Juror misconduct. New trial ordered for Somali Bantu immigrant convicted of sexual assault on a child, because a juror might have been influenced by information about Somali culture he found on the Internet.

State v. Abdi, 2012 VT 4 (Johnson, J.)


Following a jury trial, defendant—a Somali Bantu immigrant to Vermont—was convicted of one count of aggravated sexual assault on a child. He moved for a new trial based, in part, on a claim of jury misconduct resulting from a juror’s acquisition of information on the internet concerning Somali culture, a subject that played a significant role at trial. The trial court held a hearing, questioned the jurors, and issued a written decision denying the motion. The court concluded that although the extraneous information had the capacity to affect the jury’s verdict, it was harmless. We conclude otherwise, and therefore reverse the judgment and remand for a new trial.


We have evolved a “two-part inquiry” in cases of claimed exposure to “extraneous prejudicial information.”  A defendant alleging extraneous influence must first demonstrate that an irregularity occurred and that it had the capacity to affect the jury’s result. Once this is shown, the State must demonstrate beyond a reasonable doubt that the irregularity did not in fact prejudice the jurors against defendant.


Jurors may testify to the factual circumstances surrounding their exposure to extraneous information, but not to whether the information influenced their verdict.  Rule 606(b) permits a juror to testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention, whether any outside influence was improperly brought to bear upon any juror, and whether any juror discussed matters pertaining to the trial with persons other than his fellow jurors. 


Accordingly,  because of Rule 606(b), the inquiry is strictly objective in nature, looking to the totality of the surrounding facts and circumstances to determine whether the extraneous information acquired by the jury had the capacity to influence the verdict, and, if so, whether we may nevertheless confidently conclude that it could not have prejudiced the result.


The the State does not challenge on appeal the trial court’s findings that an irregularity in the form of the unidentified juror’s internet “research” on Somali religion and culture was brought up by the juror during deliberations. The question in this case resolves to whether the trial court correctly concluded that the State had met its heavy burden of proving the information was not prejudicial.


The record demonstrates that Somali Bantu religion and culture lay at the heart of this case, and it is simply impossible to conclude that outside information used by at least one juror—as the trial court found—to “interpret the testimony of the Somali witnesses and to determine the credibility of these witnesses” could have had no impact on the verdict. Whatever the merits of the trial court’s finding that the evidence of guilt “was strong,” it cannot be separated from the fact that the verdict turned exclusively on the jury’s credibility assessment of the testimony at trial. Accordingly, we conclude that the judgment must be reversed, and the matter remanded for a new trial before an impartial jury.

Ex parte Internet search by Judge prohibited.

Rutanhira v. Rutanhira, 2011 VT 113 (Skoglund, J.)


Father appeals an order awarding mother primary legal rights and responsibilities for the parties’ daughter based on the court’s conclusion that father exercised poor judgment in desiring to take his daughter to his birth country, Zimbabwe. The trip, planned for the summer of 2010, coincided with the World Cup in South Africa. Mother objected. She viewed the trip to Zimbabwe as far too dangerous for daughter. Though father wanted daughter to know her heritage, he ultimately acquiesced to mother’s wishes. Nevertheless, this was the issue upon which the family court based its award of legal custody to mother. The court reasoned that “[t]aking the child to an unstable place . . . would not be a wise idea” On appeal, father contends that the trial court abused its discretion by considering evidence outside of the proceeding, specifically a post-hearing internet search about Zimbabwe. We agree that the trial court erred in relying on evidence gathered outside the proceeding, which father did not have an opportunity to contest, and we reverse and remand for the family court to rehear this matter.


There are two concerns about judicial Internet searches. Reliability and permanence of information are constant concerns with Internet-based resources. See D. Tennant & L. Seal, Judicial Ethics & the Internet: May Judges Search the Internet in Evaluating & Deciding a Case?, 16 Prof. Law. 2, 14-16 (2005). In its decision, the court referred to a “sampling” of information the court had viewed on the Internet. This was not necessarily a source Father relied upon in 2009 when making his decision. We cannot determine whether the “sampling” of information the court obtained from these sites was exhaustive or selective. It is impossible for us to review the record given the dynamic nature of information on the Internet and the necessarily time-bound query that produced such articles. The articles examined by the court, as far as we know, spanned several years and are from sources whose record for accuracy is unknown.


Second, is the lack of notice and opportunity to be heard. A court cannot undertake an Internet search after the submission of a case on an issue material to that case and rely on information or evidence not properly introduced. In doing so, a court denies parties the opportunity to address the information and confront potentially harmful evidence. Even in the context of judicial notice, our Rules of Evidence demand that the parties receive “an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed.” V.R.E. 201(e). Other appellate courts have reached a similar conclusion when reviewing a trial court’s reliance on Internet searches undertaken after the close of the hearing. Here, the trial court conducted its own investigation, using this further investigation to determine the outcome of the case. Neither party could reasonably expect such additional fact-finding. Neither had an opportunity to test any of the evidence acquired through this investigation. It was error for the court to rely on this evidence.