Can Jurors Sleep Through Trial?
We’ve written before about how much sleep you need during trial and how much of a trial a lawyer can sleep through without a reversal for ineffective assistance of counsel. While the standards vary – you need to stay awake more in Massachusetts state court than you do in the Southern District of New York – the general policy of all courts is that lawyers should be awake throughout the proceedings. And even absent appellate authority, most judges you encounter will not be shy about interrupting your nap should you doze off during some dull questioning by opposing counsel.
Because of this, I’ve rarely encountered lawyers out-and-out asleep while first chairing a trial. But there is a group of people who you are very likely to see nodding off in the courtroom as the hours stretch on. And that’s the jury. While you might go your whole career without lulling your adversary to sleep, any lawyer who tries cases regularly has encountered a juror “just resting their eyes” during testimony.
But how much can a juror sleep during trial? And what should you do when you see a member of the panel nodding off?
While there is no official naptime during trial, courts have treated juror slumber somewhat differently depending on when precisely the juror fell asleep. If you read the cases, much of the inquiry turns on whether it can be established that the juror missed a “significant” part of the trial, with courts bending over backwards to assume that they did not. What’s significant? Consider State v. Yamada [1] where the Hawaii Supreme Court reversed a lower court decision granting a new trial on the grounds the multiple jurors were sleeping during closing arguments.
During the Yamada defendant’s closing statement, the bailiff signaled to the judge that one of the jurors was asleep. The judge roused the jury and summations continued. During deliberations, the defendant moved for a mistrial, with counsel arguing that he’d seen three jurors asleep at various points in the summations. The judge initially denied the motion, and the jury returned with a conviction. Following the verdict, the judge questioned the three allegedly sleeping jurors about whether they’d nodded off. Two denied it, but a third admitted to passing out for – in his estimation – 15 seconds of the prosecution closing and roughly 20% of the defence closing. Faced with this admission, the court granted the motion for a mistrial.
On review, the Hawaii Supreme Court reversed, holding that closing arguments really aren’t that important anyway:
Generally, courts have held that “the mere falling asleep for a short time, by a juror, during the argument of counsel for the defendant in a criminal cause, does not of itself constitute a sufficient cause for a new trial.”
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Moreover, the prosecution argues that there is nothing to suggest that Saka did not hear the instructions given prior to the parties' closing arguments, which included an explanation of the reasonable doubt standard… Even if Saka was sleeping and did not hear a portion of defense counsel's closing arguments, he was given the correct instruction, and we presume he followed it. [2]
What about jurors sleeping during testimony? A somewhat different result was reached in Commonwealth v. Braun. [3]There a defendant charged with distribution of cocaine complained that a juror was asleep during “most, if not all of the testimony, and certainly some of the court’s instructions.” The judge agreed that the juror “did have that appearance at times,” though he claimed not to be sure if the juror was totally unconscious. After holding forth in typical judge fashion about how “based on his experience” it can be hard to tell if people are sleep, the judge allowed the trial to continue with no further inquiry on the matter.
The defendant was convicted and on appeal that Appellate Division ordered a new trial:
We do not expect a trial judge to be omniscient, but when the judge is alerted to a significant problem of juror attentiveness, he is required to address the problem…
In this case, we conclude that the judge abused his discretion by failing to conduct a voir dire where there was a very real basis for concluding that the juror was sleeping during testimony and the judge's instructions, thereby calling into question that juror's ability to fulfil her oath to try the issues according to the evidence. Contemporaneous observations from three separate sources—a court officer, defense counsel, and the judge himself—alerted the judge to the very real likelihood that the juror was sleeping through the trial and the judge's instructions to the jury upon departure for the day… That the judge was not certain whether the juror was sleeping and was unwilling to make such a finding should not have ended the inquiry. Uncertainty that a juror is asleep is not the equivalent of a finding that the juror is awake, or has a “sour face.” Nor was the judge's general experience with jurors a sufficient reason not to have conducted a voir dire…
By not conducting a voir dire, the judge prevented himself from obtaining the information necessary to a proper exercise of discretion. [4]
An even more extreme example occurred in State v. Majid. [5] There, a defendant on trial for murder and facing the death penalty repeatedly complained to the judge that a juror was asleep. The judge acknowledged the issue, noted that the juror was “snoring” with “his mouth agape” but washed her hands of the situation, remarking on the record:
I saw it. So what? Let him sleep. You guys picked the jury. I didn’t.
The Ohio Court of Appeals had a somewhat different perspective on the role of a judge, calling the juror’s behavior “pervasive misconduct” and the judge’s decision “plain error.” Accordingly, it ordered a new trial.
So, what can you do when a juror is nodding off? It can be a difficult decision. Some lawyers recommend against doing anything. [6] Their theory is fundamentally two fold. First, waking a juror may embarrass them and potentially turn them against you. “Never wake a sleeping baby or a sleeping juror” as the expression goes. Second, they reason that a juror who sleeps during trial is likely to be unengaged during deliberations as well. If the juror is going to be a blank in the juror room, he or she may as well be asleep in the courtroom.
This may sometimes be correct, but like a lot of folk wisdom, it can lead you astray. If you’ve watched a lot of juror focus groups, you may have noticed that folks can be very active and opinionated during deliberations even if they clearly were not paying close attention during the presentations. So, there’s no guarantee that your sleeping juror isn’t going to wake up and decide that you “didn’t prove your case.” There are also ways of waking jurors that are more subtle than a tap on the shoulder. For example, some judges will invite the panel to stand and take a stretch break when it looks like a juror is asleep, allowing them to plausibly appear to have just been resting their eyes.
Your actions also depend on your evaluation of the juror and their response to the case so far. If the juror is clearly on your side and napping only during the bad guy’s presentation, they may need their rest. On the other hand, if the juror hasn’t been won over by your arguments yet, it would be an affront to the dignity of the process for them not to pay close attention when it is your turn to speak.
What about moving for a mistrial? These are rare as hen’s teeth on the civil side, but do occasionally happen in criminal cases where a juror is found to have slept. The key here is establishing a record that the juror missed key witness testimony and/or the court’s instructions. Judges will sometimes try to paper over the issue by claiming that the juror “seemed alert” to them. So, it’s important to specifically ask the court to voir dire the juror on the issue, and to follow up with requests that the juror be dismissed and/or the case declared a mistrial. Having multiple individuals state on the record that they observed the juror sleeping can also help to rebut an “I didn’t see it” from the bench that sometimes derails the issue on appeal.
Obviously best practice is to keep your trial presentation engaging and hold the jury’s attention at all times. But sleeping jurors are an occupational hazard that every trial lawyer has to deal with during long days in court.
[1] 122 P.3d 254 (Hawaii 2005).
[2] Id. at 259–60.
[3] 905 N.E.2d 124 (Mass. App. 2009).
[4] Id. at 126-27.
[5] 914 N.E.2d 1113 (Ohio App. 2009).
[6] See, e.g., William Haltom, Ladies and Gentlemen of the Jury, Please Wake Up! It's Happy Hour! https://www.tba.org/?pg=Articles&blAction=showEntry&blogEntry=9225
