2012 VT 4


State v.
Abdi (2010-255)
 
2012 VT 4
 
[Filed 26-Jan-2012]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to notify
the Reporter of Decisions, Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801 of any errors in order that
corrections may be made before this opinion goes to press.
 

2012 VT 4

 

No. 2010-255

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


District Court of Vermont,


 


Unit No. 2, Chittenden Circuit


 


 


Ali M. Abdi


October Term, 2011


 


 


 


 


M.
  Patricia Zimmerman, J.


 

Thomas J. Donovan, Jr., Chittenden County State’s Attorney,
and Andrew R. Strauss, 
  Deputy State’s Attorney, Burlington, for
Plaintiff-Appellee.
 
Matthew F. Valerio, Defender General, Anna Saxman, Deputy
Defender General, and
  Marshall C. Pahl, Montpelier, for
Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and
Burgess, JJ.
 
 
¶ 1.            
JOHNSON, J.  Following a jury trial, defendant—a Somali
Bantu immigrant to Vermont—was convicted of one count of aggravated sexual assault
on a child.  He moved for a new trial based, in
part, on a claim of jury misconduct resulting from a juror’s acquisition of
information on the internet concerning Somali culture, a subject that played a
significant role at trial.  The trial court held a hearing, questioned the
jurors, and issued a written decision denying the motion.  The court
concluded that although the extraneous information had the capacity to affect
the jury’s verdict, it was harmless.  For the reasons set forth below, we
conclude otherwise, and therefore reverse the judgment and remand for a new
trial.
¶ 2.            
The record evidence may be summarized as follows.  In 2006,
defendant emigrated with his family from Somalia to Burlington, Vermont, where
he joined a small close-knit Somali Bantu refugee community.  Defendant
also helped his wife’s sister and her three children relocate to Vermont. 
The two families frequently visited each other’s homes.  This case arose
out of one of those occasions, when defendant was visiting his sister-in-law
one evening in December 2006.  Defendant’s then-nine-year-old niece, K.A.,
testified that defendant was watching television in the living room when he
asked her to bring him a glass of water and then told her to sit next to him. 
Defendant then put his hand under her pants and, as she testified, put his
finger “where I pee.”     
¶ 3.            
K.A. stated that defendant had committed similar acts in the past. 
She also testified that, on other occasions, defendant had taken her into his bedroom
and sexually assaulted her, or as she stated, “[h]e put[]
his penis on my pee.”  On those occasions, she recalled that defendant
would place his hand over her mouth to prevent her from crying out and would
threaten her with harm if she revealed what had happened.
¶ 4.            
K.A.’s brother testified that, on the evening in question, he was in his
bedroom with K.A. when defendant called for her.  He stated that K.A. then
went into the living room and sat next to defendant, and shortly thereafter he
saw defendant with his “hand inside” K.A.   He recalled that K.A. was
wearing both a skirt and pants, and that he saw defendant’s hand under her
skirt, which was lifted up.  K.A.’s brother immediately went into the
kitchen to tell their mother.     
¶ 5.            
K.A.’s mother reported the incident to her sister—defendant’s wife—and
they referred the matter to the “elders” of the Somali Bantu community. 
The next morning, a number of the elders went to defendant’s house, where his
wife, sister-in-law, K.A., and others were gathered, to investigate the
report.  Mohammed Ali, a leading elder in the community, testified to the
role of Somali culture and the Muslim faith in their response to allegations of
this nature.  He explained that the word of a child without an adult
witness is generally considered insufficient evidence of sexual misconduct, and
that further inquiry is required.  Consequently, the elders met with
defendant to question him.  As Ali explained, their law and culture
required that defendant be asked three times whether he had assaulted
K.A.  The first two times that defendant was asked he responded
“no.”  The third time, however, he responded “yes.”  The elder
explained that a third “no” would have required a subsequent “swearing,” where each
of the adult principals—defendant, his wife, and sister-in-law—would have been
asked to swear on the Koran.  He explained that, according to their faith,
“something bad will happen to the person who did something, who’s lying” when
swearing on the Koran.      
¶ 6.            
Based on defendant’s final answer, the elders contacted the
police.  Defendant was arrested and charged with two counts of sexual
assault on a child under thirteen, the first count based on the alleged digital
penetration and the second on the alleged rape.  In addition to the
testimony of K.A., her brother, and several Somali Bantu elders, the State
adduced the testimony of K.A.’s mother and aunt, the investigating officer, and
a doctor who examined K.A.  The doctor found no physical evidence of a
sexual assault, although she explained that most young victims of sexual
assault do not show physical symptoms.
¶ 7.            
Following a two-day trial, the jury returned a verdict of guilty on the
first count, and hung on the second.  As discussed more fully below, the
court denied a subsequent motion for new trial based, in part, on allegations
of jury misconduct.  This appeal followed. 
¶ 8.            
 Defendant claims that the jury’s exposure to extraneous
prejudicial information acquired from the internet violated his right to a fair
trial.   The issue arose a few days after trial, when one of the
jurors, A.R., contacted the court to discuss the verdict.  Shortly
thereafter, the court held a hearing with counsel present to question the
juror.  A.R. testified that during the second day of deliberations another
juror read aloud the definition of “incompetent juror” from a piece of paper
that was not in evidence.  A.R. felt that the information was intended to
be critical of her.  On the day of the hearing, the deputy state’s
attorney submitted a letter to the court indicating that she had received
similar information that one of the jurors went on the internet after the first
day of deliberations, printed out information concerning juror incompetence,
and brought it to the jury room “to help deal with a juror who was being
difficult during deliberations.”  
¶ 9.            
Based on this information, defendant filed a motion for new trial
alleging, among other claims, jury misconduct.  The court, in response,
held another hearing over the course of three days in June, July, and August
2009 for the purpose of questioning each of the jurors concerning the
matter.  Nearly all confirmed that one juror had, in fact, recited a standard
for incompetent jurors that was likely derived from the internet, that the
information was directed at A.R., who some jurors thought was not performing
adequately, and that it was discussed only briefly, if it all.  During the
course of the hearing, the court specifically questioned the jurors as to
whether the information had influenced them in arriving at a verdict.  All
except A.R. responded that it had no effect.  Several jurors noted that
the information appeared to upset A.R., who—when recalled—testified that she
had been holding out for acquittal, that she was intimidated by the implication
of incompetence, and that it influenced her verdict.[1]  
¶ 10.         On
the second day of the continued hearing, one juror, C.L., brought up an
entirely different matter.  When asked whether any member of the jury had
referred to extraneous material during deliberations, he recalled that, during
the second day of deliberations, “[o]ne of the jurors told us they [sic] went
home and researched about the Somalian culture and their religion and bible and
all that and he shared some of . . . his research that he uncovered.” 
Under further questioning, C.L. recalled that the information was conveyed
verbally, not through any printed material, and was discussed by the jury for
“maybe ten, fifteen minutes.”  When asked how the information was “used,
if at all,” the juror responded: “What drives and motivates the Somalians and
what may have influenced them to make their decisions on the answers they gave
and that type of thing.”  He acknowledged that the juror in question used
the “information to interpret facts in evidence” and to “build their [sic]
position on what they [sic] thought would be the appropriate judgment in this
case.”  He inferred that the juror’s intent was to use the information to
influence others in arriving at a verdict.  He could not “say for sure,”
however, whether it actually influenced anyone else, but believed that “the
individual that did the research seemed to use [it] to reach their [sic]
conclusions.”   
¶ 11.         Following
the hearing, defendant filed a supplemental motion for new trial alleging jury
misconduct based on the additional disclosure.  The State opposed the
motion.  In November 2009, the trial court issued a written ruling. 
On the juror-incompetence issue, the court concluded that the information did
not relate to any material element or defense at trial and thus did not have
the capacity to influence the verdict.  As to the information on Somali
religion and culture, the court concluded that, although an “irregularity” had
occurred that had the capacity to affect the jury’s verdict, “based on a
preponderance of the evidence and the totality of the circumstances,” the State
had “prov[ed] the absence of prejudice.”  The court noted, in this regard,
that none of the jurors other than C.L. had reported the irregularity, which
suggested that “the internet research done by the one juror on Somali culture
and religion was basically ignored by all the other jurors and did not affect
their verdict.”  The court also observed that there was little evidence
“describing the content of the information conveyed, or the context, and . . .
no specific information indicating that it was inflammatory or directly related
to any material issue in the case.”  Finally, the court found that
evidence supporting guilt on Count I “was strong.”  Accordingly, the court
denied the motion. 
¶ 12.         As
noted, defendant renews his claim of jury misconduct on appeal.  The legal
standards governing a claim of this nature are reasonably settled if not—as
this case suggests—entirely clear.  “A defendant is entitled to a fair
trial free of extraneous influences.”  State v.
Gorbea, 169 Vt. 57, 60, 726 A.2d 68, 70 (1999).  This right
reflects, in turn, the Sixth Amendment guarantee that “the evidence developed
against a defendant shall come from the witness stand in a public courtroom
where there is full judicial protection of the defendant’s right of
confrontation, of cross-examination, and of counsel.”  Parker v.
Gladden, 385 U.S. 363, 364 (1966) (quotation omitted); see also Turner
v. Louisiana, 379 U.S. 466, 472 (1965) (“The requirement that a jury’s
verdict ‘must be based upon the evidence developed at the trial’ goes to the
fundamental integrity of all that is embraced in the constitutional concept of
trial by jury.”).  Consideration by a jury of facts outside the evidence
strikes at the heart of these rights.  As one court has cogently
explained: “When a jury considers facts in a criminal case which have not been
introduced as evidence, the defendant has been deprived of the opportunity to
be present when evidence is being presented, to be represented by counsel at an
evidentiary proceeding during trial, to cross-examine the ‘witnesses’ who
presented the evidence, to offer evidence in rebuttal, to request curative
instructions, or to take other tactical steps, including argument to the jury,
to place the evidence in perspective for the jury.”  State
v. Poh, 343 N.W.2d 108, 117 (Wis. 1984).
¶ 13.         To
protect these fundamental rights and at the same time preserve the integrity
and finality of the jury’s deliberations, Rule 606(b) of the Vermont Rules of
Evidence provides as follows:
 Upon
an inquiry into the validity of a verdict or indictment, a juror may not
testify as to any matter or statement occurring during the course of the jury’s
deliberations or to the effect of anything upon his or any other juror’s mind
or emotions as influencing him to assent or dissent from the verdict or
indictment or concerning his mental processes in connection therewith, nor may
his affidavit or evidence of any statement by him concerning a matter about
which he would be precluded from testifying be received; but a juror may
testify on the question whether extraneous prejudicial information was
improperly brought to the jury’s attention, whether any outside influence
was improperly brought to bear upon any juror, or whether any juror discussed
matters pertaining to the trial with persons other than his fellow jurors.
 
(Emphasis added).  In
applying Rule 606(b) to claims of exposure to “extraneous prejudicial
information” we have evolved a “two-part inquiry.”  State
v. Lee, 2008 VT 128, ¶ 26, 185 Vt. 110, 967 A.2d 1161; Gorbea, 169
Vt. at 60, 726 A.2d at 70; State v. McKeen, 165 Vt. 469, 472, 685 A.2d
1090, 1093 (1996).  “A defendant alleging . . . extraneous
influence . . . must first demonstrate that an irregularity occurred and [that]
it had the capacity to affect the jury’s result.”  McKeen, 165 Vt.
at 472, 685 A.2d at 1093.  Essentially the
defendant must show that the jury was exposed to extraneous information
relevant to an issue capable of affecting the verdict.  See, e.g., United
States v. Bagnariol, 665 F.2d 877, 888 (9th Cir. 1981) (holding that
juror’s independent research for references to nonexistent company created by
FBI as a front for its investigation did not require new trial where the
information had no logical connection to any material issue in dispute at
trial); Lee, 2008 VT 128, ¶¶ 27-28 (upholding finding that alleged
extraneous influence from presence of two police officers in courtroom did not
have capacity to affect verdict since “[c]ourt security is now ubiquitous, and
its presence does not necessarily show that defendant is incarcerated”). 
Once this is shown, the State must demonstrate “that the irregularity did not
in fact prejudice the jurors against defendant.”  McKeen, 165 Vt.
at 471, 685 A.2d at 1092; accord Lee, 2008 VT 128, ¶ 26; State v.
Squiers, 2006 VT 26, ¶ 21, 179 Vt. 388, 896 A.2d 80.  
¶ 14.         The
State’s burden in this regard “is a heavy one.”  McKeen, 165 Vt. at
474, 685 A.2d at 1094.   Indeed, as the
State acknowledges, state and federal courts uniformly require a showing that
the extraneous information was harmless beyond a reasonable doubt.  See,
e.g., United States v. Scull, 321 F.3d 1270, 1280 (10th Cir. 2003)
(observing that when jurors “are exposed to extraneous information . . . the
government can seek to prove the exposure . . . was harmless beyond a
reasonable doubt”); United States v. Swinton, 75 F.3d 374, 382 (8th Cir.
1996) (“[W]here juror misconduct exposes the jury to factual matters not in
evidence, we presume prejudice and require the government to prove beyond a
reasonable doubt that the inappropriate activity did not harm the defendant.”);
Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir. 1986) (“The ultimate
question is whether it can be concluded beyond a reasonable doubt that
extrinsic evidence did not contribute to the verdict.” (quotation omitted)); State
v. Yamada, 122 P.3d 254, 259 (Haw. 2005) (noting that, where court
determines that juror misconduct could prejudice defendant’s right to fair
trial, “the prosecution must show that the alleged deprivation of the right to
a fair trial was harmless beyond a reasonable doubt” (quotation omitted)); State
v. Armstrong, 691 S.E.2d 433, 445 (N.C. Ct. App. 2010) (holding that trial
court applied correct legal standard in requiring state to prove that juror
exposure to extrinsic information was harmless beyond a reasonable doubt); see
generally Influences on the Jury,  37 Geo. L.J. Ann. Rev. Crim.
Proc. 544, 545 (2008) (noting that Sixth Amendment claims of juror bias or
misconduct “are subject to harmless error analysis” and that “[a]n error is
harmless if it is beyond a reasonable doubt that the juror bias and misconduct
did not contribute to the verdict”).
        
¶ 15.         In
its evaluation of juror prejudice, the court must look to “the totality of the
circumstances,” including such factors as the nature and “content” of the
extraneous information, its relative importance to a material issue in the
case, whether it was “inflammatory in nature,” the scope and extent of its
consideration by the jury, and “whether the evidence to support the verdict was
strong.”  McKeen, 165 Vt. at 474, 685 A.2d at
1094.  Because many of these criteria involve a consideration of
facts from the trial itself and the trial court’s first-hand observation of the
jurors, we have held that “every reasonable presumption” should be afforded the
trial court’s decision, and we will not disturb its ruling absent a showing of
abuse or a withholding of discretion.  Id. at 472, 685 A.2d at
1093; accord Lee, 2008 VT 128, ¶ 26; Squiers, 2006 VT 26,
¶ 20.   
¶ 16.         It is
thus readily apparent that the inquiry under Rule 606(b) is strictly objective
in nature, looking to the totality of the surrounding facts and circumstances
to determine whether the extraneous information acquired by the jury had the
capacity to influence the verdict, and, if so, whether we may nevertheless
confidently conclude that it could not have prejudiced the result.  See,
e.g., State v. Johnson, 158 Vt. 508, 523-24, 615 A.2d 132, 140 (1992)
(noting that defendant claiming error due to extraneous jury influence “need
only demonstrate that the irregularity had the capacity to influence the
result, not that it actually did so” (quotation omitted)); State v. Woodard,
134 Vt. 154, 157, 353 A.2d 321, 323 (1976) (explaining that, to demonstrate
prejudice from extraneous information, “[t]he defendant did not have to show
that the circumstances here existing actually did influence the jury”). 
¶ 17.          Consistent
with this objective standard, we have held that jurors may testify to the
factual circumstances surrounding their exposure to extraneous information, but
not to whether the information influenced their verdict.  See State
v. Hudson, 163 Vt. 316, 324, 658 A.2d 531, 536 (1995) (holding that trial
court inquiring into claim of extraneous prejudicial information under Rule
606(b) “properly refused to consider statement by the jurors as to what may
have influenced their deliberations”); State v. Forte, 159 Vt. 550, 561,
624 A.2d 352, 359 (1993) (observing for benefit of trial court on remand that
we “seriously question the interrogation of the jurors on their reaction to the
evidence”).  As this and other courts have explained, an objective inquiry
strikes the proper balance between “conflicting policies of the law,” the one
“designed to insure freedom of deliberation in the jury room” and the other
“the paramount need of preserving the integrity” and fundamental fairness of
jury trials.  Bellows Falls Vill. Corp.
v. State Highway Bd., 123 Vt. 408, 411-12, 190 A.2d 695, 697-98 (1963)
(holding that trial court “exceeded the limits of its authority” when it
inquired of jurors as to whether presence of extraneous evidence influenced
their verdict); see also State v. Hidanovic, 2008 ND 66, ¶ 13, 747
N.W.2d 463 (noting that Rule 606(b) “embodies a balance between the desire for
finality and certainty on one hand and the need to achieve an acceptable level
of fairness on the other hand”); Walsh v. State, 166 S.W.3d 641, 646 n.2
(Tenn. 2005) (observing that Rule 606(b) “represents a compromise between
important public policies” by precluding “inquiries into the jury’s
deliberative process while allowing juror testimony concerning objective
incidents or events that constitute external or extraneous influences”).[2] 
¶ 18.         Applying
these principles to the case before us, we note several key facts at the
threshold.  First, the State does not challenge on appeal the trial
court’s findings that an irregularity in the form of the unidentified juror’s
internet “research” on Somali religion and culture “was brought up by the juror
during deliberations” and that it had the capacity to affect the verdict. 
As the court found, “research about Somali culture and religion had the
capacity to affect the jury’s verdict, as jurors could have relied on it to
interpret the testimony of the Somali witnesses and to determine the
credibility of these witnesses.”  Nor does the State challenge the court’s
finding that the information “was discussed for maybe ten to fifteen minutes”
during deliberations and used by the juror “to support his own position.”
 
¶ 19.         The
question resolves, therefore, to whether the trial court correctly concluded
that the State had met its heavy burden of proving the information was not
prejudicial.  McKeen, 165 Vt. at 474, 685 A.2d at
1094.  Here we note at the outset that the trial court mistakenly
applied a preponderance-of-the-evidence standard to the question of harmless
error, but even ignoring this fundamental error we cannot affirm the
judgment.  As noted, the trial court based its decision on several
factors.  First, it found significance in the fact that no other juror
reported the matter, suggesting that the extraneous information did not affect
the verdict of the other eleven jurors.  It is well settled, however, that
a defendant is “entitled to be tried by 12 . . . impartial and unprejudiced
jurors.”  Parker, 385 U.S. at 365 (rejecting
government’s argument that fair trial was preserved where ten of twelve jurors
testified that they had not heard prejudicial out-of-court statements by
bailiff).  Thus, “if even a single juror’s impartiality is overcome
by an improper extraneous influence, the accused has been deprived of the right
to an impartial jury.”  Fullwood v. Lee, 290 F.3d 663, 678 (4th
Cir. 2002); accord Krause v. Rhodes, 570 F.2d 563, 569 (6th Cir. 1977)
(“If a single juror is improperly influenced the verdict is as unfair as if all
were.”); United States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir.
1977) (“If only one juror is unduly biased or prejudiced or improperly
influenced, the criminal defendant is denied his Sixth Amendment right to an
impartial panel.”); People v. Harris, 185 P.3d 727, 752 (Cal. 2008)
(“Because a defendant charged with a crime has a right to the unanimous verdict
of 12 impartial jurors, it is well settled that a conviction cannot stand if
even a single juror has been improperly influenced.” (citation
omitted)). 
¶ 20.         The
trial court also cited the absence of additional evidence delineating the
precise content of the information conveyed by the juror concerning Somali
religion and culture or indicating that it was “inflammatory” or “directly
related to any material issue in the case.”  While it may be true that the
disclosure was short on substance, there is no doubt that the information
related directly to a subject that pervaded the trial from start to
finish—Somali Bantu culture and its impact on the behavior and testimony of the
trial witnesses.  To recall, for example, the State adduced testimony from
several Somali Bantu elders suggesting that defendant ultimately confessed to
the assault to avoid the dire consequences of lying on the Koran. 
Defendant argued from the same evidence, however, that the admission was
solely to spare his wife from suffering the same fate.  “You may not
believe it, it’s not something that’s part of your culture, but what we believe
isn’t what matters here,” defense counsel argued.  “[I]t was damned if you
do, damned if you don’t.  The only way that [defendant] could save his
family . . . in a way that wouldn’t be catastrophic was to say I admit
it.”    
¶ 21.         The
State argued, similarly, that K.A.’s testimony was believable based, in part,
on testimony that Somali Bantu culture forbids a sexual assault victim from
marrying another Somali Bantu person.  “[S]he told her [mother] knowing
that she was going to make her mother very sad,” the State argued, “knowing
that she was going to probably never be able to marry a Somali Bantu man when
she grew up, and yet she told her story anyhow.”  Defendant countered on
the basis of evidence that Somali Bantu law forbids divorce except in limited
circumstances, including sexual misconduct, and that defendant’s wife had
inquired about obtaining a divorce prior to the incident, thus suggesting a
motive to fabricate the charges against defendant.  The defense even
invoked culture to explain defendant’s seemingly light-hearted demeanor during
trial, recalling testimony that the accusation of a child is “not taken
seriously or permitted to make a difference in Somali Bantu culture.”  He
“did not consider it possible in his culture,” the defense asserted, “to be
convicted on the word of a child.”  
¶ 22.         Although
the State argued that the case ultimately involved a crime, not a culture, the
defense was certainly the more correct in observing that Somali Bantu religion
and culture were central to the jury’s understanding.  As defense counsel
observed, almost all of the witnesses were Somali Bantu and this “put a twist
on everything” that the jury heard.  It was essential, counsel argued “to
understand the people and . . . the[ir] ideas in order
to understand the evidence.”  Thus, counsel concluded: “If you don’t
understand the culture, you don’t understand the evidence,
you don’t understand the people. . . . Don’t let the State tell you
otherwise.”  
¶ 23.         The
record thus demonstrates that Somali Bantu religion and culture lay at the
heart of this case, and it is simply impossible to conclude that outside
information used by at least one juror—as the trial court found—to “interpret
the testimony of the Somali witnesses and to determine the credibility of these
witnesses” could have had no impact on the verdict.  See,
e.g., People v. Staggs, 740 P.2d 21, 23 (Colo. Ct. App. 1987) (reversal
required where outside research by juror bore on credibility of defendant’s and
victim’s version of events); State v. Augustin, 971 P.2d 304, 307-08
(Haw. Ct. App. 1998) (affirming trial court’s conclusion that juror’s
outside investigation revealing defendant’s welfare status “could have affected
her assessment of the credibility of [defendant’s] statement” and “therefore
her verdict” and thus required reversal); State v. Cook, 676 S.W.2d 915,
917 (Mo. Ct. App. 1984) (outside information acquired by juror and conveyed to
another juror could not be deemed harmless where it may have “adversely
affected the credibility” of defense witnesses); see also State v. Corey,
151 Vt. 325, 328, 561 A.2d 87, 88 (1989) (holding that mistrial was required
where outside evidence viewed by jury “bore directly on defendant’s trial
theory . . . and, as a result, had the capacity to affect his rights
prejudicially”).  Whatever the merits of the trial
court’s finding that the evidence of guilt “was strong,” it cannot be
separated from the fact that the verdict turned exclusively on the jury’s
credibility assessment of the testimony at trial.  Accordingly, we
conclude that the judgment must be reversed, and the matter remanded for a new
trial before an impartial jury.   
¶ 24.         Our
holding renders it unnecessary to address the impact, if any, of the extraneous
information concerning juror incompetence or defendant’s other claims.  We
note, however, that the trial court’s explicit inquiry here into whether the
information influenced each juror’s verdict plainly exceeded the limitations of
its authority under Rule 606(b).  However worthy the motive, a court may
not delve into how jurors arrived at their verdict, but must confine its
inquiry to the objective events surrounding the alleged receipt of outside
evidence.  Hudson, 163 Vt. at 324, 658 A.2d at
536; Bellows Falls, 123 Vt. at 412, 190 A.2d at 698.
¶ 25.         We
note, as well, the increasing problem of jurors consulting the internet for
outside information that this case all too clearly illustrates.  See
generally G. Blum, Annotation, Prejudicial Effect of Juror Misconduct
Arising from Internet Usage, 48 A.L.R.6th 135 (2009) (collecting cases).
 Although Vermont trial courts routinely admonish jurors not to consult
outside sources, it may well be time to consider a stronger and more
technology-specific admonition similar to the standard instruction employed,
for example, in Colorado.[3] 
See L. Lee, Comment, Silencing the “Twittering Juror:” The Need to Modernize
Pattern Cautionary Jury Instructions to Reflect the Realities of the Electronic
Age, 60 DePaul L. Rev. 181, 197, 202 (2010) (observing that the internet
has been “wreaking havoc in the courtrooms” and suggesting a need for new
“technology-inclusive” cautionary instructions).  We can not ignore the
realities of our “information age,” where the internet and other technologies
have made information more widely and immediately accessible than ever
before.  
Reversed and remanded for a new trial. 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 







[1] 
Although the phrasing of the trial court’s questions varied slightly, their
purpose at delving into the deliberative process of the jurors was consistent
and unmistakable.  For example, the court inquired of juror G.B.: “Did
that definition or that paper influence you in arriving at your verdict?” 
Juror G.G. was asked: “Did that information influence your verdict in any way?”
and also “Do you know if that description was used in any way to influence any
[other] person to reach a verdict?”  The court asked juror J.C.: “Was that
description, role of a juror, for lack of a better word, was that used in any
way to arrive at your verdict?”  Juror C.K. was asked whether the
information was “used in any way to influence that particular juror [A.R.] to
arrive at a verdict.”          


[2] 
Although, to be sure, one of the factors listed in McKeen for evaluating
juror prejudice is “whether the juror testified that he or she was influenced
by the communication,” 165 Vt. at 474, 685 A.2d at 1094, we are not persuaded
that this isolated statement was intended to overturn longstanding precedent to
the contrary.    


[3] 
Colorado Civil Jury Instruction 1:5 provides, in its entirety, as follows:
 
As jurors, your job is to decide
this case based solely on the evidence presented during the trial and the
instructions that I will give you.  You are not investigators or
researchers, so you must not read or use any other material of any kind to obtain
information about the case or to help you decide the case.  This
prohibition applies, for example, to: dictionaries; medical, scientific, or
technical publications; religious books or materials; law books; and the
Internet.  I want to emphasize that you must not seek or receive any
information about this case from the Internet, which includes Google,
Wikipedia, blogs, and other web sites.
 
If you were to violate this rule
by receiving outside information about the case, it could force me to declare a
mistrial, meaning that the trial would have to start over before a different
jury, and all of the parties’ work, my work, and your work on this trial would
be wasted.
 
Therefore, it is very important
that you not receive outside information about this case, whether it comes from
other people, from the media, from books or publication, or from the
Internet.  You are free to use the Internet, but only for purposes
unrelated to this case.  Do not search for or receive any information
about the parties, the lawyers, the witnesses, the judge, the evidence you will
hear, or any place or location mentioned during the trial.  Do not
research the law.  Do not look up the meaning of any words or scientific
or technical terms used during the trial.  If necessary, I will give you
definitions of words or terms before you begin your deliberations.  
 
Also, you are not allowed to visit
any place(s) involved in this case.  If you normally travel through such a
place, you should try to take a different route until I tell you that your jury
service is completed.  If you cannot take a different route, you must not
stop or attempt to gather any information from that location.
 
Until I tell you that your jury
service is completed, do not communicate with anyone, including family and friends,
about the evidence or the issues in this case.  This prohibition applies
to all forms of communication, including in-person conversations, written
communications, telephone or cell phone calls, and electronic communications
through any device.  For example, you must not communicate about this case
by email, text messages, Twitter, blogging, or social media like Facebook.
 
When court is not in session, you
may communicate about everything other than this case.  You may tell
others that you are on a jury and that you cannot talk about the trial until it
is over, and you may tell them the estimated schedule of the trial, but do not
tell them anything else about the case.  If anyone tries to communicate
with you about anything concerning the case, you must stop the communication
immediately and report it to the Bailiff, who will notify me. 
 
Colo. Jury Instr., Civil 1:5
(4th ed. 2010).  Although this standard instruction is designed to be
given before trial, it may be prudent to repeat such an instruction, or an
abbreviated version of it, before recesses during trial and as part of the
final instructions to the jury.       



