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The Sleeping Juror in NJ Criminal Trials


by in Criminal Defense

No one looks forward to finding that dreaded jury duty notice in the mailbox. Jury duty, while perhaps the most important civic duty in our country, can be a long, sometimes boring experience. Unfortunately, there is a shocking number of criminal defendants in prison today whose jury’s simply could not stay awake during the trial.

A jury’s verdict in a criminal trial must be unanimous. As such, sometimes all a criminal defendant or his/her attorney needs to do to obtain an acquittal (not-guilty verdict) is to establish reasonable doubt in the mind of a single juror. Therefore, every moment in a criminal trial observed by a juror is critical, and a lost moment can mean a lost case for the defendant. Sadly, the law on this issue is not so clear cut.

Trial courts are required to ensure that sleeping or distracted jurors do not cause an unfair trial. See State v. Reevey, 159 N.J. Super. 130 (App. Div.), certif. denied, 79 N.J. 471 (1978). A juror who has not heard all the evidence in a case or the court’s instructions as to applicable principles of law is grossly unqualified to render a verdict. Am. Jur. 2d, Trial § 1618. The bulk of “juror-inattention” cases involve the purported sleeping or “dozing” of a juror during the trial proceedings. 59 A.L.R. 5th 1, 2a. The substantial majority of the cases have held that the sleeping of a juror during the course of a trial did not warrant a new trial or the reversal of an adverse judgment which had been rendered against the complaining party, though some courts, given the particular circumstances presented therein, have held to the contrary. Ibid.

Generally speaking, in order to demonstrate that prejudice resulted from such alleged juror misconduct as sleeping or “dozing,” a defendant must do more than vaguely assert that his or her case was harmed due to the inattentiveness. See, e.g., U.S. v. Tierney, 947 F.2d 854 (8th Cir. 1991; U.S. v. Resko, 3 F.3d 684 (3d Cir. 1993)(Stressing that although a mistrial may be appropriate when a defendant can demonstrate that jurors have slept during trial, the party claiming such error must affirmatively demonstrate that as a result of the lack of attention the juror failed to follow some important or essential part of the proceedings.) Generally, a hearing by the trial court regarding a juror’s purported inattentiveness due to, for example, sleeping or dozing is not an automatic right but must instead be requested by the complaining party. See, e.g., State v. Sapp, 1995 WL 491390 (Ohio Ct. App. 1995).

In State v. Reevey, supra, 159 N.J. Super. 130, defense counsel asked the court to dismiss a juror and replace her with an alternate after noticing she was sleeping. Id. at 133. The trial judge refused, stating that he had no such authority. Ibid. The Appellate Division reversed, holding that the trial judge had such authority which was in the trial judge’s discretion and remanded for a hearing as to whether the defendant had been denied his right to a fair trial. Id. at 134-35. The court also noted that such determinations must be made in light of the circumstances of each particular case. Ibid.

All too often, a defense attorney is so busy trying his or her case that they do not even realize that a jury may be dozing off. As such, it is vital to have a criminal defense attorney that understands the complexity of issues such as the notorious sleeping juror.






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