Appellate Insights

Juror misconduct can be a basis for winning a new trial, but teeing the issue up correctly can be tricky.  Here are some of the key points:

• Juror misconduct is one of the few issues that must be raised in a new trial motion.  The Court of Appeal will not consider a misconduct claim for the first time on appeal.
• The new trial motion should include affidavits establishing the misconduct.
• To be admissible, juror affidavits must describe overt statements or events – for example, “Juror X told us to ignore an instruction he disagreed with,” or “I saw Juror Y talking in the hallway with the defense expert.”
• Juror affidavits are not admissible to show the jury’s thought process in arriving at the verdict – for example, “We found witness Z not credible,“ or in a general verdict case, “We relied on X theory.”

►  The practical message: Claims of juror misconduct must be raised in a timely new trial motion, or forever lost. Make sure someone on your team is familiar with the case law on juror affidavit admissibility, both for purposes of drafting admissible affidavits and for objecting if the other side’s affidavits go beyond permissible boundaries.