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trial judge is aware of the atmosphere
of the trial, the circumstances surrounding the incident, the manner in
which any objectionable statement was
made, and the possible effect on the
jury and the trial. 38
As the Arizona Supreme Court wrote,
“The judge sees the witnesses, hears the
testimony, and has a special perspective of
the relationship between the evidence and
the verdict which cannot be recreated by a
reviewing court from the printed record.”39
The Court continued, “The superior court
abuses its discretion when it misapplies the
law or bases its decision on incorrect legal
principles. Similarly, an abuse of discretion
also occurs when a discretionary finding of
fact is ‘not justified by, and clearly against,
reason and evidence.’” 40
In juror misconduct cases, the lawyer
must be aware that the reviewing court will
look at the “entire picture” to determine
whether a trial court abused its
discretion in ruling as it did when
potential juror misconduct was
brought to its attention. This means
that if the trial court did not necessar-
ily follow a lawyer’s suggestion as to
how to handle the issue, i.e., remove
a juror, the lawyer must demonstrate
that the trial court’s actions in follow-
ing another course demonstrated an
abuse of discretion based on all the cir-
cumstances. Therefore, at every turn, and
with every ruling, the lawyer must “lock-
in” the trial court’s ruling and rationale, and
demonstrate on the record why such a rul-
ing amounts to reversible error, so that the
trial court can entertain the possibility of an-
other remedy that the lawyer presents. On
appeal, the lawyer will argue that the failure
to follow that alternate remedy prejudicially
affected the verdict, such that his or her cli-
ent was entitled to a new trial based on juror
misconduct.
3. Focus on two key principles: (a) jurors are presumed to follow the court’s instructions and (b)
not every case of juror misconduct
will result in a new trial.
Always remember that jurors are presumed to follow the court’s instructions. 41
