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1 PJI 3 | Third Circuit (US)
HB-PJI-CA03-01S0300 Download


Now, a few words about your conduct as jurors.

First, I instruct you that during the trial and until you have heard all of the evidence and retired to the jury room to deliberate, you are not to discuss the case with anyone, not even among yourselves. If anyone should try to talk to you about the case, including a fellow juror, bring it to my attention promptly. There are good reasons for this ban on discussions, the most important being the need for you to keep an open mind throughout the presentation of evidence. I know that many of you use cell phones, smart phones [like Blackberries and iPhones], and other portable electronic devices; laptops, netbooks, and other computers both portable and fixed; and other tools of technology, to access the internet and to communicate with others. You also must not talk to anyone about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate orally with anyone about the case on your cell phone, smart phone, or portable or fixed computer or device of any kind; or use these devices to communicate electronically by messages or postings of any kind including e-mail, instant messages, text messages, text or instant messaging services [such as Twitter], or through any blog, website, internet chat room, or by way of any other social networking websites or services [including Facebook, MySpace, LinkedIn, and YouTube].

If any lawyer, party, or witness does not speak to you when you pass in the hall, ride the elevator, or the like, remember it is because they are not supposed to talk or visit with you, either. [That is why you are asked to wear your juror tags. It shows that you are someone who is not to be approached in any way.]

Second, do not read or listen to anything related to this case that is not admitted into evidence. By that I mean, if there is a newspaper article or radio or television report relating to this case, do not read the article or watch or listen to the report. In addition, do not try to do any independent research or investigation on your own on matters relating to the case or this type of case. Do not do any research on the internet, for example. You are to decide the case upon the evidence presented at trial. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Please do not try to find out information from any source outside the confines of this courtroom.

Again, do not reach any conclusion on the claims [or defenses] until all of the evidence is in. Keep an open mind until you start your deliberations at the end of the case.

[Finally, if any member of the jury has a friend or family member who is in attendance at this public trial, that visitor must first register with my Clerk because special rules will govern their attendance. You may not discuss any aspect of this trial with the visitor, nor may you permit the visitor to discuss it with you.]

COMMENT This instruction is adapted from the pattern instruction used by United States District Courts in Delaware. For variations on this instruction, see First Circuit (Criminal) 1.07; Eighth Circuit 1.05; Ninth Circuit 1.12. See also Montana 1.4 (concluding the instruction with a warning that “[f]ailure to observe these precautions might require the retrial of this case, which would result in a long delay, considerable expense to the courts and the parties and a waste of your time and effort.”). Portions of the instruction are drawn from Proposed Model Jury Instructions on the Use of Electronic Technology to Conduct Research on or Communicate about a Case, prepared by the Judicial Conference Committee on Court Administration and Case Management (CACM) in December 2009. See United States v. Fumo, 655 F.3d 288, 305 (3d Cir. 2011) (“We enthusiastically endorse [the CACM] instructions and strongly encourage district courts to routinely incorporate them or similar language into their own instructions.”). CACM released an updated version of the model instructions in June 2012 (the updated model is available at http://news.uscourts.gov/revised-jury-instructionshope-deter-juror-use-social-media-during-trial). Obviously, the relevant technologies will evolve over time; users of these instructions should insert a list of current examples in the appropriate place in the instructions.

The court should give this instruction on jury conduct after the jurors are sworn and before opening statements. Depending on the circumstances, it may be useful to give this instruction, or some part of it, during the trial as well. See Wright & Miller, Federal Practice and Procedure § 486 (suggesting that there may be occasion during the trial and at the close of the evidence to remind the jury about how it should conduct itself).

The Committee considered whether to delete the instruction that jurors are not to talk among themselves about the case until deliberations. The Committee notes that Arizona permits pre-deliberation discussions among jurors. But the Third Circuit has declared as follows:
“It is fundamental that every litigant who is entitled to trial by jury is entitled to an impartial jury, free to the furthest extent practicable from extraneous influences that may subvert the fact-finding process.” Waldorf v. Shuta, 3 F.3d 705, 709 (3d Cir. 1993). Partly to ensure that this right is upheld, “it [has been] a generally accepted principle of trial administration that jurors must not engage in discussions of a case before they have heard both the evidence and the court’s legal instructions and have begun formally deliberating as a collective body.” [United States v.] Resko, 3 F.3d [684] at 688 [(3d Cir. 1993)].
United States v. Bertoli, 40 F.3d 1384, 1393 (3d Cir. 1994).

Premature deliberations present a number of concerns, the most important being that jurors who discuss the case among themselves may harden their positions before all of the evidence is presented and the jury is instructed. Moreover, “[o]nce a juror has expressed views on a particular issue, that juror has a ‘stake’ in the expressed views and may give undue weight to additional evidence that supports, rather than undercuts, his or her view.” Id. The Committee therefore concluded that the court should instruct the jurors to refrain from discussing the case among themselves before deliberations.

(Last Updated October 2017)

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