Can You Date a Juror?
While the rules vary from court to court, jury selection is nearly always a high stakes process that requires counsel to do a lot of things at the same time. The most critical goal is to identify and eliminate potential jurors who might derail a favorable verdict, either because they’re biased or simply insane. But beyond culling the crazies, good lawyers are also seeking to get to know the jurors who are selected and try to build a rapport with them quickly.
Sometimes this looks a bit like speed dating and if you are particularly successful, you may catch a juror or two smiling in your direction when they enter the courtroom. But even if this makes you feel like the most charming person alive, surely it can’t go any further than that? Obviously, jurors aren’t actually allowed to date people participating in a trial? Right?
As is often the case with respect to juror misconduct rules, the seemingly obvious answer is somewhat more complicated in practice. While at least one court has thrown out a verdict due to a juror treating trial like the world’s strangest matchmaking service, there are also decisions that appear to hint – if not outright state – that a little pairing off is tolerated.
New York’s Appellate Division reached the former result in People v. McGregor. [1] The defendant there was a gang member charged with various shootings, assaults, and related offenses stemming out of a turf war between rival gangs. After a six-week trial involving testimony from cooperating witnesses, the defendant was convicted on counts arising out of one gangland skirmish and acquitted on the others.
Prior to sentencing, the prosecution got wind that something odd had been going on during the trial between one of its cooperators and a juror. As the Appellate Division put it:
The prosecutor determined that, on June 26, 2017, the juror sent a letter to the witness in jail. The juror stated that she was a juror in defendant's case, that she “fe[lt] for” the witness, that “seeing [him] and hearing [him] up there on the stand made [her] feel some type of way,” and that she would like to write or speak to him, and included her phone number.
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Juror No. 6 testified that she was inspired to write to the witness because she “felt bad for someone who really did try to change their life and then their history caught up” and “obviously there was a physical attraction.” The juror further testified that she was aware that she was not supposed to “reach out to anybody that is in the trial,” but “wasn't even thinking about any of that at that moment” because she was “just being a human being making a mistake.”
The cooperator further confirmed that he now (after the trial) spoke to the juror 3-4 times per day. Indeed, the juror subsequently sought permission to marry the (incarcerated) cooperating witness.
The trial court, while characterizing the juror’s conduct as “unwise,” refused to order a new trial, on the grounds that the defendant’s guilt was overwhelming. The New York Appellate Division reversed, holding:
Here, there was both actual and implied bias. The misconduct by juror No. 6 was willful and blatant—the juror was admittedly attracted to the witness, a cooperating witness testifying on behalf of the People, and sought to develop a relationship with him while jury deliberations were still underway—even though she knew this was not permitted. The juror knew during deliberations that the witness had tried to call her back, suggesting that the interest was mutual, and the juror is now in a very serious relationship with the witness and seeks to marry him. Although the juror denied that her feelings about the witness affected her thinking about defendant, she was at least arguably more likely to credit his testimony and could subconsciously have sought to aid the side with which the witness was aligned.
Consequently, the defendant was given a new trial.
But a very different result was reached on somewhat similar facts in Payne v. McGrath. [2] While it’s not uncommon for attorneys to try to ask jurors a few questions after they’ve been discharged, the California prosecutors in that case took it to a new level. As the Court of Appeals for the Ninth Circuit put it:
The jurors and the prosecution team lunched and drank alcohol together following the verdict. At the lunch, one of the jurors commenced a romantic relationship with the lead detective, who was a key prosecution witness. The trial judge ordered the prosecutor, who was a percipient witness, to submit an affidavit disclosing how he came to know of the relationship. But the prosecutor failed to do so until four years had passed and the trial judge had lost jurisdiction of the case. When confronted with the allegation of potential juror bias, the trial judge prohibited defense counsel from contacting the jurors, although the jurors had obviously been in close post-trial contact with the prosecution team.
On some level this seems a lot worse than the misconduct described in McGregor. We expect a level of ethical scruples from prosecutors and police detectives that we don’t necessarily demand of cooperating witnesses. And between the judge’s instruction to the defense and the delays from the government, there was certainly an appearance of impropriety. But the Court of Appeals received the case on habeas review, and those motions aren’t often granted:
[S]hortly after learning of the post-verdict social relationship between the state's detective and one of the jurors, the trial court judge investigated the possibility of juror bias by holding a hearing to question both the detective and the juror about their relationship.
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The state court found that the relationship commenced after the verdict. Considering this lack of pre-trial contact, it cannot be said that the trial court's failure to imply bias or investigate implied bias was contrary to, or an unreasonable application of, Supreme Court precedent. Petitioners suggest that if the juror had formed an attraction for the lead detective during trial, we should conclude that the juror was impliedly biased. However, there is no support in Supreme Court jurisprudence for such a holding, and there is no factual basis in the record to support a finding of implied bias.
As is often the case on habeas review, the appeals court tut-tutted sternly about the “disturbing” conduct by the prosecutors, but nevertheless allowed the conviction to stand. While I would never suggest that it’s permissible to take jurors out for drinks and use the occasion to ask one of them out on a date after trial, you will need to look elsewhere for legal authority penalizing the practice.
What if the jurors are dating each other? We always ask jurors if they know other members of the pool, but is it actually prohibited to put a husband and wife or a boyfriend and girlfriend on the same jury? And what if a relationship develops during trial?
In Sutton v. Commonwealth of Virginia, [3] the Virginia Court of Appeals reviewed a trial court’s refusal to strike one or both jurors who revealed in voir dire that they were living together and in a romantic relationship. Noting that “per se grounds for disqualification are generally disfavored in Virginia” and that “Virginia Courts have never instituted a per se rule disqualifying prospective jurors who have a close personal relationship with each other,” the appeals court upheld the lower court’s decision:
That the cohabitation of two jurors may present the possibility of bias or prejudice does not justify creation of the new per se rule appellant seeks. The mere fact that two people live together, whether in a platonic or romantic relationship, does not inherently compromise their ability to follow the trial court's instructions, refrain from discussing the case at home, or exercise their independent judgment during deliberations.
A similar result, but one which highlights precisely why juror relationships are problematic, was reached in Allen v. McDaniel. [4] In that case two jurors in a child sexual abuse case developed a romantic relationship during the trial. Following the conviction, one of the jurors came forward admitting that the relationship had influenced her vote:
The female juror testified that the fact that the [other juror] voted in a certain way influenced her vote. She voted in order to conclude the proceedings and “to go along” with [him]. Had she not been romantically involved with [the other juror], she would not have voted the way she did.
Despite the testimony, a federal district court denied habeas relief. Why? The Arizona equivalent of Rule 606 – juror testimony about deliberations is not admissible to impeach a verdict. Citing Tanner, which we’ve written about before, the court concluded that absent some external influence, the juror testimony could not be heard and that the verdict would stand.
So, what can we glean from these cases? Other than that some California prosecutors might take you out for drinks if you convict, the importance of voir dire for controlling who ends up on your jury. You obviously want to ferret out jurors with existing relationships that may influence their vote. But you also want to spot jurors whose poor judgment bay skew the verdict or waste a lot of your time. By all accounts, the prosecutors in McGregor did nothing wrong, and spent six weeks of their life putting on over 100 witnesses to send a violent gang member to jail. But they were ultimately forced to do it again because a lunatic juror thought that an imprisoned gang member was her Prince Charming. If you don’t ever want to find yourself in that position – and you shouldn’t – you should be quick to strike folks who will not treat the trial with the seriousness that it deserves.
[1] 179 A.D.3d 26 (1st Dep’t 2019).
[2] 460 Fed.Appx. 725 (9th Cir. 2011).
[3] 2024 WL 2819620 (Va. App. June 4, 2024).
[4] 2009 WL 2710197 (D. Ariz. Aug. 26, 2009).
