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A juror's intentional nondisclosure of information was juror misconduct & led to a new trial: An examination of Larsen v. Union Pac. R.R. Co., 503 S.W.3d 213 (Mo. Ct. App. 2016)

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Nilgun Aykent Zahour and SM JUROR analyze the juror misconduct case of Larsen v. Union Pac. R.R. Co., 503 S.W.3d 213 (Mo. Ct. App. 2016), reh'g and/or transfer denied (Sept. 20, 2016), where a juror’s intentional nondisclosure of information, when specifically asked during voir dire, led to prejudice and a new trial. The case examines the difference between a juror's intentional and unintentional nondisclosure of information. #JurorMisconduct

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A juror's intentional nondisclosure of information was juror misconduct & led to a new trial: An examination of Larsen v. Union Pac. R.R. Co., 503 S.W.3d 213 (Mo. Ct. App. 2016)

  1. 1. SM JUROR presents our analysis of: Larsen v. Union Pac. R.R. Co., 503 S.W.3d 213 (Mo. Ct. App. 2016), reh'g and/or transfer denied (Sept. 20, 2016). A juror’s intentional nondisclosure of information, when specifically asked during voir dire, lead to prejudice and a new trial.
  2. 2. Larsen v. Union Pac. R.R. Co., 503 S.W.3d 213 (Mo. Ct. App. 2016), reh'g and/or transfer denied (Sept. 20, 2016).
  3. 3. Copyright 2017 – SM JUROR. All rights reserved. www.smjuror.com
  4. 4. This presentation is brought to you by Nilgün Aykent Zahour, Esq. Nilgün Aykent Zahour is the President and Founding Attorney of SM JUROR. With over twenty-eight years of litigation experience, her passion is to help attorneys identify, preserve and advance juror misconduct issues at trial and on appeal in this constantly evolving area of the law. Don’t let juror misconduct taint your verdict, especially when a juror uses social media or the internet. You can view Nilgün’s education and background on the SM JUROR website by clicking here and also click/view her LinkedIn profile. Click on her latest article “The Verdict is In: Juries, Misconduct and Social Media”. Because the only evidence you want the jury to consider … is in the courtroom. Use SM JUROR. LINKS ARE CLICKABLE ON PC DESKTOPS AND SOME MOBILE PHONES
  5. 5. Facts: Copyright 2017 - SM JUROR Larson, a union member and employee of Union Pacific, filed a claim against his employer when he fell off a ladder while working for Union Pacific. The trial court entered judgment in favor of the plaintiff for $3.2, but subsequently granted the defendant employer’s motion for new trial based on a juror’s nondisclosure during voir dire of the fact that he was a union member. During voir dire, counsel for the defendant specifically asked if any venireperson was a union member. Some people responded that they were union members and were questioned further, but LS, a person who was a union member and ultimately served on the jury, kept silent. Counsel for both parties also questioned the potential jurors about any biases prejudices or personal hardships that may lead them to be unfair, and LS again kept silent. Subsequent to the verdict, the attorney for Union Pacific discovered that LS was a union member and that he characterized himself as an informal leader of the jury and told the defendant’s jury researcher, Dr. David Giles, that he was “a union guy,” and that the plaintiff had his vote “right off.” Defendant moved for a new trial asserting it was prejudiced by LS’s nondisclosure of his union membership, when specifically asked about this during voir dire. After an evidentiary hearing, LS said he forgot he was a union member. The trial court granted the motion.
  6. 6. The abuse of discretion standard of review: “A trial court has great discretion in determining whether to grant a new trial. Its decision is presumed to be correct and will be reversed on appeal only for an abuse of discretion.” Larsen v. Union Pac. R.R. Co., 503 S.W.3d 213, 220 (Mo. Ct. App. 2016), reh'g and/or transfer denied (Sept. 20, 2016). Copyright 2017 - SM JUROR “An abuse of discretion occurs where the trial court's ruling is so arbitrary and unreasonable as to shock one's sense of justice and indicate a lack of careful consideration.” Id. “It cannot be said that the trial court abused its discretion where reasonable persons could differ over the propriety of its ruling.” Id. “Appellate courts should be more liberal in upholding a grant of a new trial than in awarding a new trial when the trial court denies the motion. However, the granting of a motion for a new trial can be an abuse of discretion where it is based on findings that are not substantially supported by the record.” Id.
  7. 7. Two Steps in the Evaluation of A Nondisclosure by a Juror: “Evaluation of a juror nondisclosure claim involves two steps.” Larsen v. Union Pac. R.R. Co., 503 S.W.3d 213, 221 (Mo. Ct. App. 2016), reh'g and/or transfer denied (Sept. 20, 2016). Copyright 2017 - SM JUROR “First, we review de novo whether the question posed was sufficiently clear. Id. If the question was insufficiently clear, then there has been no nondisclosure.” Id. “If clear, we then consider whether the nondisclosure was intentional.” Id.
  8. 8. When does an intentional nondisclosure by a juror occur? Copyright 2017 - SM JUROR “Intentional nondisclosure occurs if: 1) there exists no reasonable inability to comprehend the information solicited by the question asked of the prospective juror, and 2) the prospective juror actually remembers the experience or that it was of such significance that his purported forgetfulness is unreasonable.” Larsen v. Union Pac. R.R. Co., 503 S.W.3d 213, 221 (Mo. Ct. App. 2016), reh'g and/or transfer denied (Sept. 20, 2016). “The determination of whether the nondisclosure was intentional is reviewed for abuse of discretion.” Id.
  9. 9. Proving that the juror’s nondisclosure was intentional: Copyright 2017 - SM JUROR “[A] claimant seeking to prove intentional nondisclosure must establish that the venireperson is consciously aware of an objective fact and then fails to disclose that fact despite an unequivocal request to do so from the court or counsel.” Larsen v. Union Pac. R.R. Co., 503 S.W.3d 213, 222 (Mo. Ct. App. 2016), reh'g and/or transfer denied (Sept. 20, 2016).
  10. 10. Intentional versus unintentional nondisclosure by a juror: “The determination of whether the nondisclosure was intentional is reviewed for abuse of discretion.” Larsen v. Union Pac. R.R. Co., 503 S.W.3d 213, 221 (Mo. Ct. App. 2016), reh'g and/or transfer denied (Sept. 20, 2016). Copyright 2017 - SM JUROR “If the nondisclosure was intentional, prejudice is presumed; if the nondisclosure was unintentional, the party seeking a new trial must prove prejudice.” Id. We weigh the evidence in the light most favorable to the trial court's order.” Id. INTENTIONAL NONDISCLOSURE UNINTENTIONAL NONDISCLOSURE Prejudice is presumed Prejudice must be proven
  11. 11. The Evaluation of A Juror’s Nondisclosure At Voir Dire*: Copyright 2017 - SM JUROR STEP 1: Was the question posed by the attorneys or court sufficiently clear? NONondisclosure YES No Nondisclosure INTENTIONAL NONDISCLOSURE “[A] claimant seeking to prove intentional nondisclosure must establish that the venireperson is consciously aware of an objective fact and then fails to disclose that fact despite an unequivocal request to do so from the court or counsel.” Larsen v. Union Pac. R.R. Co., 503 S.W.3d 213, 222 (Mo. Ct. App. 2016), reh'g and/or transfer denied (Sept. 20, 2016). UNINTENTIONAL NONDISCLSOURE YES NO Prejudice is presumed Prejudice must be proven *Unless otherwise notes, information is from Larsen v. Union Pac. R.R. Co., 503 S.W.3d 213, 221 (Mo. Ct. App. 2016), reh'g and/or transfer denied (Sept. 20, 2016). STEP 2: Was the nondisclosure intentional?
  12. 12. Statements by jurors minimizing the effect of misconduct Copyright 2017 - SM JUROR “Statements of jurors minimizing the effect of misconduct are entitled to very little weight.” Larsen v. Union Pac. R.R. Co., 503 S.W.3d 213, 224 (Mo. Ct. App. 2016), reh'g and/or transfer denied (Sept. 20, 2016). “It was nothing, really …”
  13. 13. A juror or venireperson’s duty to answer questions truthfully: Copyright 2017 - SM JUROR “Venirepersons have a duty to answer all questions fully, fairly, and truthfully during voir dire. Failure to respond fully, fairly, and truthfully can deprive the parties of information needed to exercise peremptory challenges or challenges for cause to ensure an impartial jury is empaneled.” Larsen v. Union Pac. R.R. Co., 503 S.W.3d 213, 221 (Mo. Ct. App. 2016), reh'g and/or transfer denied (Sept. 20, 2016). “An unequivocal question triggers a venireperson's duty to disclose information. A venireperson's silence to an unequivocal question establishes juror nondisclosure, if the information is known to the juror.” Id.
  14. 14. Appellate courts defer to the trial court on credibility issues: Copyright 2017 - SM JUROR “Appellate courts defer on credibility determinations because the circuit court is in a better position to weigh the contested and conflicting evidence.” Larsen v. Union Pac. R.R. Co., 503 S.W.3d 213, 222 (Mo. Ct. App. 2016), reh'g and/or transfer denied (Sept. 20, 2016). “The circuit court is able to judge directly not only the demeanor of witnesses, but also their sincerity and character and other [ ] intangibles that the record may not completely reveal.” Id.
  15. 15. Holding: Copyright 2017 - SM JUROR The record establishes that counsel specifically asked the jury venire if anyone was a union member and LS deliberately kept silent. At the evidentiary hearing, the trial court assessed the credibility of LS and Dr. Giles and found LS’s testimony, that he forgot he was a union member, lacked credibility, especially since Dr. Giles testified how LS volunteered he was “a union guy” and that plaintiff has his “vote right off.” Due to LS’s intentional nondisclosure of his union membership, Union Pacific was presumed to be prejudiced and Larson did not rebut this presumption. The appellate court affirmed the granting of the motion for new trial, finding that the circuit court did not abuse its discretion in granting it.
  16. 16. Like what you see? Want more? to sign up for our free SM JUROR newsletter, filled with information about new juror misconduct cases, short webinars, or other helpful resources to help you identify, preserve and advance juror misconduct cases at trial and on appeal. Click here This is a clickable link Links are clickable on PC desktops and some mobile phones
  17. 17. We want to connect with you. Connect with SM JUROR by clicking on your favorite social media networks below: The phones above are clickable links on PC desktops and some mobile phones

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