C. 792 (1990) (error in capital case when judge spoke privately with prospective jurors); State v. Artis, 325 N.C. 278 (1989) (error in capital case when judge spoke with juror in chambers); State v. Johnson, 331 N.C. 680 (1992); State v. Moss, 332 N.C. 65 (1992).

6. Contact Between Juror and Third Party 

The decision whether to excuse a juror or declare a mistrial based on contact between a juror and a third party is left to the sound discretion of the trial judge, based on an appropriate inquiry into the facts and circumstances, and will not be disturbed on appeal absent a showing of abuse of discretion. See State v. Hester, 216 N.C. App. 286 (2011) (no error in not declaring mistrial when juror discussed case with a trial spectator over the weekend, and juror was replaced with alternate); State v. Cooley, 47 N.C. App. 376 (1980) (mistrial granted on state’s motion was error when there was no evidence of connection between alleged jury tampering and defendant and his attorney); State v. Johnson, 295 N.C. 227 (1978) (“verdict will not be disturbed because of a conversation between a juror and a stranger when it does not appear that such conversation was prompted by a party, or that any injustice was done to the person complaining, and he is not shown to have been prejudiced thereby”).

Matters Affecting Deliberations

1. Other People in the Jury Room

If an alternate juror participates in any degree in the deliberations, there is per se prejudicial error that requires a new trial. State v. Bindyke, 288 N.C. 608 (1975) (new trial granted where alternate was in jury room and participated in deliberations for first 3 to 4 minutes); State v. Rowe, 30 N.C. App. 115 (1976) (new trial cannot be waived). Note that G.S. 15A-1215(a), as amended effective October 1, 2021, now allows the trial judge to replace a juror with an alternate even after deliberations have begun.
But where the alternate (or another person) is in the jury room only inadvertently, for a brief period, and does not participate in deliberations, a mistrial is not required. See State v. Battle, 271 N.C. 594 (1967) (extra juror went into jury room just long enough to get a drink of water, and did not discuss case or deliberate); State v. Washington, 141 N.C. App. 354 (2000) (not an abuse of discretion to decline to order mistrial after bailiff briefly entered jury room during deliberations to retrieve some magazines); State v. Riera, 6 N.C. App. 381 (1969) (unauthorized woman entered jury room by accident – jury did not speak with her, no error in denying mistrial), rev’d on other grounds, 276 N.C. 361 (1970).

2.  Other Materials/Information in Jury Room

See the entries above regarding jurors consulting dictionary/internet, or being exposed to media about the case – whether the material or information brought into the jury room is deemed extraneous and prejudicial depends on its nature. See State v. Barnes, 345 N.C. 184 (1997) (no evidence that jury’s consultation of Bible before deliberations was directed to facts or law of the case); State v. Quesinberry, 325 N.C. 125 (1989) (jurors' belief about possibility that defendant would be paroled if given a life sentence was an internal influence on the jury during sentencing deliberations and therefore evidence concerning their consideration of the possibility of parole was not admissible to impeach verdict recommending death sentence). 

3.  Leaving the Jury Room

Deliberations must be conducted by all 12 jurors at all times, but minor interruptions such as jurors taking bathroom breaks have been found not to be error. See State v. Hawkins, 302 N.C. 364 (1981) (several jurors stepped out for a minute or two to use restroom during deliberations – no evidence as to what was discussed during those intervals, no error in judge denying mistrial); State v. Sanders, 280 N.C. 67 (1971) (presumption is in favor of finding regularity in the trial); see also G.S. 8C-1, Rule 606, Official Commentary; G.S. 15A-1240.

Sanctions for Misconduct By or Affecting Jurors

If the court becomes aware that any misconduct or improper contact has taken place, the trial judge must investigate and take any appropriate action to remedy the situation. See State v. Drake, 31 N.C. App. 187 (1976). The most common remedies are:

1. Caution or Instruction

The judge may give an appropriate instruction or admonishment to the jury, such as ordering them to disregard the improper outside influence or information. See G.S. 15A-1236 (Admonitions to Jurors); State v. Hines, 131 N.C. App. 457 (1998) (appropriate instructions may cure even constitutional errors); N.C.P.I.—Crim. 100.31 (“If you acquire any information from an outside source, you must not report it to other jurors and you must disregard it in your deliberations.”)

2. Alternate Juror
   

The judge may discharge a juror and replace him or her with an alternate, if deemed necessary in the sound discretion of the court. See G.S. 15A-1215(a), G.S.15A-2000(a)(2); State v. Nelson, 298 N.C. 573 (1979). Note that G.S. 15A-1215(a), as amended effective October 1, 2021, now allows the trial judge to replace a juror with an alternate even after deliberations have begun. 

3. Declare a Mistrial

The judge may declare a mistrial in response to misconduct discovered before the verdict if, in the sound discretion of the trial judge, it makes a fair and impartial trial impossible under the law. See G.S. 15A-1061; State v. McCarver, 341 N.C. 364 (1995).

4. Order a New Trial

The judge may also order a new trial based on misconduct discovered after the verdict - the ruling is in the judge’s discretion, and will not be disturbed on appeal unless it is clearly erroneous or an abuse of discretion. See State v. Johnson, 295 N.C. 227 (1978); State v. Sneeden, 274 N.C. 498 (1968).

5. Contempt of Court
   

Any juror, party, bailiff, attorney, or third party guilty of misconduct may be cited for contempt. See G.S. 15A-1035; State v. Pierce, 134 N.C. App. 148 (1999) (juror properly found in criminal contempt for willfully violating judge’s instruction not to do any research on one’s own).

6. Attorney Discipline

An attorney may be disciplined directly by the trial judge, or reported to the North Carolina State Bar for further disciplinary proceedings.

7. Criminal Law Violations 

Occasionally, efforts to interfere with jurors’ work may also violate the criminal law. See G.S. 14-220 (bribery of a juror); 14-225.2 (harassment of or communication with a juror); 14-227.2 (secret listening to jury deliberations). The common law crimes of embracery and obstruction of justice are also effective in North Carolina. See State v. Brown, 95 N.C. 685 (1886) ("embracery" is the “willful and corrupt attempt to influence the deliberations and verdict of a pet[it] jury […] by some direct or indirect approach to and communication with the jury, or, as in the case supposed, the delivery of money or something of value to some one, to be used in operating upon the minds of the jurors”); N.C.P.I.--Crim. 230.62 (obstruction of justice).