Broad discretion to investigate jury misconduct

On August 21, 2006, the Third Circuit held that where there is substantial evidence of jury misconduct during jury deliberations, "including credible allegations of jury nullification or of a refusal to deliberate," the judge has the discretion to conduct juror questioning or use other appropriate means to investigate.

In U.S. v. Boone, No. 03-1520, the jury sent several notes to the judge during deliberations, explaining that one of the jurors refused to deliberate because he had already made up his mind about the case before deliberations began. One of the notes also informed the judge that the juror had said "he does not believe anything the police said and thinks everyone is lying." The judge responded with a note reminding the jury of its oath to "well and truly try U.S. v. Kevin Boone . . . and render a true verdict." A final note included comments from both Juror X, the individual who had refused to deliberate, and from the foreperson, indicating that the jury had been deadlocked on several of the counts against the defendant for two days. The judge emptied the courtroom, except for the parties and his clerk, and questioned Juror X, determined that there was no misconduct and that further investigation would be unduly intrusive, and called the entire jury into the courtroom. He instructed the jury to continue deliberating until it decided that "no further discussions would be fruitful."

Boone objected to the note that ordered the jury to continue deliberating, arguing that it was unduly coercive, and that it directly threatened Juror X with perjury charges for refusing to change his mind. Rejecting that argument, the court concluded that it instructions must substantially and explicitly pressure the jury to reach a verdict or a particular result before they will be deemed coercive. This instruction, unlike instructions in other cases that the court cited, did not direct the minority jurors to change their minds (as in U.S. v. Fioravanti, 412 F.2d 407 (3d Cir. 1969)) or advise them that a new trial would lead to "great additional expense" (as the judge did in U.S. v. Burley, 460 F.2d 998 (3d Cir. 1972)).

Boone also challenged the district court's examination of Juror X, noting that in Third Circuit cases where such questioning has been approved, the allegations of misconduct arose during the trial, rather than during deliberations. While recognizing the fact that "the secrecy of deliberations is critical to the success of the jury system," and urging district court judges to exercise greater caution in conducting investigations of jury misconduct during deliberations, the court also pointed out that a refusal to deliberate violates the jury's sworn oath.

The troublesome aspect of the court's decision with regard to the examination of the juror is the court's rejection of the Second Circuit's practice of discouraging juror examination without unambiguous evidence of misconduct. It focused on the district courts' "broad discretion" in evaluating allegations of juror misconduct and its authority to determine the willingness of jurors to carry out their duties.

Finally, Boone objected to the district court's instruction to the full jury during deliberations, in which he advised the jury to continue deliberations if it felt it could reach an agreement, whether because the minority jurors changed their minds, or because the majority jurors did. The court rejected Boone's argument that it constituted an Allen instruction, which the Third Circuit has deemed reversible error except in "very extraordinary circumstances." See Fioravanti, 412 F.2d at 240. Rather than suggesting that the minority jurors held "less intelligent or reasonable views than the majority jurors," which would be reversible error, the instruction directed the jurors to continue deliberating until they reached an impasse.