September 07, 2005

Sleeping Jurors Ok?

by Sean Sirrine

I was sent this story today by some listserver, (I can't keep up with all the stuff I get anymore), and I couldn't help but doing a double-take. Sleeping jurors aren't a reason to appeal? I thought for sure that I must have misread that, so I read it again and this time I was sure I got it right:

The Appellate Division rejected the argument that the defendant was entitled to jurors who have heard all the evidence.

Um, excuse me? A defendant is not entitled to jurors who have heard all of the evidence? I mean, I know some evidence can be kept out of the courtroom, but what about the evidence that is allowed? Shouldn't Due Process include not only jurors, but jurors that are awake? I mean, if they don't have to be conscious, are they actually performing any function at all?

The Appellate Division also had this to say:

Feinberg took "proper remedial measures" by opening the windows after surveying the jury. Further, since defense counsel did not request anything more at the time, the issue could not be raised on appeal.

Ok, so this looks like might have been procedural error on the part of the lawyer, maybe he should have asked for a mistrial at this point. The statistics that followed, however, made me side with the argument of defense's counsel that "a sleeping juror is per se a structural error not amenable to harmless error review":

Sleeping jurors are not uncommon. A 1996 survey of state and federal judges by Vanderbilt Law Professor Nancy King found that 69 percent of the 562 respondents had seen at least one in an estimated 2,300 cases during the preceding three years.

Now we know why they don't want to remove it from harmless error review, it is too common! Maybe we need to hire someone to monitor the jurors (maybe we need to poke them with a stick during trial if necessary). If they are sleeping, I don't think they should be making decisions that can affect another human for the rest of their life. I've just spent days on end in discussion of how one of the policy goals of the court system is to reach a "just" result. Is this just?

All you lawyers out there that disagree with me think about this hypothetical. Imagine that you are presenting oral argument to a judge in a case without a jury. You realize that the judge has fallen asleep during your opponents direct examination of a witness that you believe is lying on the stand. You say, "Hey judge, I think you should be awake to listen to this", and the judge decided he doesn't need to. He opens a window and allows the case to continue without ever revisiting that testimony.

Are you ok with that? I'm not, and I'm sure anyone who has ever been convicted, (or lost a case), due to sleeping jurors isn't. Not only do I think there should be a right of appeal if a juror sleeps through evidence, but I think that the juror should be found in contempt of court.

September 7, 2005 10:49 PM | TrackBack

Sleeping judges, sleeping counsel, sleeping jurors, sleeping court stenographers, sleeping clerks, sleeping bailiffs, sleeping plaintiffs, sleeping defendants, sleeping witnesses - just lay Lady Justice down, with her blindfold on so she can sleep too and to heck with the scales. Even appellate justices must sleep. Say good night, Gracie.

Posted by: Shag from Brookline at September 8, 2005 07:01 AM

At the risk of putting my foot back in my mouth, a couple of thoughts...

A sleeping judge is more like 12 sleeping jurors than one sleeping juror. Judges shouldn't be allowed to sleep. If, however, 1 in 12 jurors (or 6 or 8 or whatever the number is in the case) is caught dozing off for a few minutes of a several-day trial, I don't think that sort of thing is grounds for throwing out a whole trial.

Jurors aren't *entitled* to sleep, which is to say that a lawyer can always ask a judge or a bailiff to wake up a juror, but I don't think that a defendant who sees a juror with his eyes closed should get to say "hey, free appeal."

It's a matter of degree, in my opinion, not grounds for a per se rule. If half the jury just treats the whole trial as a chance to catch up on their sleep, the trial should be thrown out. If one juror dozes off for five minutes, tough luck. Cases that fall in the middle should be looked at more closely. And maybe death penalty cases are different.

News headlines that say "jurors were caught sleeping during a trial in which they sentenced a defendant to 20 years in prison" reflect badly on the justice system, but defendants aren't entitled to perfect trials.

Posted by: TO at September 8, 2005 08:45 AM

May you all get sleeping jurors at your 25 to life trials

Posted by: koondawggie at March 30, 2008 12:04 PM
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