Today the Appeals Court again upheld a jury’s verdict despite evidence that one of the jurors “dozed off” during the trial. (See my 2023 post Appeals Court: Sleeping Juror Does Not Justify New Trial.)
Evidence of the sleepy juror was captured in the audio recording of a somewhat comical sidebar that took place among the judge, prosecutor, and defense counsels. The recording was as follows:
PROSECUTOR: “I just — maybe one of the jurors might have dozed off.”
THE COURT: “I did see that, yeah. Someone else gave him a little nudge.”
PROSECUTOR: “So I’m just a little bit (indiscernible; away from microphone at 3:15:55).” THE COURT: “Right. I don’t think he was –“
PROSECUTOR: “(Indiscernible; away from microphone at 3:15:58).”
THE COURT: “– napping for very long. But he did close his eyes. He’s the young kid with the glasses, sitting in–“
DEFENSE COUNSEL: “Yeah.”
THE COURT: “– the back row, who, you know, I forced to be a juror even though he had employment issues, and he worked last night. That’s probably what happened, right? You know, I mean, just surmising –“DEFENSE COUNSEL: “Certain age, yeah.”
THE COURT: “– what probably went on type of thing, but it wasn’t very long. One of the other jurors noticed and gave him a little elbow, so — thank you.”
PROSECUTOR: “Thank you.”
The judge took no action to address the problem and defense counsel made no objection.
The jury ultimately convicted the defendant on three felony charges.
The defendant appealed and the Appeals Court affirmed the conviction. Citing the surprisingly ample case law on sleeping jurors, the Appeals Court wrote,
Where a judge observes a sleeping juror, or where a judge becomes aware of reliable information indicating that a juror is asleep, the judge is required to act promptly to protect the rights of the defendant and the rights of the public. However, [j]udges have substantial discretion in this area, and not every instance of juror inattentiveness calls for a voir dire, Indeed, there may be circumstances where a judge receives reliable information that a juror is sleeping and properly exercises his or her discretion to intervene without conducting a voir dire. (Citations and quotations omitted.)
Given the judge’s “substantial discretion” and the fact that the juror dozed off for just a few moments, the Appeals Court refused to vacate the conviction.
The full text of the opinion is attached below.