United States District Court, N.D. California, San Jose Division
ORDER AFTER JURY TRIAL (DAY 2)
J. DAVILA UNITED STATES DISTRICT JUDGE
FOR MISTRIAL AND/OR ADJOURNMENT AND CONTINUANCE
the trial day concluded on April 4, 2018, Juror #1 informed
the Courtroom Deputy she had overheard information that could
be pertinent to her continued service as a juror. The court
and counsel questioned Juror #1 in-camera the next morning
about her exposure to this information. The court ultimately
determined Juror #1 should be excused.
#1 returned to the deliberation room with the other members
of the panel before she was notified of her release from
service. When the Courtroom Deputy entered the room, she
overheard a juror, other than Juror #1, use a distinctive
word raised during the in-camera conversation with Juror #1,
which had concluded minutes earlier. Outside of the
deliberation room, the Courtroom Deputy asked the juror why
she used the word. The juror told the Courtroom Deputy that
Juror #1 related information concerning the in-camera hearing
to the other members of the jury.
Courtroom Deputy notified the court, which held another
in-camera hearing, with counsel present, to determine exactly
what information Juror #1 provided to the jury. Each juror
and alternate juror was questioned separately. Though their
perceptions of the event differed slightly, they each stated
that Juror #1 did not did not divulge exactly what
information she heard. The jurors also indicated that Juror
#1's comments did not affect their ability to impartially
decide this case.
moved for a mistrial and/or adjournment and continuance at
the conclusion of juror questioning. The court denied the
motion on the record. This order details the basis for that
terms of motions for mistrial in both criminal and civil
cases, the Ninth Circuit distinguishes between circumstances
involving “extraneous” evidence and those
involving “ex parte” contacts. Sea Hawk
Seafoods, Inc. v. Alyeska Pipeline Serv. Co., 206 F.3d
900, 906 (9th Cir. 2000).
“extraneous” evidence cases, the jury receives
information pertaining to the case at bar, such as
“when papers bearing on the facts get into the jury
room without having been admitted as exhibits, or when a
juror looks things up in a dictionary or directory.”
Id. “Ex parte” contact cases, in
contrast, “generally do ‘not pertain to any fact
in controversy or any law applicable to the case.'”
United States v. Rosenthal, 454 F.3d 943, 949 (9th
ex parte communication is involved, the district court, upon
finding a reasonable possibility of prejudice, must hold a
fair hearing.” Id. But to obtain a new trial
based on an “ex parte” contact, a defendant must
demonstrate “actual prejudice.” United States
v. Madrid, 842 F.2d 1090, 1093 (9th Cir. 1988).
Juror #1's comments to her fellow jurors constituted an
“ex parte” contact because the contents did not
impart information pertaining to any fact in controversy or
any law applicable to this case. During the in-camera hearing
to determine if Juror #1's comments had any effect, the
other members of the jury indicated they could decide this
case impartially. Accordingly, the court concludes, as it
explained on the record, that Facebook would not suffer any
actual prejudice as a result of the incident involving Juror
not the direct genesis of the motion, Defendants have also
suggested that negative publicity concerning other conduct
not at issue in this case could render these proceedings
court notes, however, that aside from former Juror #1, there
is no evidence that any other juror was exposed to
problematic content outside of the trial. At this point,
Defendants have “merely urged” or presumed that
the jury must have been exposed to prejudicial information.
But “[t]he presumption is the other way.”
United States v. Eaglin, 571 F.2d 1069, 1084 (9th
Cir. 1977). “As Mr. Justice Holmes said in Holt v.
United States, 218 U.S. 245, at p. 251: ‘If the
mere opportunity for prejudice or corruption is to raise a
presumption that they exist, it will be hard to maintain jury
trial under the conditions of the present day.'”
Id. at 1084-85.
addition, jurors are presumed to follow the court's
instructions. Fields v. Brown, 503 F.3d 755, 782
(9th Cir. 2007). At the commencement of this case, the court
instructed the jury about what they can and cannot consider
as evidence. The jury has also been specifically instructed
that anything heard or seen outside of court is not evidence,
and that they should decide the case solely on the evidence
received at the trial. The court will remind the jury of this
instruction at regular intervals throughout the trial.
the court finds no basis to terminate or continue the trial
due unrelated publicity. Nor is a new trial warranted.
Accordingly, Facebook's Motion for ...