Delaware Trial Handbook § 26:1. CONDUCT OF JURORS DURING TRIAL

Jurors should not discuss the case amongst themselves until they retire to begin their deliberations.1 The purpose of this rule is to prevent jurors from committing themselves one way or another before they have had an opportunity to hear all of the evidence, arguments of counsel, instructions and discussions of other jurors.2 Similarly, jurors who are not sequestered should not discuss the case with family, friends, co-workers or anyone else, as the jurors may be influenced by the ideas and opinions of third parties who have not heard the evidence or had an opportunity to observe the witnesses.

The trial judge has discretionary authority to permit the jurors to take notes during the trial and to carry such notes into the jury room. Such action is particularly appropriate in complex trials involving many witnesses, claims or charges.3

Of particular concern in the Internet era is jurors using electronic devices to do independent research, or to communicate with others about the trial.  Such action can be so inherently prejudicial that it raises a presumption of prejudice. Once a judge has been presented with evidence of Internet research by a juror it is mandatory for judge to conduct an investigation.  The judge must determine whether the alleged Internet research actually occurred; if it occurred, the content of the outside research; whether the content prejudiced the researching juror; and whether the results of the research were communicated to other jurors.  If the judge determines that there is sufficient evidence to rebut the presumption of prejudice, a new trial is not required.  If, however, the presumption is not rebutted, the trial judge must grant a motion for a new trial.3.1

Use by a juror of alcohol or drugs during a trial, though frowned upon, will not be deemed prejudicial per se in the absence of evidence that the juror was in fact intoxicated during the trial.4

1. See Claudio v. State, 585 A.2d 1278, 1299 (Del. 1991); Bums v. McKiver, C.A. No. 9lC-02-021, slip op. at 2, Steele, J. (Del. Super. Apr. 15, 1992).

2. Claudio v. State, 585 A.2d 1278, 1299 (Del. 1991).

3. State v. Bug Out Exterminating Co. of Delaware, Inc., Cr. A. Nos. 79-01-1267, 1189-1196, slip op. at 5, Christie, J. (Del. Super. Dec. 13, 1979).

3.1.  Baird v. Owczarek, 93 A.2d 1222, 1228-30 (Del. 2014).

4. Massey v. State, 541 A.2d 1254, 1258 (Del. 1988).

© 2014  David L. Finger