Contaminating the Verdict: The Problem of Juror Misconduct

30 Pages Posted: 4 Nov 2008  

Bennett L. Gershman

Pace University - School of Law

Date Written: 2005


Part I of this article discusses the problem of juror misconduct raised by the Stewart and Tyco cases. Although a considerable body of scholarship on the jury system, jury selection techniques, and jury decision-making exists, the issue of juror misconduct has not been as closely or systematically studied. Cases and commentaries typically address isolated instances of aberrant and prejudicial conduct by jurors that arguably may have contaminated the trial. Rarely, however, do these discussions attempt to provide a coherent framework in which to analyze the diverse kinds of misconduct by jurors that may impair the integrity of the trial and the defendant's constitutional right to a fair trial by an impartial jury. Nor do these discussions examine in a comprehensive manner the available and appropriate legal responses to juror misconduct and the obstacles that may frustrate effective judicial inquiry.

Part II describes the myriad ways in which misconduct by jurors can contaminate a trial and verdict and the ability of courts to remedy such misconduct. This Part examines the case law in which criminal defendants have challenged their convictions on the basis of juror misconduct. Defendants have claimed that jurors were influenced by external contacts with third parties, exposed to extraneous, non-evidentiary information, engaged in contrived experiments and improper reenactments in the jury room, made dishonest and misleading statements during jury selection, engaged in conduct demonstrating bias and prejudgment, suffered from physical and mental impairments, engaged in pre-deliberation discussions of the evidence, and willfully violated the trial court's legal instruction.

Part III provides a framework to analyze the reasons for juror misconduct. This Part examines recent developments in criminal trial litigation that have encouraged jurors to take a more active role in the proceedings while at the same time protecting the juror's privacy and security. Given the easy accessibility of the Internet and the attempt by some jurors to thrust themselves into the public arena in highly publicized trials, there is a heightened danger that some jurors will misuse their power and contaminate the verdict. Moreover, strong public policies caution against probing verdicts and exposing juror misconduct. When a report of juror misconduct is made during the trial and before deliberations commence, the trial judge's ability to remedy the problem is greatest. When a report of juror misconduct is made during deliberations, as in the Tyco case, or after a verdict, as in the Stewart trial, overriding policy considerations may severely limit a trial court's ability to investigate and remedy the irregularity. As a consequence, the integrity of some verdicts may be undermined by a tainted jury.

The Article concludes that the problem of juror misconduct is not insignificant, and that courts have had mixed success in dealing with the problem effectively. Although the quest for the perfect trial may be illusory, the ability of some jurors to contaminate the proceedings may deprive a criminal defendant of a fair trial by an impartial jury.

Keywords: juries, verdicts

Suggested Citation

Gershman, Bennett L., Contaminating the Verdict: The Problem of Juror Misconduct (2005). South Dakota Law Review, Vol. 50, 2005. Available at SSRN:

Bennett L. Gershman (Contact Author)

Pace University - School of Law ( email )

78 North Broadway
White Plains, NY 10603
United States
914-422-4255 (Phone)
914-422-4168 (Fax)

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