When Jurors Sleep or Don't Pay Attention

You wouldn't know it from watching TV, but courtrooms aren't always exciting. In fact, proceedings can be so painstaking that jurors stop paying attention—that is, if they don't completely nod off. Tempting as the urge may be, jurors who don't pay attention cause serious problems for the parties and the courts.

The Right to Jurors Who Pay Attention

Under the Sixth and 14^th Amendments to the U.S. Constitution, a criminal defendant in a jury trial is entitled to a fair and impartial jury. (Morgan v. Illinois, 504 U.S. 719 (1992), Duncan v. Louisiana, 391 U.S. 145 (1968). See The Right to Trial by Jury.) Therefore, if any member of a jury engages in behavior that prevents a defendant from receiving a fair and impartial trial, that misconduct must be corrected; otherwise, the trial is unconstitutional.

An issue that sometimes arises is whether a defendant should get a new trial when jurors sleep or otherwise don't pay attention in court. For example, if a juror slept through the testimony of the defendant's alibi witness, or was writing a letter to a family member and didn't hear the judge's instructions on a point of law, is the defendant entitled to the juror being removed from the case – or perhaps even a new trial?

The Defendant's Burden

Defendants who allege misconduct based on juror inattentiveness must show that:

• the juror did in fact sleep or otherwise not pay attention during the trial, and
• the juror missed important information that made it impossible to render a fair, informed, and impartial verdict.

Proving Inattention

Defendants should present evidence that a juror is sleeping or inattentive as soon as possible. Courts usually won't grant a motion for a mistrial or new trial if the defense knew that a juror was sleeping or inattentive but didn't bring it up until the end of trial.

While sleeping is the most obvious impediment to paying attention, problems also occur when jurors only partiallypay attention. For example, courts have found misconduct when jurors were reading, doing crosswords, writing letters, texting, and using social media. In contrast, momentary "dozing" and "head nodding" usually doesn't rise to the level of misconduct.

Defendants often try to prove juror inattention through affidavits or statements from people who observed the juror's behavior (like bailiffs, witnesses, and other jurors). Defendants who notice this kind of misconduct during trial are supposed to ask the judge to question the juror directly (referred to in court as "voir dire") about whether the juror was sleeping or not paying attention.

Proving prejudice

Once a defendant has established that a juror was sleeping or inattentive, he must prove that the juror's conduct was likely to affect the outcome of the case. The defendant should explain what specific information the juror missed and why that information was critical. Simply stating that the information was "crucial" isn't enough to show prejudice. Examples of critical parts of trial include:

• the judge's instructions to the jury
• the defendant's presentation of key witnesses, especially alibi witnesses
• closing arguments, particularly the defendant's
• expert testimony, and
• eyewitness testimony

The Court's Determination

A court will evaluate a defendant's claim of juror misconduct in light of all the circumstances of the trial. Most requests for a new trial based upon juror misconduct fail because it is often very hard for a defendant to meet the prejudice standard. For example, if a juror slept through one portion of closing argument, but the lawyer repeated the missed information later in the argument, the court would likely find that the defendant was not prejudiced. The judge would probably rule similarly if a juror was caught doing crosswords during the testimony of an expert witness, but could show that she knew and understood the expert's opinion.

The Prosecutor's Role

When a defendant raises the issue of juror inattentiveness, a court will typically ask the prosecutor whether he also noticed the juror's allegedly inattentive behavior. The prosecutor has the right to object to any proposed remedies for juror misconduct.

Although the Sixth Amendment right to a fair and impartial jury specifically protects the defendant, not the prosecutor, prosecutors can also raise the issue of juror inattentiveness and request that the court remedy the problem.

Remedies

If the defendant does manage to convince the court that a sleeping or inattentive juror prejudiced her case, there are a number of possible remedies, including:

• discharging the juror and replacing her with an alternate
• holding the juror in contempt
• instructing the jury that sleeping and inattentiveness won't be tolerated, and that jurors who violate that order could be dismissed and sanctioned
• granting a motion for mistrial (if the misconduct was discovered before the verdict), and
• granting a motion for a new trial (if the misconduct was discovered after the verdict).