New Jersey Juror Declared In Contempt For Googling During Jury's Deliberations
As wonderful as modern technology has become, this case demonstrates how the availability to readily access the Internet from almost anywhere on hand held devices and smart phones can negatively impact the sanctity of our judicial system.
FACTS
Kaminsky participated as a juror in State v. Luis A. Montas, Indictment No. S-149-11, a criminal matter in which Montas was indicted for allegedly selling 1,500 ecstasy pills to an undercover agent. The jury heard the case over the course of five days in December, 2011. Kaminsky was designated the jury foreperson.
During the jury voir dire process and throughout the trial, the trial judge reminded the jury of its obligation to refrain from researching the law, the court, the attorneys, the judge, or the trial itself. The trial judge specifically instructed the jurors that they were prohibited from using social media during the course of their service.
Once the jury was sworn, the trial judge read similar instructions:
Your deliberations should be based on the evidence in the case without any outside influence or opinions of relatives or friends. Additionally, I must instruct you not to read any newspaper articles, or search for, or research information relating to the case, including any participants in the trial, through any means, including electronic means. Do not do any research on the Internet, in libraries, in the newspapers, or any other manner -- or conduct any investigation about this case. . . . Also do not research any information about this case, the law, or -- again -- the people involved, including the parties, the witnesses, the lawyers, the judge, or the court personnel.
I am sure that you can understand why this instruction is so important. Newspaper and media accounts are not evidence, are often based upon second or third hand information, purely hearsay, not always accurate and not subject to examination by the attorneys.
I have no way to monitor you in this area but must rely upon your good faith and the fact that you have been sworn to comply with the instructions of the court so that both sides may receive a fair trial. Because this instruction is so important, it is my duty to remind you of it at the end of each day’s proceedings.
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You are not permitted to visit the scene of the alleged incident, do your own research or otherwise conduct your own investigation. Your verdict must be based solely on the evidence introduced in this courtroom.
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It is your duty to weigh the evidence calmly and without bias, passion, prejudice or sympathy, and to decide the issues upon the merits.
Further, before each break and at the end of each day, the trial judge reminded the jury it was not permitted to discuss the case, and the use of the Internet to obtain any information pertaining to the case was forbidden.
The jury ultimately returned a deadlocked verdict resulting in the trial court declaring a mistrial.
While the jury was still deliberating, it was revealed by a fellow alternate juror that Kaminsky had conducted Internet research on the possible criminal penalties that the defendant (Montas) was facing. Coincidentally, the alternate juror was a neighbor of fellow Bergen County Superior Court judge. That judge then informed his colleague (the trial judge), thus prompting the trial judge to conduct a hearing in his Chambers (also known as an in camera hearing) in the presence of the prosecutor and defense counsel with the alternate juror participating by telephone. Based on the testimony offered by the alternate juror, the court issued an order to show cause compelling Kaminsky to appear before the Court and demonstrate why he should not be held in contempt.
While the jury was still deliberating, it was revealed by a fellow alternate juror that Kaminsky had conducted Internet research on the possible criminal penalties that the defendant (Montas) was facing. Coincidentally, the alternate juror was a neighbor of fellow Bergen County Superior Court judge. That judge then informed his colleague (the trial judge), thus prompting the trial judge to conduct a hearing in his Chambers (also known as an in camera hearing) in the presence of the prosecutor and defense counsel with the alternate juror participating by telephone. Based on the testimony offered by the alternate juror, the court issued an order to show cause compelling Kaminsky to appear before the Court and demonstrate why he should not be held in contempt.
Shortly after the court issued its order to show cause, a second juror in the case came forward to report Kaminsky's misconduct to the Bergen County Prosecutor. This prompted the trial judge to conduct a second in camera hearing, during the course of which juror #2 testified that Kaminsky mentioned he had looked up on the Internet, prior to the jury's deliberations, the possible punishments the defendant could face if convicted. Juror #2 further testified that Kaminsky became "physically sick" over the prospect of putting someone's child in prison for 30 years, and that he tried to persuade other jurors to acquit the defendant by trying to create evidence that didn't exist. Juror #2 felt that Kaminsky became "tainted" as a result of prematurely researching the possible criminal penalties and feared that he had influenced two other jurors.
LAW
The court's contempt powers extend to “[d]isobedience or resistance by any court officer, or by any party, juror, witness or any person whatsoever to any lawful writ, process, judgment, order, or command of the court.” N.J.S.A. 2A:10-1 (emphasis added).
The court evaluated three factors to determine whether Kaminsky committed criminal contemp: 1) whether Kaminsky conducted independent research; 2) whether such act was contemptuous; and 3) whether such act was performed willfully and contumaciously, with a complete disregard of the court’s authority and instructions. See State v. Vasky, 203 N.J. Super. 91, 100 (App. Div. 1985) (citing In re Hinsinger, 180 N.J. Super. 491, 497 (App. Div. 1981)) (“Even when a person commits contempt which directly insults the court, it must still be proven that he acted with criminal intent. The contemnor must be accorded the opportunity to attempt to show that he did not possess the requisite mens rea, but this may be done at the summary hearing.”). That is, a defendant is guilty of the offense of contempt when he undertakes a willful action in deliberate disregard of the court’s orders. State v. Garcia, 195 N.J. 192, 204-05 (2008)
DECLARING KAMINSKY IN CRIMINAL CONTEMPT
A “clear message” needed to be sent that “jurors must heed instructions to refrain from conducting independent research,” said Superior Court Judge Peter E. Doyne in finding Kaminsky in criminal contempt of court. Although Judge Doyne described Kaminsky as a “sincere, conscientious person” who “mistakenly sought to fulfill his duty as jury foreman and lead the jury to a proper verdict,” he found that “when a juror conducts independent research, he bypasses the rules of evidence and allows the information to evade the judge’s scrutiny, thereby running the risk he is considering improper information and, consequently, reducing the chances of a just verdict.”
Kaminsky’s purpose as a juror “was not to weigh the merits of a particular punishment,” Doyne remarked, noting that the foreman’s “not guilty” vote “may well have been motivated solely by what he thought would be an unjust punishment.” His role, the judge said, “was to determine guilt or lack thereof…. [N]o more and no less.”
Other jurors said they told Kaminsky that “the penalty is not our thing,” Judge Doyne noted in his decision. “We’re supposed to just talk about the facts of the case and decide whether he’s guilty or not guilty of the charges that were filed.”
Some of Kaminsky's fellow jurors scolded him, telling him “you’ve got to get [the question of punishment] out of your mind,” it said.
“It is clear, then, the other members of the jury understood clearly their duty to base their decision solely on what was presented to them during the trial, without resort to outside research and without regard to additional considerations,” Doyne concluded.
The court system specifically determines what information “may and may not be considered by a jury,” Doyne wrote. That means “competent evidence, which is reliable, relevant, and not unduly prejudicial,” vetted by a judge and the attorneys for both sides. This helps to weed out “incompetent or irrelevant information,” he said.
After all: A defendant’s liberty hangs in the balance,.
Doyne expressed concern over the phenomenon of juries conducting Internet research, citing the cases of jurors in England who were imprisoned for misconduct, and a Florida juror who tried to “friend” a defendant on Facebook. He also referred to a New York judge who requires jurors to sign an agreement not to do any online research.
For his part, Kaminsky didn’t contest the allegations but said “already knew of the possible punishment as a result of attending drug education classes at his children’s schools and merely conducted the research to confirm what he already knew,” Doyne wrote.
Kaminsky also said he didn’t believe he was violating any instruction, because his research “did not involve Montas or the facts of the case itself,” the judge added. Kaminsky also said the potential penalties didn’t influence his vote, and that “his discussion with his fellow jurors was intended to remind them of ‘their solemn duty.’ ”
He nonetheless violated a judicial order, Doyne said, noting that the trial judge's instructions “were more than sufficient to put Kaminsky on notice [that] his research was prohibited.”
“Our system of justice cannot function if a juror’s distrust of, or lack of confidence in, the court legitimized his disobedience of its orders or if a judge’s instructions were deemed merely ‘advisory,’ with jurors free to violate them when they saw fit, even if in good conscience,” Doyne emphasized. “Jurors are not at liberty to disregard the court’s instructions, even when they fear obedience would somehow result in injustice.”
The maximum penalty for a criminal contempt conviction in New Jersey is six months in prison, a $1,000 fine or both. However, Doyne noted that Kaminsky, a father of three, recently lost his job. What’s more, the judge said, the purpose of his finding is to deter others from doing the same thing – not primarily to punish Kaminsky.
For Doyne, a fine of $500 “strikes the correct balance of appropriate consideration of attendant circumstances, on the one hand, and, on the other, the vindication of the court’s interest in ensuring compliance with its orders and, it is hoped, placing the public on notice the consequences of juror misconduct are real.”
The contempt finding “is a formal declaration Kaminsky willfully and knowingly disobeyed the court’s order,” he added. “It is not a pronouncement Kaminsky is evil or even had malevolent intentions when he made the decision to discourage the reoccurrence of juror misconduct, whether by the conducting of independent research or any other means.”
Doyne said he “understands instant access to seemingly endless amounts of information is a reality of today’s world. And this fact, by and large, should be celebrated.
“That being said, this court rejects the notion the American courtroom, with its constraints and controls developed over the centuries, with its methodical and deliberate means of proceeding, is somehow incompatible with or outdated in today’s world of high-speed information on demand. Indeed, the proliferation of electronic information renders the sterilized atmosphere of a courtroom even more important.
“Conversely, the court remains confident American jurors, and more specifically New Jersey’s jurors, possess sufficient discipline, patience, and sense of civic duty to obey a court’s order to refrain from researching a case on their own. With today’s decision, jurors should be aware the American court system, as well as their own liberty, depend on their ability not to betray that confidence.”
Judge Doyne also recommended that the New Jersey Supreme Court Committee on Model Criminal Jury Charges be revised. To better communicate the importance of obedience to the court’s instructions, it may be appropriate to further explain reasons for the prohibition on juror research and, even, possible punishments for disobedience,” said Judge Doyne.
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