By Nicole Killoran
State v. Abdi, 2012 VT 4
If you are a denizen of the Internet, as is obviously the case if you are reading this article, then you probably understand the burning itch to find more information about a very particular subject. You know the feeling: you have a conversation about an obscure topic, be it the proper pronunciation of the word “neanderthal” or the air speed of an unladen swallow, and you cannot rest until you have googled enough information on the subject to pass a standardized test in either anthropology or aerodynamics.
The Internet has effectively erased the barriers between the average human and his or her ability to gather large amounts of meaningless information on random subjects without resorting to bookshelf or library. No longer does laziness stand in the way of curiosity. In other words, it is the future, and we are all Cliff Clavin.
The ease of access to such massive volumes of largely useless information takes center stage in today’s case, cast alongside a set of truly distasteful facts that are largely inapposite to the court’s opinion. Suffice it to say that the underlying circumstances of the case involve an accusation of several instances of sexual assault on a child, Defendant’s niece. Defendant is a recent Somali Bantu immigrant to Vermont. Upon learning of the victim’s accusations, which in Somali Bantu law and culture are not taken seriously without adult testimony or further inquiry, the elders of Defendant’s community sought out Defendant in his home and confronted him. The elders asked him to swear thrice on the Koran that he did not assault his niece. Defendant denied the accusations twice with a “no,” but replied the third time with a “yes.” The Bantu elders then contacted the police.
At trial the Defendant’s culture and religion, and the elders’ methods of addressing such accusations, came to bear on the credibility of the various Bantu witnesses who testified. The jury returned a guilty verdict following a two-day trial. Several days later, a member of the jury notified the trial court that one of the other jurors “went on the internet” after the first day of deliberations and returned with a printed definition of “incompetent juror.” The Defendant filed a motion for new trial alleging jury misconduct, and the trial court hauled the jurors back in to court to question them regarding the matter.
The issue of jury misconduct is rooted in the trial rights afforded to all criminal defendants under the Fifth and Sixth Amendments, including the right to a jury trial and the right to confront and cross-examine witnesses testifying against the defendant. Over time, the courts have interpreted these rights to require that a jury’s verdict be based entirely on the evidence presented to the jury at trial, to ensure that every criminal defendant receives “a fair trial free of extraneous influences.”
But as sometimes happens, the curious mind of the Internet user, accustomed to instant access to information, overcomes even explicit instructions by the trial court judge to not seek any information from outside the court room to aid in deliberation. During the course of the misconduct hearing, the court discovered that yet another juror had utilized the internet, this time to research the Somali Bantu culture and religion, what “drives and motivates the Somalians,” and “what may have influenced them to make their decisions on the answers they gave.”
Unsurprisingly, following the misconduct hearing, Defendant filed a supplemental motion requesting a new trial for this second instance of jury misconduct. The trial court concluded that the jurors’ indiscretions amounted to an “irregularity” that was unrelated to the substance of the trial and incapable of influencing the verdict, and denied Defendant’s motion for new trial.
On appeal, the SCOV considers both the Defendant’s claims of jury misconduct, though the opinion only addresses the misconduct arising from the internet Somali Bantu research. Due to the importance of not polluting the jury deliberation process, and of preserving the criminal defendant’s right to a fair jury trial, Rule 606(b) of the Vermont Rules of Evidence protects former jurors from having to testify regarding the validity of a verdict. When a charge of jury misconduct is brought, however, Rule 606(b) permits a juror to testify to the presence of “extraneous prejudicial information” in jury deliberations.
As the SCOV has applied Rule 606(b) over the years, it has developed a two-prong objective inquiry that translates into an evidentiary dance at the trial court level. In raising a claim that the “extraneous prejudicial information” improperly influenced the jury, the Defendant must first demonstrate that an irregularity occurred, and that it had the capacity to affect the jury’s decision. The State must then demonstrate beyond a reasonable doubt that the extraneous information was harmless. The trial court must consider the totality of the circumstances in determining whether the extraneous information warrants a new trial. Out of respect for the trial court’s unique position in taking evidence and observing jury reactions, the SCOV will only reverse the trial court’s decision on a showing that the judge abused his discretion.
At trial, Defendant demonstrated sufficiently that the juror’s unidentified Internet research on the subject of Somali Bantu culture was an irregularity with the potential to influence the verdict. The SCOV therefore quickly narrows its discussion to the precise question it must decide upon: whether the State met its evidentiary burden in demonstrating that the Internet information had no prejudicial effect on the jurors.
The SCOV takes issue with the evidentiary burden the trial court applied to the question, noting that the judge only found by a preponderance of the evidence that the State had proven harmless error. But regardless of this evidentiary gaffe, the SCOV concludes that the State did not meet its burden for two reasons. First, the SCOV dismisses the trial court’s conclusion that the outside research conducted by one juror did not influence the others by noting that a criminal Defendant is entitled to a jury of twelve, not eleven, impartial citizens.
Second, the SCOV examines the influence of Somali Bantu culture and religion on the testimony of witnesses from Defendant’s community, and concludes that an understanding of Somali Bantu was central to the jury’s ability to interpret the evidence at trial. The SCOV concludes that the use of such information by one juror, on a subject so central to the case, and to which the Defendant had no opportunity to respond, clearly had the capacity to influence the jury’s verdict. Any reasonable judge would have reached the same conclusion.
Having found reason to remand to the trial court on these grounds, the SCOV declines to address the printout of the definition of “incompetent juror.” The opinion closes with a suggestion that the trial courts consider adopting jury instructions that describe in detail the extent to which a juror may not consult outside sources of information, providing in a footnote the language of an exemplary instruction from the State of Colorado. As the SCOV says, “[w]e cannot ignore the realities of our ‘information age.” But we can try to close the tubes.
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