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Say that something is said during a trial, and for whatever reason (an objection, irrelevant, etc.) the judge says that it should be stricken from the record, and the jury basically forget it. But then, during the jury's deliberation, a juror Jerry keeps bringing up what happened, bases his conclusion upon what happened, and tries to convince others based on those stricken statements.

Will Jerry the juror face any reprecussions? Contempt of court, perhaps? Or is this like Jury Nullification, where the judge "advises" something, but the jury is actually allowed to do whatever it wants.

chausies
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2 Answers2

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Jury misconduct

What you describe is jury misconduct.

The other jurors should shut down this type of speculation in the jury room by referring the dissident juror to the judge's instructions. If the juror persists, the other jurors are legally bound to report it to the judge. Jurors are only allowed to consider evidence that is properly before the court; statements or information that has been stricken from the record are not.

The judge can reaffirm their instructions that the matter is not valid for consideration by the jury, which would normally be sufficient. If the juror persists, the judge can remove them from the jury and, in jurisdictions where jury misconduct is a crime, refer them for prosecution.

Dale M
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Jurors have an obligation to not consider evidence they have been instructed to disregard

Jurors are expressly instructed to not consider evidence that was not admitted in the trial. They must comply with this instruction. This is a legal obligation and they are presumed to follow it.

The principle of juror secrecy will almost always prevent evidence of non-compliance with the above obligation

Were a juror to not comply with this obligation, evidence of that non-compliance will never properly come to the court's awareness, unless the improper information came to the jury from outside.

The common law rule, applicable in Canada, is that evidence about what occurs among the jurors in the jury room is inadmissible. This is traceable back to a judgment of Lord Mansfield, Vaise v. Delaval (1785), 1 T.R. 11, 99 E.R. 944 (K.B.).

For example, evidence that a jury foreperson told other jurors of an accused's previous convictions (even though evidence about previous convictions would be almost always be inadmissible in the trial) was inadmissible as evidence of an improper verdict. See R. v. Pan; R. v. Sawyer, 2001 SCC 42, para. 56.

The rule is this (para. 77):

statements made, opinions expressed, arguments advanced and votes cast by members of a jury in the course of their deliberations are inadmissible in any legal proceedings. In particular, jurors may not testify about the effect of anything on their or other jurors’ minds, emotions or ultimate decision. On the other hand, the common law rule does not render inadmissible evidence of facts, statements or events extrinsic to the deliberation process, whether originating from a juror or from a third party, that may have tainted the verdict.

This category of "extrinsic" interference includes things such as: the fact that a prosecutor entered the jury room and erased the blackboard (R. v. Mercier et al. (1973), 12 C.C.C. (2d) (Qc. C.A.)); the fact of improper communications between a juror and one of the parties (R. v. Mehl, 2021 BCCA 264); etc. What matters is if the information or influence comes from "outside the jury."

If the information is in the juror's head, because of their own experiences, especially the experience of being in the very trial that they observed, the fact that they shared that information with other jurors and the effect it might have had on deliberations is inadmissible.

As just one example of the dividing line, the Supreme Court of Canada wrote (para. 62):

For example, if a juror shares with his fellow jurors his detailed familiarity with the location where the crime was alleged to have been committed, this may be viewed as an intrinsic matter protected by the secrecy rule. If the same juror, however, went on a visit to the site, took photographs and brought them back to the jury room to support his interpretation of the facts at issue, this may be extrinsic, outside information that falls outside the secrecy rule.

Comparison to nullification

For the same reason, jury nullification is seen as a de facto power of a jury, even though it is contrary to the law.

juries have a de facto power to disregard the law as stated to the jury by the judge. We cannot enter the jury room.


Some comparative law

The High Court of Australia, while agreeing that the general jury secrecy rule applies in Australia, said the rule does not operate to preserve the secrecy of criminal conduct ([2014] HCA 3). The evidence in question was a note from a juror that said they had been "physically coerced by a fellow juror to change [their] plea."

Jen
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