Court can't compel examination of juror's electronic devices to look for misconduct, 6th Circuit rules

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A federal appeals court has ruled that a district court has no power to order an examination of a juror’s electronic devices to determine whether an outside influence affected the verdict.

The 6th U.S. Circuit Court of Appeals at Cincinnati ruled Sept. 23 in an appeal by Alexander “P.G.” Sittenfeld, a former Cincinnati City Council member who was convicted of bribery and attempted extortion under color of official right.

Sittenfeld had sought a forensic examination of the electronic devices of “Juror X” after learning that she had discussed another juror in a Facebook post, and that commenters on her Facebook posts had mentioned the trial.

Juror X’s posts could be viewed only by her Facebook friends, one of whom was a court employee who told the trial judge about the posts. Juror X didn’t include facts about the case, didn’t name the defendant and didn’t discuss the proceedings.

But Juror X wrote that another juror “shouldn’t be on the jury because [she] hates anyone that shares the same profession as our person on trial. Not cool!!!”

One commenter identified Sittenfeld by name, spurring Juror X to hide the comment. Another linked to an article about the case published before trial. And another commenter posted their thoughts on jury nullification and jurors’ right to return a not guilty verdict if the law is unfair.

The judge ordered Juror X and the other juror she criticized, referred to as “Juror Y” in the opinion, to appear in chambers for questioning.

Courts have such Remmer hearings when a defendant alleges that outside information or contact had a negative influence on the jury. The name is based on Remmer v. United States, a 1954 U.S. Supreme Court decision on the issue.

During questioning by Sittenfeld’s lawyer, Juror X said she didn’t click the link to the newspaper article and did not read news about the case. She gave Sittenfeld’s lawyer her cellphone, so he could read all the posts and comments. She also said she did not engage in private messaging about the case with anyone, including other jurors.

In her testimony, Juror Y “repeatedly and emphatically” denied hating politicians and said she had no bias against the defendant.

The judge provided the parties with screenshots of all the Facebook posts and comments. Four days later, Sittenfeld sought an order requiring Juror X to preserve all data on all her electronic devices that she could have used to access Facebook during trial. The judge agreed, ordering Juror X to preserve all electronic communications relating to service as a juror.

When the jury coordinator told Juror X about the judge’s order, Juror X said she had already deleted the Facebook posts and comments. Sittenfeld’s lawyer then moved for a forensic examination of the juror’s electronic devices.

The judge denied the motion, and the 6th Circuit affirmed in an opinion by Judge Alice M. Batchelder.

“We hold that in conducting the Remmer hearing, a court cannot order a search of a juror’s belongings—electronic or otherwise,” the appeals court said. “For example, a court conducting a Remmer hearing cannot order a search of a juror’s home, office, car or person; cannot order a juror to turn out her purse, pockets or wallet; cannot order a juror to submit to a blood test, a urine test, a breath test or a DNA test. And, most pertinent here, in conducting a Remmer hearing, a court cannot order a juror to hand over his or her cellphone, computer or other electronic devices, nor order a search or forensic examination of a juror’s devices.”

If a judge suspects that juror misconduct constitutes a crime, that is a matter for a prosecutor to investigate, the appeals court said.

“The court has no power to conduct a criminal inquisition,” Batchelder wrote.

Judge Julia Smith Gibbons, a concurring judge, agreed with the result but said the majority opinion was written too broadly.

“I would refrain from broad statements of law that purport to limit the discretion of a district court in further cases with differing circumstances,” Gibbons wrote.

Hat tip to Law360, which had coverage of the opinion.

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