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Feb 3, 2012

Another Verdict Falls Due to Internet Research

The Vermont Supreme Court has reversed a conviction for aggravated sexual assault on a child because a juror in the case was found to have researched Somali religion and culture, which was an issue in the case. State v. Abdi, No. 2010-255, 2012 VT 4, 2012 WL 231555, 2012 Vt. LEXIS 5 (Jan. 26, 2012).

The defendant in the criminal case was a member of the Somalian immigrant community in Burlington, Vt. who was accused of sexually assaulting his nine-year-old niece, based on the word of the child. Testimony in the criminal trial included discussion of issues such as Somali cultural attitudes towards such accusations by a child, whether a sexually-assaulted child would be able to eventually marry within the community, and the grounds that the community would accept if the defendant's wife wanted to divorce him. (Regarding the latter, the defense argued that the defendant's wife had a motive to fabricate the accusation, since sexual misconduct is seen as legitimate grounds for divorce in Somali culture.)

After a two-day trial, the jury found the defendant guilty of one count of aggravated sexual assault on a child based on one incident, but was unable to reach a verdict on a second count of the same charge, based on a second alleged incident.

A few days after trial, one of the jurors contacted the trial court to complain that she had been intimidated into voting for a guilty verdict by another juror who had read aloud a definition of an “incompetent juror” from a piece of paper. The court held a hearing on the matter, during which other jurors corroborated this story, and that the definition apparent came from the Internet. All of the jurors questioned, other than the one who reported the incident, said that this information had not effected their verdict.

During the hearing, another juror revealed that during deliberations a fellow juror had announced the results of Internet research into Somali culture, and that the jury had discussed these findings for about 10 or 15 minutes.

The defense sought a new trial based on both of these incidents, but the district court denied the motion. As to the “incompetent juror”definition, the district court said that the information "did not relate to any material element or defense at trial and thus did not have the capacity to influence the verdict." Abdi at ¶ 11. And it held that the information on Somali culture included "no specific information indicating that it was inflammatory or directly related to any material issue in the case," id., and that it appeared that the information "was basically ignored by all the other jurors and did not affect their verdict." Id.

On appeal, the Vermont Supreme Court disagreed. After discussing the legal standards applicable in cases in which jurors are alleged to have based their verdict on extraneous evidence not submitted into evidence during a criminal trial, the Supreme Court concluded that "... Somali Bantu religion and culture lay at the heart of this case, and it is simply impossible to conclude that outside information used by at least one juror—as the trial court found—to “interpret the testimony of the Somali witnesses and to determine the credibility of these witnesses” could have had no impact on the verdict." Id. at ¶ 23. Thus, the Court concluded, the trial verdict must be reversed and a new trial was necessary. Id.

Because of  its ruling on the juror's research into Somali culture, the Court said it did not need to decide the impact of the separate research into the definition of an incompetent juror. Id. at ¶ 24.

The Court went on to discuss the general issue of juror use of the Internet, and the need for comprehensive jury instructions on the issue -- which I have advocated in the past.
We note ... the increasing problem of jurors consulting the internet for outside information that this case all too clearly illustrates. Although Vermont trial courts routinely admonish jurors not to consult outside sources, it may well be time to consider a stronger and more technology-specific admonition similar to the standard instruction employed, for example, in Colorado. We can not ignore the realities of our “information age,” where the internet and other technologies have made information more widely and immediately accessible than ever before.
Id. at ¶ 25.

After an addition in 2010, Vermont’s criminal jury instructions are actually already somewhat specific in their admonitions against Internet and social media use and research.
Your verdict must be based solely on the evidence admitted during the trial. During your deliberations, you must not seek any information about this case from any outside source, including but not limited to television, newspaper, radio, cell phones, iPhones, smart phones, BlackBerries, social networking sites, or any site on the internet.

You also must not communicate by any means about your deliberations with anyone who is not a fellow juror. This includes tweeting, texting, blogging, emailing, posting information on a social networking site or other website, or any other means of communication at all.
Vt. Crim. Jury Instr. Comm., Model Crim. Instr. 03-051 (adopted 2010).

But as the Vermont Supreme Court noted, it is important for courts to discuss these issues in detail with jurors, and to repeat the admonitions frequently during trials. 

It's also a good idea to explain why these restrictions are necessary, and the important legal issues at stake when a juror pulls out her smartphone.

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