The New Jersey Supreme Court has ruled that a sleeping juror did not warrant a new trial following the conviction of a defendant in an assault case. In State v. Mohammed, the defendant was involved in a physical altercation outside a bar in Asbury Park. At that time, the defendant’s brother and brother’s fiancé got into a fight. When the police arrived on scene, the defendant attempted to intervene. Despite being told by the police to back away, the defendant struck a responding officer. In turn, the defendant was indicted for third degree aggravated assault and resisting arrest.
During the course of defendant’s trial, it was noted that a juror was sleeping on two occasions. Initially, the prosecutor advised the court that a juror was sleeping during pretrial instructions. The trial judge did not repeat the preliminary instructions or conduct an inquiry as to whether the juror missed any portion of that instruction.
Again, following the final charge to the jury, defense counsel alerted the court that the same juror was sleeping. The trial judge concluded, based on his own observations, that while the juror closed his eyes on and off during trial, he seemed to be paying attention because he opened his eyes. The defense attorney did not request relief such as a curative instruction or dismissal of the juror. After two days of deliberations, the defendant was found guilty of simple assault.
Following the conviction, the trial court denied defendant’s motion for a new trial based, in part, on the juror sleeping. The Appellate Division affirmed. Ultimately, the New Jersey Supreme Court agreed to hear the appeal and consider what procedures should be followed when a juror is asleep/inattentive during a portion of a trial. The Supreme Court ruled that in examining a claim of juror inattentiveness, the court must determine whether a juror’s inattention was prejudicial to the defendant, and thus capable of producing an unjust result. According to the Supreme Court, when there are inattentive juror allegations, such as sleeping during a consequential part of trial, if the trial court concludes, based upon personal observations explained adequately on the record that the juror was alert, the inquiry ends. If the judge did not observe the juror’s attentiveness, the judge must conduct individual voir dire of the juror; if that voir dire leads to the conclusion of inattentiveness, the judge must take corrective action. The judge has broad discretion to determine the appropriate level of investigation and corrective action, such as replaying a tape recording or videotape, rereading a portion of the jury charge, or excusing the juror.
In the Mohammed matter, the Court noted that the trial judge, based on his observations, found that the juror had been attentive and no additional follow-up was necessary. The Court felt that the Judge’s observations were sufficient to establish that the juror was attentive during the trial and did not prevent the defendant from receiving a fair trial.
However, the Court disagreed with the Judge’s suggestion that by giving the juror a copy of his jury charge any deficiency in the oral instruction was cured. Specifically, the Court ruled that if it is found that a juror was inattentive/asleep during the jury charge, written instructions are not sufficient to cure the harm.
The impact of this decision is that the Supreme Court has set froth how situations involving an inattentive juror should be addressed. If the trial judge is made aware of an issue and based on personal observations finds the juror alert and attentive, the inquiry ends. If the judge has no personal observations to make such a determination, an individual voir dire should be conducted. If the juror is found to have been inattentive, the judge has broad discretion to enact a curative action. This can include replaying testimony, re-reading a jury charge and/or excusing the juror.