SC10-51 Appendix H - Florida State Supreme Court · APPENDIX H TABLE OF CONTENTS ... New York Times and Daily Business Review on the growing problem of ... R. Blaise Trettis, and

APPENDIX H TABLE OF CONTENTS

Subject Page Referral Letters from the Court…………………………………………….. 1 Civil Committee Subcommittee Action Report…………………………..... 3 Initial Proposals Considered by Committees Mark W. Bennett, U.S. District Court Judge, Northern District of Iowa …….………………..……………………………………….... 33 Dick Caldwell and Allan Campo Draft…………………….………. 37 Judge John Kest……………………………………………………. 39 Rodriguez (Civil) Draft…….………………………………………. 40 Judge Lucy Brown…………………………………………………. 43 Emails and Draft Instructions Considered at the October 2009 Meeting…. 47 Emails and Draft Instructions Following the October 2009 Meeting…… 176

APPENDIX H 1

APPENDIX H 2

JURY CONDUCT CIVIL SUBCOMMITTEE REPORT

October 7, 2009

At our July 2009 meeting, the civil committee discussed articles in the New York Times and Daily Business Review on the growing problem of jurors performing Internet research during a case. Many jurors have cell phones or laptops with Internet access, giving them the immediate ability to perform outside research. These electronic devices make it much easier for jurors to communicate with the outside world about the case. In addition, the electronic devices increase the risk of distracted jurors during trial. The committee formed the “jury misconduct” subcommittee to consider revising the instructions to address these issues. The subcommittee changed its name to “jury conduct” to frame this issue in the positive. Joseph Amos chairs the subcommittee, composed of Ralph Artigliere, Tyrie Boyer, Lucy Brown, Dick Caldwell, Allan Campo, Wendell Graham, Rebecca Mercier Vargas, and Alan Wagner.

On August 26, 2009, Justice Lewis wrote letters asking the civil and criminal instructions committees to consider “the problem of jurors engaging in electronic communications, research or the use of technology by jurors during a pending case.” Justice Lewis explained that the Michigan Supreme Court had recently approved a rule banning jurors from using electronic devices during trial and adopted a specific jury instruction on this issue. He asked the civil and criminal committees to “jointly propose a uniform approach along with uniform jury instructions to be used in all cases,” in a report filed by January 11, 2010.

Currently, this issue is addressed in preliminary instruction 1.1, which is given after voir dire is completed and jurors are sworn. The paragraph in instruction 1.1 titled “Consider Only the Evidence” tells jurors not to do any homework or investigation, including Internet research.

In addition, the civil committee has filed a report asking the Supreme Court to make a substantial, plain English revision to closing instruction 7.2 (renumbered instruction 700 in the reorganized book). That proposal remains pending in case number SC09-02. The pending amendment will add a paragraph directing jurors not to do any research about the case, including on the Internet. The pending amendment will also tell jurors not to communicate with others about the case during their deliberations. For

APPENDIX H 3

this reason, the subcommittee started with the language in the pending amendment and considered whether it needed additional revisions to address these issues.

The jury conduct subcommittee considered several articles discussing growing problems caused by jurors using electronic devices. These articles included: (1) an article written by Ralph Artigliere, Judge James Barton and Bill Hahn, Reining in Juror Misconduct: Practical Suggestions for Judges and Lawyers, which is scheduled for publication in the December issue of the Florida Bar Journal; (2) James A. Edwards, Jurors Who Tweet, Blog & Surf—Deciding and Discussing Your Case, a speech presented at a FLABOTA meeting; (3) several articles regarding mistrials around the country caused by jurors using the Internet or Twitter to communicate about the case or perform research about the case, published in the New York Times, the ABA Section on Litigation website, and the South Florida Business Journal; (4) articles in the Daily Business Review about a mistrial in Miami-Dade County caused by of a party’s corporate officers exchanging text messages about testimony while one was on the witness stand; and (5) an article in the Naples Daily News about a new trial ordered in a medical malpractice case after a juror read newspaper articles about the case.

Almost all of these articles expressed concern that the existing standard instructions do not do enough to tell jurors that they cannot perform independent Internet research. In addition, jurors around the country have used the Internet or cell phones to communicate with the outside world about their jury service. For example, jurors have caused problems by twittering about the trial and posting messages about the trial on social networking websites like Facebook or MySpace. Some jurors have even used social networking websites to describe the case and ask for advice on how to decide it.

The civil jury conduct subcommittee met several times by phone and by e-mail with a subcommittee of the criminal instructions committee (Bart Schneider, R. Blaise Trettis, and Frank J. Migliore, Jr.). The civil and criminal subcommittees agreed to work jointly on this project with the goal of drafting core language that can be used in both the civil and criminal instructions. A uniform approach is needed because jurors might be called to both a criminal and civil jury during the same week of jury service. In addition, judges in some circuits try both civil and criminal cases.

APPENDIX H 4

The joint subcommittee recommends that jurors should be instructed on this issue four separate times: (1) during the jury qualifications period, before jurors are sent to a courtroom; (2) in the courtroom, before voir dire begins; (3) after voir ends and the jury is sworn; and (4) during the closing instruction.

The joint subcommittee discussed at length whether our committees

have the authority to propose uniform language to be given to potential jurors during the qualifications stage. Information provided to jurors during the qualifications stage is not actually a jury “instruction.” Instead, this issue probably falls within the expertise of the Office of the State Courts Administrator or the Rules of Judicial Administration Committee.

Despite this, the joint subcommittee believes that it is important to tell

jurors from the outset what the rules will govern their use of electronic devices during their jury service. Most jurors have access to the Internet when they first arrive at the courthouse and are waiting to be called to a courtroom. Many courthouses provide waiting jurors with wireless Internet access and free-standing computers with Internet access. Also, many waiting jurors have their own phones or laptops with Internet access.

The joint subcommittee concluded that, at a minimum, our

committees should recommend that during the qualifications period, jurors be given standard language to address these issues. While the Court might ultimately refer this proposal to another committee, suggesting language will help speed the resolution of this issue.

The joint subcommittee considered the instructions used in several other states to address these issues: Michigan, California, Connecticut (criminal), and a proposed instruction from New York. In addition, the subcommittee considered an instruction drafted by Ninth Circuit Judge John Kest, which was printed in James A. Edwards’ FLABOTA speech. The subcommittee also considered: (1) a proposed instruction drafted by Dick Caldwell and Alan Campo, based on revisions to Judge Kest’s instruction; (2) a proposed instruction drafted by Judge Lucy Brown; and (3) draft revisions to the criminal preliminary instructions prepared by members of the criminal instructions committee.

The joint subcommittee then appointed a drafting subcommittee

(Vargas, Schneider, Artigliere, and Brown). The drafting group started with

APPENDIX H 5

the existing civil instructions and revised them to tell jurors: (1) not to research on the Internet about the case; and (2) not to use cell phones, electronic devices or the Internet to communicate about the case.

After the drafting subcommittee circulated proposed preliminary and closing instructions, some of the representatives from the criminal subcommittee expressed concern that the language was too lengthy. The joint subcommittee met by phone and made additional revisions to the draft instructions. Most of the other states that have considered this issue give jurors a detailed list of the types of prohibited activities. The majority of the joint subcommittee supported the proposed instructions submitted by the drafting subcommittee.

After this meeting, the members of the criminal instructions subcommittee circulated “long” and “short” versions of the draft instructions to the full criminal instructions committee. The full criminal committee overwhelmingly preferred the “longer” version of the instruction supported by the majority of the joint subcommittee.

Following this vote of the criminal instructions committee, the joint

subcommittee met again by phone and e-mail. The joint subcommittee made substantial revisions to the draft instructions. The following proposal reflects core language, which has been revised and agreed to by members of the joint subcommittee working on this issue.

We are fortunate that a member of the criminal instructions

subcommittee, Bart Schneider, has graciously agreed to attend our full committee meeting on Thursday, October 15, 2009. We will benefit from hearing his perspective on how these instructions will affect criminal trials. In addition, the next meeting of the full criminal instructions meeting will not be held until December 2009. Justice Lewis has requested our joint report by January 11, 2010. Having a representative from the criminal committee at our meeting will help to make sure that our committees are taking a consistent approach.

The following proposal is core language to be given in both criminal

and civil cases at four stages, followed by drafts showing the full context of the existing civil instructions with the revised language:

(1) jury qualifications period, before jurors are sent to a courtroom;

APPENDIX H 6

(2) during the preliminary instructions given in the courtroom,

before voir dire begins (currently instruction 1.0; reorganized book instruction 201.2);

(3) during the preliminary instructions given after voir ends and the

jury is sworn (currently instruction 1.1; reorganized book instruction 202.2); and

(4) during the closing instruction (currently instruction 7.2;

reorganized book instruction 700).

APPENDIX H 7

CORE INSTRUCTIONS TO BE GIVEN IN CRIMINAL AND CIVIL CASES ADDRESSING JURORS USING ELECTRONIC DEVICES (1) INSTRUCTION TO BE GIVEN DURING QUALIFICATION

OF POTENTIAL JURORS, BEFORE JURORS ARE SENT TO A SPECIFIC COURTROOM

Many of you have cell phones, computers, and other electronic

devices. Even though you have not yet been selected as a juror, there are some strict rules that you must follow about using your cell phones, electronic devices and computers. You must not use your cell phones or computers to search the Internet or to find out anything related to your service as a juror or any cases in the courthouse.

Between now and when you have been discharged from jury duty

by the judge, you must not provide or receive any information about your jury service to anyone, including friends, co-workers, and family members. You may tell those who need to know where you are that you have been called for jury duty. If you are picked for a jury, you may tell people that you have been picked for a jury and how long the case may take. However, you must not give anyone any information about the case itself or the people involved in the case. You must also warn people not to try to say anything to you or write to you about your jury service or the case. This includes face-to-face, phone or computer communications.

In this age of electronic communication, I want to stress that you

must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, about your jury service. You must not disclose your thoughts about your jury service or ask for advice on how to decide any case.

After you are called to the courtroom, the judge will give you

specific instructions about these matters. A judge will tell you when you are released from this instruction. All of us are depending on you to follow the law, so that there will be a fair and legal resolution of every case.

APPENDIX H 8

(2) PRELIMINARY INSTRUCTION (GIVEN BEFORE JURY

SWORN) You must not do any research or look up words, names, [maps], or

anything else that may have anything to do with this case. This includes reading newspapers, watching television or using a computer, cell phone, or any other electronic device to do research on the Internet to find out information related to this case or the people and places involved in this case, whether you are in the courthouse, at home, or anywhere else.

Just as important as not doing research related to this case, you

must not provide any information about this case to anyone, including friends and family members, until you have been discharged from jury duty by the judge. This includes talking face-to-face or on the phone. In this age of electronic communication, I want to stress that you must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, to or from anyone about this case or your jury service. You must not disclose your thoughts about this case over the Internet or ask for advice on how to decide this case. All of us are depending on you to follow the law, so that there will be a fair and legal resolution to this case. (3) PRELIMINARY INTRUCTION (GIVEN AFTER JURY

SWORN)

Consider Only the Evidence. It is the things you hear and see in this courtroom that matter in this trial. The law tells us that a juror can consider only the testimony and other evidence that all the other jurors have also heard and seen in the presence of the judge and the lawyers. Doing anything else is wrong and is against the law. That means that you must cannot do any homework or investigation of your own. You must cannot obtain on your own any information about the case or about anyone involved in the case, from any source whatsoever.,including the internet This includes reading newspapers, watching television or using a computer, cell phone, or any other

APPENDIX H 9

electronic device to do research on the Internet to find out information related to this case or the people and places involved in this case, whether you are in the courthouse, at home, or anywhere else. You must cannot visit places mentioned in the trial or use the Internet to look at maps or pictures to see any place discussed during trial.

The law also tells us that jurors must cannot have discussions of

any sort with friends or family members about the case or its subject. So, do not let even the closest family members make comments to you or ask questions about the trial. In this age of electronic communication, I want to stress that just as you must not talk about this case face-to-face, you must not talk about the case by using an electronic device. You must not use phones, computers or other electronic devices to communicate. Do not send or accept any messages, including e-mail or text messages, to or from anyone related to the case or your jury service. Do not discuss this case or ask for advice by posting information on an Internet website, chat room, blog or by any other means at all. Similarly, it is important that you avoid reading any newspaper accounts, or watching or listening to television or radio comments that have anything to do with this case or its subject. (4) CLOSING INSTRUCTION

You will have in the jury room all of the evidence that was received during the trial. In reaching your decision, do not do any research on your own or as a group. Do not use dictionaries, the Internet, or any other reference materials. Do not investigate the case or conduct any experiments. Do not contact anyone to assist you, such as a family accountant, doctor, or lawyer. Do not visit or view the scene of any event involved in this case or look at maps or pictures on the Internet. If you happen to pass by the scene, do not stop or investigate. All jurors must see or hear the same evidence at the same time. Do not read, listen to, or watch any news accounts of this trial.

You are reminded that during your deliberations, you are not to

communicate with any person outside the jury about this case. This means that during your deliberations and during your breaks, you must not talk about this case in person or through the telephone, writing, or electronic communication, such as a blog, twitter, e-mail, text message, or any other means. Do not contact anyone to assist you.

APPENDIX H 10

This requirement applies until I discharge you at the end of the case. If you become aware of any violation of these instructions or any other instruction I have given in this case, you must tell me by giving a note to the bailiff.

APPENDIX H 11

PROPOSED REVISIONS TO THE CIVIL PRELIMINARY INSTRUCTIONS

REGARDING JURORS USING OF ELECTRONIC DEVICES

CIVIL INSTRUCTION 1.0

PRELIMINARY INSTRUCTION [Prior to Voir Dire]

Welcome. [I] [The clerk] will now administer your oath.

Now that you have been sworn, I’d like to give you an idea about

what we are here to do.

What is this proceeding?

This is a civil trial. A civil trial is different from a criminal case, where a defendant is charged by the state prosecutor with committing a crime. The subject of a civil trial is a disagreement between people or companies [or others, as appropriate], where the claims of one or more of these parties has been brought to court to be resolved. It is called “a trial of a lawsuit.”

(Insert brief description of claim(s) brought to trial in this case)

Who are the people here and what do they do?

Judge/Court: I am the Judge. You may hear people occasionally refer to me as “The Court.” That is the formal name for my role. My job is to maintain order and decide how to apply the rules of the law to the trial. I will also explain various rules to you that you will need to know in order to do your job as the jury. It is my job to remain neutral on the issues of this lawsuit.

Attorneys: The attorneys to whom I will introduce you have the job

of representing their clients. That is, they speak for their client here at the trial. They have taken oaths as attorneys to do their best and to follow the rules for their profession.

Plaintiff’s Counsel: The attorney on this side of the courtroom,

(introduce by name), represents (client name) and is the person who filed the lawsuit here at the courthouse. [His] [Her] job is to present [his] [her] client’s side of things to you. [He] [She] and [his] [her] client will be referred to most of the time as “the plaintiff.”

APPENDIX H 12

Defendant’s Counsel: The attorney on this side of the courtroom, (introduce by name), represents (client name), the one who has been sued. [His] [Her] job is to present [his] [her] client’s side of things to you. [He] [She] and [his] [her] client will usually be referred to here as “the defendant.”

Court Clerk: This person sitting in front of me, (name), is the court

clerk. [He] [She] is here to assist me with some of the mechanics of the trial process, including the numbering and collection of the exhibits that are introduced in the course of the trial.

Court Reporter: The person sitting at the stenographic machine,

(name), is the court reporter. [His] [Her] job is to keep an accurate legal record of everything we say and do during this trial.

Bailiff: The person over there, (name), is the bailiff. [His] [Her] job

is to maintain order and security in the courtroom. The bailiff is also my representative to the jury. Anything you need or any problems that come up for you during the course of the trial should be brought to [him] [her]. However, the bailiff cannot answer any of your questions about the case. Only I can do that.

Jury: Last, but not least, is the jury, which we will begin to select in

a few moments from among all of you. The jury’s job will be to decide what the facts are and what the facts mean. Jurors should be as neutral as possible at this point and have no fixed opinion about the lawsuit. At the end of the trial the jury will give me a written verdict. A verdict is simply the jury’s answer to my questions about the case.

You must not do any research or look up words, names, [maps], or



must not provide any information about this case to anyone, including friends and family members, until you have been discharged from jury

APPENDIX H 13

duty by the judge. This includes talking face-to-face or on the phone. In this age of electronic communication, I want to stress that you must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, to or from anyone about this case or your jury service. You must not disclose your thoughts about this case over the Internet or ask for advice on how to decide this case. All of us are depending on you to follow the law, so that there will be a fair and legal resolution to this case.

Voir Dire:

The last thing I want to do, before we begin to select the jury, is to explain to you how the selection process works.

Questions/Challenges. This is the part of the case where the parties

and their lawyers have the opportunity to get to know a little bit about you, in order to help them come to their own conclusions about your ability to be fair and impartial, so they can decide who they think should be the jurors in this case.

How we go about that is as follows: First, I’ll ask some general

questions of you. Then, each of the lawyers will have more specific questions that they will ask of you. After they have asked all of their questions, I will meet with them and they will tell me their choices for jurors. Each side can ask that I exclude a person from serving on a jury if they can give me a reason to believe that he or she might be unable to be fair and impartial. That is what is called a challenge for cause. The lawyers also have a certain number of what are called peremptory challenges, by which they may exclude a person from the jury without giving a reason. By this process of elimination, the remaining persons are selected as the jury. It may take more than one conference among the parties, their attorneys, and me before the final selections are made.

Purpose of Questioning. The questions that you will be asked during

this process are not intended to embarrass you or unnecessarily pry into your personal affairs, but it is important that the parties and their attorneys know enough about you to make this important decision. If a question is asked that you would prefer not to answer in front of the whole courtroom, just let me know and you can come up here and give your answer just in front of the attorneys and me. If you have a question of either the attorneys or me, don’t hesitate to let me know.

APPENDIX H 14

Response to Questioning. There are no right or wrong answers to the questions that will be asked of you. The only thing that I ask is that you answer the questions as frankly and as honestly and as completely as you can. You [will take] [have taken] an oath to answer all questions truthfully and completely and you must do so. Remaining silent when you have information you should disclose is a violation of that oath as well. If a juror violates this oath, it not only may result in having to try the case all over again but also can result in civil and criminal penalties against a juror personally. So, again, it is very important that you be as honest and complete with your answers as you possibly can. If you don’t understand the question, please raise your hand and ask for an explanation or clarification.

In sum, this is a process to assist the parties and their attorneys to

select a fair and impartial jury. All of the questions they ask you are for this purpose. If, for any reason, you do not think you can be a fair and impartial juror, you must tell us.

NOTE ON USE

The publication of this recommended instruction is not intended to intrude upon the trial judge’s own style and manner of delivery. It may be useful in cataloging the subjects to be covered in an introductory instruction.

APPENDIX H 15


PRELIMINARY INSTRUCTION [After Jury Selection]

(Administer oath) What will be happening?

You have now taken an oath to serve as jurors in this trial. Before we begin, I want to let you know what you can expect.

Opening Statements: In a few moments, the attorneys will each have

a chance to make what are called opening statements. In an opening statement, an attorney is allowed to give you [his] [her] views about what the evidence will be in the trial and what you are likely to see and hear in the testimony.

Evidentiary Phase: After the attorneys’ opening statements the

plaintiffs will bring their witnesses and evidence to you.

Evidence. Evidence is the information that the law allows you to see or hear in deciding this case. Evidence includes the testimony of the witnesses, documents, and anything else that I instruct you to consider.

Witnesses. A witness is a person who takes an oath to tell the truth

and then answers attorneys’ questions for the jury. The answering of attorneys’ questions by witnesses is called “giving testimony.” Testimony means statements that are made when someone has sworn an oath to tell the truth.

The plaintiff’s lawyer will normally ask a witness the questions

first so as to provide you the testimony that the plaintiff’s lawyer believes is helpful to [his] [her] case. That is called direct examination. Then the defense lawyer may ask the same witness additional questions about whatever the witness has testified to. That is called cross-examination. Certain documents or other evidence may also be shown to you during direct or cross-examination. After the plaintiff’s witnesses have testified, the defendant will have the opportunity to put witnesses on the stand and go through the same process. Then the plaintiff’s lawyer gets to do cross-examination. The process is designed to be fair to both sides.

It is important that you remember that testimony comes from

witnesses. The attorneys do not give testimony and they are not themselves witnesses.

Objections: Sometimes the attorneys will disagree about the rules

for trial procedure when a question is asked of a witness. When that happens, one of the lawyers may make what is called an “objection.” The rules for a trial can be complicated, and there are many reasons for

APPENDIX H 16

attorneys to object. You should simply wait for me to decide how to proceed. If I say that an objection is “sustained,” that means the witness may not answer the question. If I say that the objection is “overruled,” that means the witness may answer the question.

When there is an objection and I make a decision, you must not

assume from that decision that I have any particular opinion other than that the rules for conducting a trial are being correctly followed. If I say a question may not be asked or answered, you must not try to guess what the answer would have been. That is against the rules, too.

Side Bar Conferences: Sometimes I will need to speak to the

attorneys about legal elements of the case that are not appropriate for the jury to hear. The attorneys and I will try to have as few of these conferences as possible while you are giving us your valuable time in the courtroom. But, if we do have to have such a conference during testimony, we will try to hold the conference at the side of my desk so that we do not have to take a break and ask you to leave the courtroom.

Recesses: Breaks in an ongoing trial are usually called “recesses.”

During a recess you still have your duties as a juror and must follow the rules, even while having coffee, at lunch, or at home.

Instructions Before Closing Arguments: After all the evidence has

been presented to you, I will instruct you in the law that you must follow. It is important that you remember these instructions to assist you in evaluating the final attorney presentations, which come next, and, later, during your deliberations, to help you correctly sort through the evidence to reach your decision.

Closing Arguments: The attorneys will then have the opportunity to

make their final presentations to you, which are called closing arguments.

Final Instructions: After you have heard the closing arguments, I

will instruct you further in the law as well as explain to you the procedures you must follow to decide the case.

Deliberations: After you hear the final jury instructions, you will go

to the jury room and discuss and decide the questions I have put on your verdict form. [You will have a copy of the jury instructions to use during your discussions.] The discussions you have and the decisions you make are usually called “jury deliberations.” Your deliberations are absolutely private and neither I nor anyone else will be with you in the jury room.

APPENDIX H 17

Verdict: When you have finished answering the questions, you will give the verdict form to the bailiff, and we will all return to the courtroom where your verdict will be read. When that is completed, you will be released from your assignment as a juror.

What are the rules?

Before we begin the trial, I want to give you just a brief explanation of the applicable rules.

Keeping an Open Mind. You must pay close attention to the

testimony and other evidence as it comes into the trial. However, you must avoid forming any final opinion or telling anyone else your views on the case until you begin your deliberations. This rule requires you to keep an open mind until you have heard all of the evidence and is designed to prevent you from influencing how your fellow jurors think until they have heard all of the evidence and had an opportunity to form their own opinions. The time and place for coming to your final opinions and speaking about them with your fellow jurors is during deliberations in the jury room, after all of the evidence has been presented, closing arguments have been made, and I have instructed you on the law. It is important that you hear all of the facts and that you hear the law and how to apply it before you start deciding anything.

Consider Only the Evidence. It is the things you hear and see in this

courtroom that matter in this trial. The law tells us that a juror can consider only the testimony and other evidence that all the other jurors have also heard and seen in the presence of the judge and the lawyers. Doing anything else is wrong and is against the law. That means that you must cannot do any homework or investigation of your own. You must cannot obtain on your own any information about the case or about anyone involved in the case, from any source whatsoever.,including the internet This includes reading newspapers, watching television or using a computer, cell phone, or any other electronic device to do research on the Internet to find out information related to this case or the people and places involved in this case, whether you are in the courthouse, at home, or anywhere else. You must cannot visit places mentioned in the trial or use the Internet to look at maps or pictures to see any place discussed during trial.

APPENDIX H 18

The law also tells us that jurors must cannot have discussions of any sort with friends or family members about the case or its subject. So, do not let even the closest family members make comments to you or ask questions about the trial. In this age of electronic communication, I want to stress that just as you must not talk about this case face-to-face, you must not talk about the case by using an electronic device. You must not use phones, computers or other electronic devices to communicate. Do not send or accept any messages, including e-mail or text messages, to or from anyone related to the case or your jury service. Do not discuss this case or ask for advice by posting information on an Internet website, chat room, blog or by any other means at all. Similarly, it is important that you avoid reading any newspaper accounts, or watching or listening to television or radio comments that have anything to do with this case or its subject.

No Mid-Trial Discussions. When we are in a recess, do not discuss

anything about the trial or the case with each other or with anyone else. If attorneys approach you, don’t speak with them. The law says they are to avoid contact with you. If an attorney will not look at you or speak to you, do not be offended or form a conclusion about that behavior. The attorney is not supposed to interact with jurors outside of the courtroom and is only following the rules. The attorney is not being impolite. If an attorney or anyone else does try to speak with you or says something about the case in your presence, please inform the bailiff immediately.

Only the Jury Decides. Only you get to deliberate and answer the

verdict questions at the end of the trial. I will not intrude into your deliberations at all. I am required to be neutral. You should not assume that I prefer one decision over another. You should not try to guess what my opinion is about any part of the case. It would be wrong for you to conclude that anything I say or do means that I am for one side or another in the trial. Discussing and deciding the facts is your job alone.

NOTE ON USE The publication of this recommended instruction is not intended to intrude upon the trial judge's own style and manner of delivery. It may be useful in cataloging the subjects to be covered in an introductory instruction.

APPENDIX H 19

REORGANIZED CIVIL JURY INSTRUCTIONS BOOK

201.2 [GIVEN BEFORE JURY IS SWORN]

INTRODUCTION OF PARTICIPANTS AND THEIR ROLES












APPENDIX H 20








must not provide any information about this case to anyone, including friends and family members, until you have been discharged from jury duty by the judge. This includes talking face-to-face or on the phone. In this age of electronic communication, I want to stress that you must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, to or from anyone about this case or your jury service. You must not disclose your thoughts about this case over the Internet or ask for advice on how to decide this case. All of us are depending on you to follow the law, so that there will be a fair and legal resolution to this case.

APPENDIX H 21

202.2 EXPLANATION OF TRIAL PROCEDURE [REORGANIZED BOOK - GIVEN AFTER JURY IS SWORN]

Now that you have heard the law, I want to let you know what you can expect as the trial proceeds.













for trial procedure when a question is asked of a witness. When that happens, one of the lawyers may make what is called an “objection.” The rules for a trial can be complicated, and there are many reasons for the attorneys to object. You should simply wait for me to decide how to proceed. If I say that an objection is “sustained,” that means you should disregard the question and the witness may not answer the question. If I say that the objection is “overruled,” that means the witness may answer the question.

APPENDIX H 22








been presented to you, I will instruct you on the law that you must follow. It is important that you remember these instructions to assist you in evaluating the final attorney presentations, which come next, and, later, during your deliberations, to help you correctly sort through the evidence to reach your decision.







Verdict: When you have finished answering the questions, you will

give the verdict form to the bailiff, and we will all return to the courtroom where your verdict will be read. When that is completed, you will be released from your assignment as a juror.

APPENDIX H 23

What are the rules?

Finally, before we begin the trial, I want to give you just a brief explanation of rules you must follow as the case proceeds.




courtroom that matter in this trial. The law tells us that a juror can consider only the testimony and other evidence that all the other jurors have also heard and seen in the presence of the judge and the lawyers. Doing anything else is wrong and is against the law. That means that you must cannot do any homework or investigation of your own. You must cannot obtain on your own any information about the case or about anyone involved in the case, from any source whatsoever.,including the internet This includes reading newspapers, watching television or using a computer, cell phone, or any other electronic device to do research on the Internet to find out information related to this case or the people and places involved in this case, whether you are in the courthouse, at home, or anywhere else. You must cannot visit places mentioned in the trial or use the Internet to look at maps or pictures to see any place discussed during trial.


any sort with friends or family members about the case or its subject. So, do not let even the closest family members make comments to you or ask questions about the trial. In this age of electronic communication, I

APPENDIX H 24

want to stress that just as you must not talk about this case face-to-face, you must not talk about the case by using an electronic device. You must not use phones, computers or other electronic devices to communicate. Do not send or accept any messages, including e-mail or text messages, to or from anyone related to the case or your jury service. Do not discuss this case or ask for advice by posting information on an Internet website, chat room, blog or by any other means at all. Similarly, it is important that you avoid reading any newspaper accounts, or watching or listening to television or radio comments that have anything to do with this case or its subject.





NOTE ON USE FOR 202.2 The publication of this recommended instruction is not intended to intrude upon the trial judge's own style and manner of delivery. It may be useful in cataloging the subjects to be covered in an introductory instruction.

APPENDIX H 25

REORGANIZED JURY INSTRUCTIONS BOOK:

700 CLOSING INSTRUCTIONS

Members of the jury, you have now heard all the evidence, my instructions on the law that you must apply in reaching your verdict and the closing arguments of the attorneys. You will shortly retire to the jury room to decide this case. [Before you do so, I have a few last instructions for you.]



communicate with any person outside the jury about this case. This means that during your deliberations and during your breaks, you must not talk about this case in person or through the telephone, writing, or electronic communication, such as a blog, twitter, e-mail, text message, or any other means. Do not contact anyone to assist you. This requirement applies until I discharge you at the end of the case. If you become aware of any violation of these instructions or any other instruction I have given in this case, you must tell me by giving a note to the bailiff.

Any notes you have taken during the trial may be taken to the jury room for use during your discussions. Your notes are simply an aid to your own memory, and neither your notes nor those of any other juror are binding or conclusive. Your notes are not a substitute for your own memory or that of other jurors. Instead, your verdict must result from the collective memory and judgment of all jurors based on the evidence and testimony presented during the trial.

APPENDIX H 26

At the conclusion of the trial, the bailiff will collect all of your notes and immediately destroy them. No one will ever read your notes. In reaching your verdict, do not let bias, sympathy, prejudice, public opinion or any other sentiment for or against any party to influence your decision. Your verdict must be based on the evidence that has been received and the law on which I have instructed you.

Reaching a verdict is exclusively your job. I cannot participate in that decision in any way and you should not guess what I think your verdict should be from something I may have said or done. You should not think that I prefer one verdict over another. Therefore, in reaching your verdict, you should not consider anything that I have said or done, except for my specific instructions to you.

Pay careful attention to all the instructions that I gave you for that is the law that you must follow. You will have a copy of my instructions with you when you go to the jury room to deliberate. All the instructions are important and you must consider all of them together. There are no other laws that apply to this case and even if you do not agree with these laws, you must use them in reaching your decision in this case.

After you have decided what the facts are, you may find that some instructions do not apply. In that case, follow the instructions that do apply and use them together with the facts to reach your verdict.

When you go to the jury room, the first thing you should do is choose a presiding juror to act as foreperson during your deliberations. The presiding juror should see to it that your discussions are orderly and that everyone has a fair chance to be heard.

It is your duty to talk with one another in the jury room and to consider the views of all the jurors. Each of you must decide the case for yourself, but only after you have considered the evidence with the other members of the jury. Feel free to change your mind if you are convinced that your position should be different. You should all try to agree. But do not give up your honest beliefs just because the others think differently. Keep an open mind so that you and your fellow jurors can easily share ideas about the case.

APPENDIX H 27

[I will give you a verdict form with questions you must answer. I have already instructed you on the law that you are to use in answering these questions. You must follow my instructions and the form carefully. You must consider each question separately. Please answer the questions in the order they appear. After you answer a question, the form tells you what to do next. I will now read the form to you: (read form of verdict)]

[You will be given (state number) forms of verdict, which I shall now read to you: (read form of verdict(s))]]

[If you find for (Claimant(s)), your verdict will be in the following form: (read form of verdict)]

[If you find for (Defendant(s)), your verdict will be in the following form: (read form of verdict)]

Your verdict[s] must be unanimous, that is, your verdict must be agreed to by each of you. When you have [agreed on your verdict[s]] [finished filling out the form[s]], your foreperson must write the date and sign it at the bottom and return the verdict[s] to the bailiff.

If any of you need to communicate with me for any reason, write

me a note and give it to the bailiff. In your note, do not disclose any vote or split or the reason for the communication.

You may now retire to decide your verdict[s].

NOTES ON USE FOR 700

1. When final instructions are read to the jury before the attorneys’ closing arguments, this instruction should not be given at that time. It should be given following closing arguments, just before the jury retires to deliberate. If, however, the entire instruction is given after final arguments, omit the bracketed sentence in the first paragraph.

2. Rule 2.430(l), Florida Rules of Judicial Administration, provides

that at the conclusion of the trial, the court shall collect and immediately destroy all juror notes.

3. Quotient verdict. The committee recommends that no instruction generally be given to admonish the jury against returning a “quotient

APPENDIX H 28

verdict.” When it is impracticable to take all of the evidence into the jury room,

this instruction should be modified accordingly.

APPENDIX H 29

[CURRENT CLOSING INSTRUCTION]

7.2

USE OF NOTES DURING DELIBERATIONS;

ELECTION OF FOREMAN; VERDICT FORMS

Any notes you have taken during the trial may be taken to the jury room for use during your discussions. Your notes are simply an aid to your own memory, and neither your notes nor those of any other juror are binding or conclusive. For this reason, you should not be unduly influenced by anyone’s notes, including your own, and you should not give greater weight to a particular piece of evidence or testimony merely because it is mentioned in a juror’s notes.

Your notes are not a substitute for your own memory or that of other jurors. Instead, your verdict must result from the collective memory and judgment of all jurors based on the evidence and testimony presented during the trial. You should consider the recollections of other jurors, but you need not abandon your own recollection of the evidence and testimony merely because your recollection differs from the written notes of another juror. At the conclusion of the trial, the bailiff will collect all of your notes and immediately destroy them. No one will ever read your notes.

You will have in the jury room all of the evidence that was

received during the trial. In reaching your decision, do not do any research on your own or as a group. Do not use dictionaries, the Internet, or any other reference materials. Do not investigate the case or conduct any experiments. Do not visit or view the scene of any event involved in this case or look at maps or pictures on the Internet. If you happen to pass by the scene, do not stop or investigate. All jurors must see or hear the same evidence at the same time. Do not read, listen to, or watch any news accounts of this trial.


communicate with any person outside the jury about this case. This means that during your deliberations and during your breaks, you must not talk about this case in person or through the telephone, writing, or electronic communication, such as a blog, twitter, e-mail, text message, or any other means. Do not contact anyone to assist you. This requirement applies until I discharge you at the end of the case. If you become aware of any violation of these instructions or any other instruction I have given in this case, you must tell me by giving a note to the bailiff.

APPENDIX H 30

When you retire to the jury room, you should select one of your

number to act as the foreperson to preside over your deliberations and sign your verdict[s]. Your verdict[s] must be unanimous, that is, your verdict[s] must be agreed to by each of you.

You will be given (state the number) forms of verdict, which I shall now read to you:

[If you find for the plaintiff[s], your verdict will be in the following form: (read form of verdict).]

[If you find for the defendant[s], your verdict will be in the following form: (read form of verdict).]

When you have agreed on your verdict[s], the foreperson, acting for the jury, should date and sign the appropriate form[s] of verdict. You may now retire to consider your verdict[s].



NOTES ON USE

1. Because there seems to be no uniform practice among the circuits whereby exhibits are delivered to the jury when it retires to consider the verdict, the committee makes no recommendation on that subject. The committee does recommend, however, that the court at least inform the jury at the time that the exhibits are available for inspection by the jury.

2. When final instructions are read to the jury before the attorneys’

closing arguments, this instruction should not be given at that time. It should be given following closing arguments, just before the jury retires to deliberate.

COMMENT

Quotient verdict. The committee recommends that no instruction generally be given to admonish the jury against returning a “quotient verdict.”

APPENDIX H 31

JURORS’ OATH PRIOR TO VOIR DIRE Do you solemnly swear or affirm that you will answer truthfully all questions asked of you as prospective jurors [so help you God]?

OATH OF JUROR AFTER VOIR DIRE [BEFORE SWEARING THE JURY OR HAVING CLERK SWEAR THE JURY, ASK THE PARTIES: Does the Plaintiff accept the jury? Does the Defendant accept the jury?]

Do you solemnly swear or affirm that you will well and truly try this case between the Plaintiff(s) and Defendant(s), and a true verdict render according to the law and evidence [so help you God]?

APPENDIX H 32

APPENDIX H 33

APPENDIX H 34

APPENDIX H 35

APPENDIX H 36

Draft instruction on juror internet use I’ve attempted to put together a draft of an instruction forbidding juror use of the internet to research matters in the case, as well as use of cell phones, BlackBerrys, etc. It seems that such an instruction would fit well in SJI 202.2 (“old” Instruction 1.1, the general instruction given after the jury has been sworn). A good place might be at the end of the first paragraph of the section of the Instruction headed “Consider only the evidence.” We’d need to reword the last sentence of that paragraph. The draft is drawn from instructions already used by trial judges across the state, as well as the Michigan instruction rule recently circulated. The text of the draft follows. Use of the Internet and other technology. I cannot emphasize too strongly that you must not try to obtain any information about this case from the internet or any other outside source. I’m sure that at least most of you are computer literate, and that probably all of you have cell phones, some of which may have internet access. Many people have gotten used to checking Google or some other internet search service to find the answers to various questions, to look up information that they may be curious about, or for other reasons. However, you cannot do this for anything connected in any way with this case. Below paragraph goes to “obtaining info”; the next paragraph to “disclosing info”. Thus “disclose” deleted below. Remember that I told you a minute ago that in deciding the case, you must consider only the evidence that you see and hear in this courtroom. This means that during the course of this trial you cannot use a computer, BlackBerry, cell phone or other electronic device to obtain any information about this case or anything related to this case, whether you are in this courtroom or at home or anywhere else. This would include trying to get information about the facts of the case, a party, witness or lawyer; accessing media accounts of this case; searching for information about any topics raised or testimony given by any witness; or researching any topic which might seem to you to be helpful in deciding this case. Just as it’s not allowed for jurors to consult old-fashioned

Deleted: computer

Deleted: method

Deleted: or disclose

Deleted: is case when you’re not in court here

APPENDIX H 37

encyclopedias, you cannot “google” or “twitter” to find out things about this case or the subjects involved in the case. Equally as important as not conducting your own research during the trial, you must not disclose any information about this case or your thoughts about it over the internet. Do not e-mail family or friends about the case or your impressions about any aspects of the evidence. Do not blog, “tweet” or otherwise communicate information about the case. You must not electronically contact others to ask their opinions, advice or thoughts on the issues in the case at any time, whether you are here or away from this courtroom. Failure to follow the instructions I’ve just given you will be a violation of the oath you took as jurors to obey my instructions, and could also jeopardize the orderly process of this trial. It could cause a mistrial, which means that this whole trial has to start all over again later on, with another jury having to be called. This can be extremely expensive for the parties, and for the court system of the State of Florida. To make sure that you are not disturbed during your deliberations, I will have the bailiff collect all your cell phones, BlackBerrys, pager, beepers and other electronic communications devices just before you begin the deliberation process. The bailiff will give you a contact phone number for any any friends for family to reach you in case of an emergency.

Deleted: .

Deleted: here

Deleted: your

Deleted: jeapordize

Deleted: When you begin deliberations,

Deleted: , so that your deliberations can be undisturbed.

APPENDIX H 38

CELL PHONES I know that most, if not all of you, have cell phones and that many of those cell phones have computer access. I also suspect that most of you are computer literate – certainly much more than I am. I have cautioned you not to do an independent research and that you verdict must be based on the facts you hear in this courtroom from the witness box and the evidence. Let me extend that caution. You are not to conduct any independent research on computers, your cell phones, or in any other manner. Not the old fashion kind in encyclopedias, or the newer methods of “googling” and “tweeting” on your computer based research tools. Lastly, you have been advised not to discuss this case with anybody except you fellow jurors and then only when you retire at the conclusion of the case to deliberate. Therefore, you must not e-mail or otherwise electronically contact other people about this case nor seek their opinions, advice or even thoughts on the issues before you.

APPENDIX H 39




Opening Statements: In a few moments, the attorneys will each have a chance to make

what are called opening statements. In an opening statement, an attorney is allowed to give you [his] [her] views about what the evidence will be in the trial and what you are likely to see and hear in the testimony.

Evidentiary Phase: After the attorneys’ opening statements the plaintiffs will bring

their witnesses and evidence to you.


Witnesses. A witness is a person who takes an oath to tell the truth and then answers

attorneys’ questions for the jury. The answering of attorneys’ questions by witnesses is called “giving testimony.” Testimony means statements that are made when someone has sworn an oath to tell the truth.

The plaintiff’s lawyer will normally ask a witness the questions first so as to provide

you the testimony that the plaintiff’s lawyer believes is helpful to [his] [her] case. That is called direct examination. Then the defense lawyer may ask the same witness additional questions about whatever the witness has testified to. That is called cross-examination. Certain documents or other evidence may also be shown to you during direct or cross-examination. After the plaintiff’s witnesses have testified, the defendant will have the opportunity to put witnesses on the stand and go through the same process. Then the plaintiff’s lawyer gets to do cross-examination. The process is designed to be fair to both sides.

It is important that you remember that testimony comes from witnesses. The

attorneys do not give testimony and they are not themselves witnesses.

Objections: Sometimes the attorneys will disagree about the rules for trial procedure when a question is asked of a witness. When that happens, one of the lawyers may make what is called an “objection.” The rules for a trial can be complicated, and there are many reasons for attorneys to object. You should simply wait for me to decide how to proceed. If I say that an objection is “sustained,” that means the witness may not answer the question. If I say that the objection is “overruled,” that means the witness may answer the question.

When there is an objection and I make a decision, you must not assume from that

decision that I have any particular opinion other than that the rules for conducting a trial are being correctly followed. If I say a question may not be asked or answered, you must not try to guess what the answer would have been. That is against the rules, too.

APPENDIX H 40

Side Bar Conferences: Sometimes I will need to speak to the attorneys about legal

elements of the case that are not appropriate for the jury to hear. The attorneys and I will try to have as few of these conferences as possible while you are giving us your valuable time in the courtroom. But, if we do have to have such a conference during testimony, we will try to hold the conference at the side of my desk so that we do not have to take a break and ask you to leave the courtroom.

Recesses: Breaks in an ongoing trial are usually called “recesses.” During a recess you

still have your duties as a juror and must follow the rules, even while having coffee, at lunch, or at home.

Instructions Before Closing Arguments: After all the evidence has been presented to

you, I will instruct you in the law that you must follow. It is important that you remember these instructions to assist you in evaluating the final attorney presentations, which come next, and, later, during your deliberations, to help you correctly sort through the evidence to reach your decision.

Closing Arguments: The attorneys will then have the opportunity to make their final

presentations to you, which are called closing arguments. Final Instructions: After you have heard the closing arguments, I will instruct you

further in the law as well as explain to you the procedures you must follow to decide the case.

Deliberations: After you hear the final jury instructions, you will go to the jury room

and discuss and decide the questions I have put on your verdict form. [You will have a copy of the jury instructions to use during your discussions.] The discussions you have and the decisions you make are usually called “jury deliberations.” Your deliberations are absolutely private and neither I nor anyone else will be with you in the jury room.

Verdict: When you have finished answering the questions, you will give the verdict

form to the bailiff, and we will all return to the courtroom where your verdict will be read. When that is completed, you will be released from your assignment as a juror.

What are the rules?


Keeping an Open Mind. You must pay close attention to the testimony and other

evidence as it comes into the trial. However, you must avoid forming any final opinion or telling anyone else your views on the case until you begin your deliberations. This rule requires you to keep an open mind until you have heard all of the evidence and is designed to prevent you from influencing how your fellow jurors think until they have heard all of the evidence and had an opportunity to form their own opinions. The time and place for coming to your final opinions and speaking about them with your fellow jurors is during deliberations in the jury room, after all of the evidence has been presented, closing arguments have been made, and I have instructed you on the law. It is important that you hear all of the facts and that you hear the law and how to apply it before you start deciding anything.

APPENDIX H 41

Consider Only the Evidence. It is the things you hear and see in this courtroom that

matter in this trial. The law tells us that a juror can consider only the testimony and other evidence that all the other jurors have also heard and seen in the presence of the judge and the lawyers. Doing anything else is wrong and is against the law. That means that you cannot do any homework or investigation of your own. You cannot obtain on your own any information about the case or about anyone involved in the case, from any source whatsoever, including the internet, and you cannot visit places mentioned in the trial.

The law also tells us that jurors cannot have discussions of any sort with friends or

family members about the case or its subject. So, do not let even the closest family members make comments to you or ask questions about the trial. Similarly, it is important that you avoid reading any newspaper accounts or watching or listening to television or radio comments that have anything to do with this case or its subject.

No Mid-Trial Discussions. When we are in a recess, do not discuss anything about the

trial or the case with each other or with anyone else. If attorneys approach you, don’t speak with them. The law says they are to avoid contact with you. If an attorney will not look at you or speak to you, do not be offended or form a conclusion about that behavior. The attorney is not supposed to interact with jurors outside of the courtroom and is only following the rules. The attorney is not being impolite. If an attorney or anyone else does try to speak with you or says something about the case in your presence, please inform the bailiff immediately.

Only the Jury Decides. Only you get to deliberate and answer the verdict questions at

the end of the trial. I will not intrude into your deliberations at all. I am required to be neutral. You should not assume that I prefer one decision over another. You should not try to guess what my opinion is about any part of the case. It would be wrong for you to conclude that anything I say or do means that I am for one side or another in the trial. Discussing and deciding the facts is your job alone.

APPENDIX H 42

Lucy Chernow Brown <[email protected]>

08/11/2009 04:03 PM

To Ralph Artigliere <[email protected]>, "Caldwell, Jr. , Dick" <[email protected]>, Amy Pratt <[email protected]>, "[email protected]"

cc Tracy Gunn <[email protected]>, "[email protected]" <[email protected]>, Jodi B Jennings <[email protected]>, "[email protected]"

bcc

Subject RE: Jury Misconduct Subcommittee

Everybody, Thanks to all of you for your work, and for forwarding the materials. I am personally very happy that we are working on this, as the problem seems to pop up more and more. Last week, some of my jurors googled the word "bolstering" during a break because one attorney kept objecting by saying that word. Many of the jurors did not know the meaning of the word, and they acted shocked that there was anything wrong with looking it up. So now I include some more specific cautions in my instructions. I like the draft article by Ralph, Jim and Bill, and I agree with Ralph's concept of a nuts and bolts instruction that judges and lawyers can enhance as appropriate for their personalities and individual cases. I also think that Allan's suggested message for jurors to send to their friends, relatives and other "pen pals" is a truly excellent idea. Since I originally suggested we try to formulate a concise plain English instruction, I felt I should make a stab at drafting one. Here is my initial effort. Please send any thoughts. Thank you. lcb This is a proposed instruction to be given at the beginning of jury selection, after the venire is sworn in (and to be repeated later.) I tried to make it bare bones yet emphatic. Now that you have been sworn as potential jurors, it is important that you understand that each one of you has a duty to absolutely avoid sending or receiving any information, opinions or ideas related in any way to this case, or to your experience here. The law requires that jurors decide cases based only on the evidence and on the law. The evidence in this case will be the sworn testimony of the witnesses and all exhibits introduced during the trial. I will instruct you on the law that applies to the case. Because the jury's verdict must be decided only on the evidence and the law, you must not be influenced by any other information, ideas or opinions. Therefore, you must not do any research or look up words, names, or anything else which has anything to do with this case, on cell phones, computers, books or any other devices ‐ not by reading, "googling," "tweeting," texting, blogging, e‐mailing, or by any other means at all. The law also strictly forbids you to give out any information about the case, to seek other people's opinions or to tell others your impressions or opinions about your experience as a juror, until you have been discharged from jury duty by the judge. All of us are depending upon you to follow the law, so that there will be a fair and legal resolution to this lawsuit. From: Ralph Artigliere [mailto:[email protected]] Sent: Wednesday, August 05, 2009 5:13 PMTo: Caldwell, Jr. , Dick; Amy Pratt; [email protected]; [email protected]; [email protected]; Lucy Chernow BrownCc: Tracy Gunn; [email protected]; Jodi B Jennings; [email protected]: Re: Jury Misconduct Subcommittee

APPENDIX H 43

In working on an article for the Bar Journal with Judge Barton and Bill Hahn, we are in the early draft stages, but I asked Allan Campo to review it. Alan had some good ideas (in red). Please recognize it as just a draft and a work in progress. Allan thought the article would be a good "call to action." I think judges and lawyers will develop some good ways to deal with these issues to complement the standard instruction that SJI comes up with. Rather than getting "too long", consider providing the nuts and bolts and let the judges and lawyers dress it up as needed during prelim and voir dire. Another idea I had was to see if we can get OSCA and the supreme court to recommend instruction for all potential jurors in the jury assembly area, which has the advantage of getting them early and at a time where universal information on jury duty is appropriate. That would be a good time to explain common sense things like the fact that they are to limit contact about the case is an alternative to sequestration and is part of their duty. It may even be done as part of the jury duty video. Then the jurors will be conditioned to it before they come to the courtroom. The disadvantage of the jury assembly area is that jurors may or may not be paying attention (less control) and it's not on the record. Ralph----- Original Message ----- From: Caldwell, Jr. , Dick To: Amy Pratt ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] Cc: Tracy Gunn ; [email protected] ; Jodi B Jennings ; [email protected] Sent: Wednesday, August 05, 2009 4:53 PMSubject: RE: Jury Misconduct Subcommittee Thanks, Joe, for agreeing to head this up. The last item of the attachments is Allan Campo's revisions to the draft instruction I had put together, and I'd recommend we use that as a starting point. Judge Brown's e-mail commented that the draft was probably too long, and when my partner Jim Edwards presented the issue to the FLABOTA meeting recently, the response was pretty much the same: the instruction was too lengthy. Allan had similar thoughts. Everyone I've spoken with or heard from has indicated that the existing instruction is inadequate, as demonstrated by some of the incidents related in the attachments. There seems to be agreement that we need to enhance what the instructions currently tell the jury about the prohibitions against internet usage. With this consensus, seems like we need to look at how we can cut the wording of the draft down, without sacrificing the clarity and force of what the instruction is trying to get across. I would favor making the language as strong as possible. Judge Kahn's comment was true, but even in the Panhandle few people carry guns around with them constantly. Conversely, most potential jurors will be accustomed to using cell phones with internet capability, Blackberrys or other hand-held computers, etc. It's probably unnecessary to tell jurors not to bring guns to court, but the internet use instruction needs to really get the jurors' attention that, no matter what their custom may be, they just can't use online services with respect to the trial. I'm open to any method of proceeding.

APPENDIX H 44

From: Amy Pratt [mailto:[email protected]] Sent: Wednesday, August 05, 2009 3:52 PMTo: [email protected]; Caldwell, Jr. , Dick; [email protected]; [email protected]; [email protected]; [email protected]: Tracy Gunn; [email protected]; Jodi B Jennings; [email protected]: Jury Misconduct Subcommittee(Sent on behalf of Joe Amos) Gang:

We are the "jury misconduct" subcommittee formed at last month’s meeting. For easy reference and to frame/start our discussion, I have attached all e-mails, articles, commentaries, etc. circulated on the subject. (I may have overlooked something, so please speak up if I did.)

Ralph recently described this subject as interesting and important. I could not agree more. In the last six months, I have had personal experience - in two separate trials - of potential hazards of juror "communication with the outside world." One involved the press and the other cell phone distractions.

Briefly, to summarize discussions at the last meeting (again, those there please add to and supplement this), the concerns voiced included:

a. Preventing/admonishing jurors from research (outside, Internet, etc.), discussion of the case with family and friends, and the like; and

b. The distractions and "lack of attention" issues caused by PDAs, cell phones, iPods.

We had a lively discussion, and even our judge members seemingly had different approaches and "pain tolerances" for mobile information/communication devices. I especially recall and enjoyed Judge Kahn’s observation: "I know a lot of folks in my part of the state that love their guns, but we don’t let them into the courthouse!"

To my mind the discussion was positive and productive, and posed some of these questions:

1. As a committee, what is our role and goal relative to this subject?

2. Do we strengthen the already existing instruction? If so, how?

3. Is cell phone use/access (during voir dire, trial and deliberations) really a judicial administration issue?

4. Relative to question number 3, how far do we go to accommodate prospective and sworn jurors?

5. How do we educate and raise awareness on the topic, acknowledging cell phone use, texting, PDA research, etc. will only likely increase.

Now, how does our group wish to proceed? Initial e-mail discussion, and then a conference call in a few weeks? I can coordinate and place the call.

Please get me your thoughts and suggestions. Tracy and Jim, you too.

Tracy, I assume the larger committee will want a subcommittee report for October’s meeting.

Thanks again everyone.Joseph L. Amos, Jr.Fisher, Rushmer, Werrenrath,

APPENDIX H 45

Dickson, Talley & Dunlap, P.A.20 N. Orange Avenue, Suite 1500P.O. Box 712Orlando, FL 32802-0712(407) 843-2111 (main office)(407) 535-4868 (direct telephone)(407) 535-4795 (direct fax)

CONFIDENTIAL : The information in this email (including any attachments) is confidential and may be privileged. If you are not the intended recipient, you may not and must not read, print, forward, use or disseminate the information contained herein. Although this email (and any attachments) are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is free of viruses or defects and no responsibility is accepted by the sender for any loss or damage arising or resulting in any way from its receipt or use. If you are not the intended recipient of this message, please reply to the sender and include this message and then delete this message from your inbox and your archive and/or discarded messages files. Any unintended disclosure of legally privileged and/or confidential information that may have occurred is inadvertent and does not constitute a waiver of any such privilege or confidentiality. Thank you.

IMPORTANT: Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, P. A. utilizes spam and junk e-mail filtration applications in its e-mail information systems. These applications may prevent or delay delivery of certain e-mail communications. If you do not receive a timely response to an e-mail communication, please contact the intended recipient via telephone at 407-843-2111.

IRS CIRCULAR 230 NOTICE: Pursuant to Treasury Department Circular 230, this is to advise you unless we otherwise expressly state in writing, e-mail communications, including all attachments, from this firm are not intended or written to be used, and cannot be used, for the purpose of avoiding tax-related penalties. If you wish to engage this firm to provide formal written advice as to federal or state tax issues, please contact the sender.

Please be advised that Florida has a broad public records law, and all correspondence to me via email may be subject to disclosure. Under Florida records law (SB80 effective 7-01-06), email addresses are public records. If you do not want your email address released in response to a public records request, do not send public records request to this entity. Instead, contact this office by phone or in writing.

APPENDIX H 46

Jodi B Jennings/The Florida Bar

07/14/2009 03:54 PM

To "Amos, Joseph" <[email protected]>, [email protected], "Artigliere, Ralph" <[email protected]>, [email protected],

cc

bcc

Subject Comments re: juror internet use

Here are additional comments on this issue for your consideration:

Lucy Brown on 7/14/09:

I have reviewed Dick's draft instruction on juror internet use and the Michigan Rule and Jim Edward's ABOTA paper. Unfortunately, I will be attending the Thursday session only, and I note this is on Friday's agenda, so here are some thoughts. I feel strongly that we should create a proposed an instruction on this. I am convinced that jurors who are instructed at the beginning of the trial will be much less likely to engage in this type of behavior. If a subcommittee is formed to work on this, I volunteer to be a member. I would be in favor of a shorter, rather than longer, clear and concise instrction. I applaud Dick for creating a draft which gives us a starting point; and I think we might also want to consider the Judge John Kest instrruction included in the Jim Edwards paper. Looking forward to seeing you all on Thursday. lcb

Ralph Artigliere on 7/13/09:

Jodi, Thanks for the additional materials. The ABOTA speech was particularly comprehensive on the subject that Judge Barton, Bill Hahn, and I will be addressing in a Bar Journal article on preventing juror misconduct. I am attaching California Plain English intro instructions that may be of some interest to the committee in considering this important topic. One other point regarding instructions on limiting use of communications devices and contact with others about the case: I was told (and believe) that many times jurors will understand and accept limitations on their behavior if they understand why. For that reason, I told jurors before I sent them out to deliberate that: In the old days (and sometimes even now) jurors were sequestered during the trial to keep them from any from contact with the outside. We are not going to do that, but in letting you go about their daily lives and communicate with others during breaks, we rely on you to sequester yourselves by not speaking with anyone or hearing from anyone about this case or matters that might affect this case. For the law to be followed you need to absolutely be silent about the case and not hear or read anything about it. Just a thought. Ralph

Dick Caldwell and Allan Campo on 7/13/09:

APPENDIX H 47

Thanks, Allan. I like your suggestions. By the way, a family medical emergency occurred early this morning, which may well prevent me from attending the meeting in Miami. I'll know more tomorrow and will pass along my status ASAP. The length of the instruction did concern me as I was putting it together. However, it seemed that it might be better to make the scope as broad as possible, the thought being that items could be eliminated after consideration if necessary, rather more easily than added from a blank slate. Should be an interesting discussion. I'll keep you posted.

From: [email protected] [mailto:[email protected]] Sent: Monday, July 13, 2009 11:05 AMTo: Caldwell, Jr. , Dick; [email protected]; [email protected]; [email protected]: Ramkissoon, Zita; [email protected]: Re: Juror internet instruction draft

I really like the tone of this writing. I also like its thoroughness, and (while it is a lengthy instruction) think it is a good idea to cover the range of things people might do electronically that violate the intent of sequestration. There is not yet a well-developed sense in the culture of an "ethic" for electronic communication; and that makes this a teaching tool as much as an instruction. I have made a couple of suggestions here and there, consistent with the style of the piece. Thanks for letting me contribute!Allan

APPENDIX H 48

"Amy Pratt" <[email protected]>

08/05/2009 03:51 PM

To <[email protected]>, <[email protected]>, <[email protected]>, <[email protected]>, <[email protected]>,

cc "Tracy Gunn" <[email protected]>, <[email protected]>, "Jodi B Jennings" <[email protected]>, <[email protected]>

bcc

Subject Jury Misconduct Subcommittee

(Sent on behalf of Joe Amos) Gang:

We are the "jury misconduct" subcommittee formed at last month’s meeting. For easy reference and to frame/start our discussion, I have attached all e-mails, articles, commentaries, etc. circulated on the subject. (I may have overlooked something, so please speak up if I did.)

Ralph recently described this subject as interesting and important. I could not agree more. In the last six months, I have had personal experience - in two separate trials - of potential hazards of juror "communication with the outside world." One involved the press and the other cell phone distractions.

Briefly, to summarize discussions at the last meeting (again, those there please add to and supplement this), the concerns voiced included:

a. Preventing/admonishing jurors from research (outside, Internet, etc.), discussion of the case with family and friends, and the like; and

b. The distractions and "lack of attention" issues caused by PDAs, cell phones, iPods.

We had a lively discussion, and even our judge members seemingly had different approaches and "pain tolerances" for mobile information/communication devices. I especially recall and enjoyed Judge Kahn’s observation: "I know a lot of folks in my part of the state that love their guns, but we don’t let them into the courthouse!"

To my mind the discussion was positive and productive, and posed some of these questions:

1. As a committee, what is our role and goal relative to this subject?

2. Do we strengthen the already existing instruction? If so, how?

3. Is cell phone use/access (during voir dire, trial and deliberations) really a judicial administration issue?

4. Relative to question number 3, how far do we go to accommodate prospective and sworn jurors?

5. How do we educate and raise awareness on the topic, acknowledging cell phone use, texting, PDA research, etc. will only likely increase.

Now, how does our group wish to proceed? Initial e-mail discussion, and then a conference call in a few weeks? I can coordinate and place the call.

Please get me your thoughts and suggestions. Tracy and Jim, you too.

Tracy, I assume the larger committee will want a subcommittee report for October’s meeting.

APPENDIX H 49

Thanks again everyone.

Joseph L. Amos, Jr.Fisher, Rushmer, Werrenrath,Dickson, Talley & Dunlap, P.A.20 N. Orange Avenue, Suite 1500P.O. Box 712Orlando, FL 32802-0712(407) 843-2111 (main office)(407) 535-4868 (direct telephone)(407) 535-4795 (direct fax)



IRS CIRCULAR 230 NOTICE: Pursuant to Treasury Department Circular 230, this is to advise you unless we otherwise expressly state in writing, e-mail communications, including all attachments, from this firm are not intended or written to be used, and cannot be used, for the purpose of avoiding tax-related penalties. If you wish to engage this firm to provide formal written advice as to federal or state tax issues, please contact the sender. [attachment "Attachments.pdf" deleted by Jodi B Jennings/The Florida Bar]

APPENDIX H 50

"Rebecca Mercier-Vargas" <[email protected]>

09/18/2009 01:58 PM

To "Ralph Artigliere" <[email protected]>, <[email protected]>, <[email protected]>, <[email protected]>

cc <[email protected]>, "Jodi B Jennings" <[email protected]>

bcc

Subject RE: draft instruction on juror electronic research & communication

Thanks, I think an instruction before deliberation is a great idea. FYI, the email address for Bart had an error in my original message. Hopefully, it is correct in this message. Please do not use my original message to ‘reply to all.’

Rebecca Mercier Vargas, Esq.Board Certified Appellate LawyerKreusler-Walsh, Compiani & Vargas P.A.501 South Flagler Drive, Suite 503West Palm Beach, Florida 33401Telephone: (561) 659-5455Facsimile: (561) 820-8762

From: Ralph Artigliere [mailto:[email protected]] Sent: Friday, September 18, 2009 1:29 PMTo: Rebecca Mercier-Vargas; [email protected]; [email protected]; [email protected]: [email protected]: Re: draft instruction on juror electronic research & communication Rebecca, Might I suggest a companion instruction before sending the jurors to deliberate? See attached. I used Civil Inst. 7.2 as a base. Likewise, no pride of authorship... throwing it out for consideration and criticism. I used the word "me" instead of "the judge" like you did in yours. I always thought it sounded a bit stiff to refer to myself as the judge or the court. As you can see, I used the "empowerment" language we discussed the other day. If we are going to recommend it, I think this is as good a place as any. I looked at the discharge instruction (7.4) and did not see a need to change that. For convenience, I attached the current 7.4. I will be mulling over your instructions as well as the 7.2 modifications, and I plan to critique my own language (hopefully constructively). Thanks for your good work. Ralph Artigliere----- Original Message ----- From: Rebecca Mercier-Vargas To: [email protected] ; [email protected] ; [email protected] ; [email protected]

APPENDIX H 51

Cc: [email protected] Sent: Friday, September 18, 2009 11:54 AMSubject: draft instruction on juror electronic research & communication Hello: As we discussed on our call on Wednesday, attached are draft instructions addressing jurors’ use of electronic devices and the internet to research during trial or to communicate about the case. Bart, you were not on the conference call, but your friends from the criminal instructions committee nominated you to help draft an initial proposal. Our drafting group has been charged with circulating a working draft to the joint subcommittee by next Friday, Sept. 25. Judge Brown, you were not on the call at this point, but I thought you might be interested in working with the drafting sub-subcommittee. If not, please feel free to disregard this message. As discussed, I started with the existing preliminary civil instructions—one given before the jury is sworn and the other given after the jury is sworn. I started with the language Judge Brown proposed and revised it to include some language from the instructions used in other states and the other proposals in our materials. For example, I added this sentence from the California instruction: “Do not send or accept any messages, including e-mail or text messages, to or from anyone concerning the trial or your service.” I look forward to hearing your thoughts and comments on this draft. There is no pride of authorship and I welcome your input or constructive criticism.

Rebecca Mercier Vargas, Esq.Board Certified Appellate LawyerKreusler-Walsh, Compiani, & Vargas P.A.501 South Flagler Drive, Suite 503 West Palm Beach, Florida 33401 Telephone: (561) 659-5455 Facsimile: (561) 820-8762

--------------------------------------------------------------------------------

CONFIDENTIALITY NOTICE: This email message, including any attachments, is a confidential attorney-client communication. If you are not the intended recipient, please contact me and destroy all copies of the original message and attachments.

APPENDIX H 52

DRAFT 9/18/09 CIVIL PRELMINARY INSTRUCTION

GIVEN BEFORE JURY IS SWORN

201.2














APPENDIX H 53




The law requires that jurors decide cases based only on the evidence

and on the law presented in court. The evidence in this case will be the sworn testimony of the witnesses and all exhibits introduced during the trial. I will instruct you on the law that applies to the case.

Because the jury must decide the case only on the evidence and the

law, you must not be influenced by any other information, ideas or opinions. For this reason, you must not do any research or look up words, names, maps or anything else that has anything to do with this case. This includes reading newspapers or using a computer or cell phone to find our information about this case on the internet, whether you are in the courthouse, at home or anywhere else.

Just as important as not doing research about this case, you must

not provide any information about this case to anyone, including friends and family members, until you have been discharged from jury duty by the judge. This includes talking face-to-face or on the phone. In this age of electronic communication, I want to stress that you cannot use electronic devices or computers to talk about this case, including "tweeting," texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, to or from anyone about this case or your jury service. You must not disclose your thoughts about this case over the internet or ask for advice on how to decide this case. All of us are depending upon you to follow the law, so that there will be a fair and legal resolution to this case.

APPENDIX H 54

DRAFT 9/18/09 CIVIL PRELIMINARY INSTRUCTION

GIVEN AFTER JURY IS SWORN

202.2 EXPLANATION OF TRIAL PROCEDURE Now that you have heard the law, I want to let you know what you can expect as the trial proceeds.













for trial procedure when a question is asked of a witness. When that

APPENDIX H 55

happens, one of the lawyers may make what is called an “objection.” The rules for a trial can be complicated, and there are many reasons for the attorneys to object. You should simply wait for me to decide how to proceed. If I say that an objection is “sustained,” that means you should disregard the question and the witness may not answer the question. If I say that the objection is “overruled,” that means the witness may answer the question.















APPENDIX H 56



What are the rules?





courtroom that matter in this trial. The law tells us that a juror can consider only the testimony and other evidence that all the other jurors have also heard and seen in the presence of the judge and the lawyers. Doing anything else is wrong and is against the law. That means that you cannot do any work or investigation of your own about the case. You cannot obtain on your own any information about the case or about anyone involved in the case, from any source whatsoever.,including the internet This includes using a computer or cell phone to find out information about this case on the internet, whether you are in the courthouse, at home or anywhere else. and You cannot visit places mentioned in the trial or use the internet to look at maps or pictures to see any place discussed during trial.

Do not provide any information about this case to anyone,

APPENDIX H 57

including friends or family members. Do not let anyone, including the closest family members, make comments to you or ask questions about the trial. Similarly, it is important that you avoid reading any accounts in the newspaper accounts, or on the internet or watching or listening to television or radio comments that have anything to do with this case or its subject.


anything about the trial or the case with each other or with anyone else. In this age of electronic communication, I want to stress that just as you cannot talk about this case face-to-face, you cannot talk about the case by using an electronic device. This includes phones, computers or other electronic devices. Do not send or accept any messages, including e-mail or text messages, to or from anyone about the trial or your jury service. Do not discuss this case or ask for advice by posting information on an internet website, chat room, blog or by any other means at all. If attorneys approach you, don’t speak with them. The law says they are to avoid contact with you. If an attorney will not look at you or speak to you, do not be offended or form a conclusion about that behavior. The attorney is not supposed to interact with jurors outside of the courtroom and is only following the rules. The attorney is not being impolite. If an attorney or anyone else does try to speak with you or says something about the case in your presence, please inform the bailiff immediately.




APPENDIX H 58


09/25/2009 11:18 AM

To "Lucy Chernow Brown" <[email protected]>, "Ralph Artigliere" <[email protected]>, <[email protected]>, <[email protected]>

cc "Jodi B Jennings" <[email protected]>, <[email protected]>

bcc

Subject RE: Drafting subcommittee: revised draft instructions on juror use of electronic devices

Thank you for all your help on this and your quick responses. I've alsoreally enjoyed working with you all on this project.

I was thinking further about the closing instructions and how to dealwith the fact that the civil committee already has a proposed amendmentpending to amend closing instruction 7.2. I think that to avoidconfusion, we should make sure that the language we add to instruction7.2 will be the same as the language in instruction 700.

Three files are attached to this email: (1) "reorganized book" has thefinal versions of the amendments to the preliminary and closinginstructions that the civil committee has submitted to the Court; (2)instruction 700/jury conduct has the amendments I would propose addingto instruction 700; and (3) instruction 7.2/jury conduct has theamendment to instruction 7.2 that I circulated yesterday.

Ralph originally drafted a new paragraph to add to instruction 7.2.However, the committee had already revised instruction 7.2 in theproposed instruction 700 to prohibit jurors from investigating duringdeliberations. The second paragraph of instruction 700 (which is not inthe current 7.2) directs jurors not to do any research, includinginternet research, and not to contact anyone about the case. Thisparagraph is broader than the language we had been discussing adding to7.2 because it also tells jurors not to conduct any experiments or go tothe places involved in the case. I think we should use this broaderlanguage that the civil committee has already agreed upon.

I then added the third paragraph to instruction 700, which has thelanguage Ralph suggested adding to 7.2 to remind jurors not tocommunicate about the case, including electronic communications. Thesentence "Do not contact anyone to assist you, such as a familyaccountant, doctor or lawyer" had been in the second paragraph ofinstruction 700. I moved it to the new third paragraph directing jurorsnot to communicate about the case.

It makes sense to me to ask the court to amend instruction 7.2 toinclude the language in instruction 700 now. Please let me know yourthoughts about this. Thanks again for all your help.

Rebecca

Rebecca Mercier Vargas, Esq.Board Certified Appellate LawyerKreusler-Walsh, Compiani & Vargas P.A.501 South Flagler Drive, Suite 503West Palm Beach, Florida 33401Telephone: (561) 659-5455Facsimile: (561) 820-8762-----Original Message-----

APPENDIX H 59

From: Lucy Chernow Brown [mailto:[email protected]]Sent: Thursday, September 24, 2009 8:43 AMTo: Ralph Artigliere; Rebecca Mercier-Vargas; [email protected];[email protected]: Jodi B Jennings; [email protected]: RE: Drafting subcommittee: revised draft instructions on juroruse of electronic devices

Yes. Thank you to everyone. The sub-subcommittee, and especially ourleader, Rebecca. lcb

-----Original Message-----From: Ralph Artigliere [mailto:[email protected]]Sent: Wednesday, September 23, 2009 5:20 PMTo: Rebecca Mercier-Vargas; Lucy Chernow Brown; [email protected];[email protected]: Jodi B Jennings; [email protected]: Re: Drafting subcommittee: revised draft instructions on juroruse of electronic devices

Nice job, Rebecca.

I enjoyed working with all of you today.

Ralph----- Original Message -----From: "Rebecca Mercier-Vargas" <[email protected]>To: <[email protected]>; <[email protected]>;<[email protected]>; <[email protected]>Cc: "Jodi B Jennings" <[email protected]>; <[email protected]>Sent: Wednesday, September 23, 2009 2:23 PMSubject: Drafting subcommittee: revised draft instructions on juror useofelectronic devices

<<civil closing instruction 700 (jury conduct - reorg book)(00013009).DOC>> <<civil prelim 1.1 (after sworn-(juror conduct-current book) (00013008).DOC>> <<civ prelim 1.0 (jury electronicdevices) (current book) (00013007).DOC>> <<civil instruction 202.2(AFTER sworn- reorg book) (00012971).DOC>> <<civil preliminary 201.2(before sworn- reorg book) (00012970).DOC>> <<civil closing 7.2 (juryconduct-current book) (00013005).RTF>>Drafting sub-subcommittee:

Attached are the draft instructions with the revisions that we justdiscussed. Please let me know if this reflects your understanding of thechanges we agreed to make or if you see anything else that needs to berevised. I would appreciate hearing from you by the end of the daytomorrow, Thursday Sept. 24, so that the revisions can be circulated tothe rest of the joint subcommittee on Friday, Sept. 25.

Bart, just a quick explanation of why there are now two sets of all thecivil instructions. The current civil jury instructions arepreliminary instructions 1.0 and 1.1 and closing instruction 7.2. Thecommittee has a large proposal pending in the Supreme Court toreorganize the civil jury instructions book, including renumbering theseinstructions to preliminary instructions 201.2 and 202.2 and closinginstruction 700. I took the language we agreed to during our call andmade them consistent in the current numbers 1.0/1.1/7.2 and the pending

APPENDIX H 60

reorganized book numbers 201.1/202.2/700.

I would appreciate it if you all took a look at instruction 700. Thecommittee's proposal to reorganize the jury instructions book and makeinstruction 7.2 into instruction 700 already includes some new languagedirecting jurors not to perform internet research or conductexperiments. Because there is already a new paragraph in the pendinginstruction 700, I could not simply plug the language we had discussedwith instruction 7.2 into instruction 700.

I look forward to hearing your comments on this. Thanks very much.Rebecca


Please be advised that Florida has a broad public records law, and allcorrespondence to me via email may be subject to disclosure. UnderFlorida records law (SB80 effective 7-01-06), email addresses are publicrecords. If you do not want your email address released in response to apublic records request, do not send public records request to thisentity. Instead, contact this office by phone or in writing.[attachment "civil closing instruction 700 (jury conduct - reorg book) (00013009).DOC" deleted by Jodi B Jennings/The Florida Bar] [attachment "REORGANIZED BOOK--preliminary and closing instructions (00013028).DOC" deleted by Jodi B Jennings/The Florida Bar] [attachment "civil closing 7.2 (jury conduct-current book) (00013005).RTF" deleted by Jodi B Jennings/The Florida Bar]

APPENDIX H 61

DRAFT 9/23/2009 (REORGANIZED JURY INSTRUCTIONS BOOK)


Members of the jury, you have now heard all the evidence, my

instructions on the law that you must apply in reaching your verdict and the closing arguments of the attorneys. You will shortly retire to the jury room to decide this case. [Before you do so, I have a few last instructions for you.]

You will have in the jury room all of the evidence that was received during the trial. You are reminded that during your deliberations, and during any recess or break, you are not to communicate with any person outside the jury about this case in person or through telephone, writing, or electronic communication, such as a blog, twitter, email, text message, or any other means, and you are not to do any research in books, on-line, or by any other method. This requirement applies until you are released by me at the end of the case. In reaching your decision, do not do any research on your own or as a group. Do not use dictionaries, the Internet, or other reference materials. Do not investigate the case or conduct any experiments. Do not contact anyone to assist you, such as a family accountant, doctor, or lawyer. Do not visit or view the scene of any event involved in this case. If you happen to pass by the scene, do not stop or investigate. All jurors must see or hear the same evidence at the same time. Do not read, listen to, or watch any news accounts of this trial. If you become aware of any violation of this instruction or any other instruction I have given in this case, you must tell me by giving a note to the bailiff.


At the conclusion of the trial, the bailiff will collect all of your

notes and immediately destroy them. No one will ever read your notes.

APPENDIX H 62

In reaching your verdict, do not let bias, sympathy, prejudice, public opinion or any other sentiment for or against any party to influence your decision. Your verdict must be based on the evidence that has been received and the law on which I have instructed you.






[I will give you a verdict form with questions you must answer. I

APPENDIX H 63

have already instructed you on the law that you are to use in answering these questions. You must follow my instructions and the form carefully. You must consider each question separately. Please answer the questions in the order they appear. After you answer a question, the form tells you what to do next. I will now read the form to you: (read form of verdict)]












3. Quotient verdict. The committee recommends that no instruction generally be given to admonish the jury against returning a “quotient verdict.”

APPENDIX H 64

4

When it is impracticable to take all of the evidence into the jury room, this instruction should be modified accordingly.

APPENDIX H 65

DRAFT 9/23/2009

















for trial procedure when a question is asked of a witness. When that

APPENDIX H 66

happens, one of the lawyers may make what is called an “objection.” The rules for a trial can be complicated, and there are many reasons for attorneys to object. You should simply wait for me to decide how to proceed. If I say that an objection is “sustained,” that means the witness may not answer the question. If I say that the objection is “overruled,” that means the witness may answer the question.















APPENDIX H 67


What are the rules?





courtroom that matter in this trial. The law tells us that a juror can consider only the testimony and other evidence that all the other jurors have also heard and seen in the presence of the judge and the lawyers. Doing anything else is wrong and is against the law. That means that you cannot do any homework or investigation of your own. You cannot obtain on your own any information about the case or about anyone involved in the case, from any source whatsoever whatsoever.,including the internet This includes using a computer or cell phone to find out information related to this case on the internet, whether you are in the courthouse, at home or anywhere else. and You cannot visit places mentioned in the trial or use the internet to look at maps or pictures to see any place discussed during trial.

The law also tells us that jurors cannot have discussions of any sort

with friends or family members about the case or its subject. So, do not

APPENDIX H 68

let even the closest family members make comments to you or ask questions about the trial. Similarly, it is important that you avoid reading any accounts in the newspaper accounts, or on the internet or watching or listening to television or radio comments that have anything to do with this case or its subject.


anything about the trial or the case with each other or with anyone else. In this age of electronic communication, I want to stress that just as you cannot talk about this case face-to-face, you cannot talk about the case by using an electronic device. This includes phones, computers or other electronic devices. Do not send or accept any messages, including e-mail or text messages, to or from anyone related to the case or your jury service. Do not discuss this case or ask for advice by posting information on an internet website, chat room, blog or by any other means at all.

If attorneys approach you, don’t speak with them. The law says

they are to avoid contact with you. If an attorney will not look at you or speak to you, do not be offended or form a conclusion about that behavior. The attorney is not supposed to interact with jurors outside of the courtroom and is only following the rules. The attorney is not being impolite. If an attorney or anyone else does try to speak with you or says something about the case in your presence, please inform the bailiff immediately.



NOTE ON USE

The publication of this recommended instruction is not intended to intrude upon the trial judge's own style and manner of delivery. It may be useful in cataloging the subjects to be covered in an introductory instruction.

APPENDIX H 69

DRAFT 9/23/2009 CIVIL INSTRUCTION 1.0

PRELIMINARY INSTRUCTION

[Prior to Voir Dire]


Now that you have been sworn, I’d like to give you an idea about what we are here to do.











APPENDIX H 70

Court Clerk: This person sitting in front of me, (name), is the court clerk. [He] [She] is here to assist me with some of the mechanics of the trial process, including the numbering and collection of the exhibits that are introduced in the course of the trial.







I will instruct you on the law that applies to the case. The evidence

in this case will be the sworn testimony of the witness[es] and any exhibits that may be introduced during the trial. The law requires that jurors decide cases based only on the evidence and on the law presented in court.

For this reason, you must not do any research or look up words,

names, [maps] or anything else that has anything to do with this case. This includes reading newspapers or using a computer or cell phone to find out information related to this case or the people and places involved in this case, whether you are in the courthouse, at home or anywhere else.


must not provide any information about this case to anyone, including friends and family members, until you have been discharged from jury duty by the judge. This includes talking face-to-face or on the phone.

APPENDIX H 71

use electronic devices or computers to talk about this case, including "tweeting," texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, to or from anyone about this case or your jury service. You must not disclose your thoughts about this case over the internet or ask for advice on how to decide this case. All of us are depending on you to follow the law, so that there will be a fair and legal resolution to this case.

Voir Dire:








Response to Questioning. There are no right or wrong answers to

the questions that will be asked of you. The only thing that I ask is that you answer the questions as frankly and as honestly and as completely

APPENDIX H 72

- 4 -

as you can. You [will take] [have taken] an oath to answer all questions truthfully and completely and you must do so. Remaining silent when you have information you should disclose is a violation of that oath as well. If a juror violates this oath, it not only may result in having to try the case all over again but also can result in civil and criminal penalties against a juror personally. So, again, it is very important that you be as honest and complete with your answers as you possibly can. If you don’t understand the question, please raise your hand and ask for an explanation or clarification.



NOTE ON USE


APPENDIX H 73

DRAFT 9/23/09 CIVIL PRELMINARY INSTRUCTION

GIVEN BEFORE JURY IS SWORN

201.2














APPENDIX H 74

- 2 -









must not provide any information about this case to anyone, including friends and family members, until you have been discharged from jury duty by the judge. This includes talking face-to-face or on the phone. In this age of electronic communication, I want to stress that you cannot use electronic devices or computers to talk about this case, including "tweeting," texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, to or from anyone about this case or your jury service. You must not disclose your thoughts about this case over the internet or ask for advice on how to decide this case. All of us are depending on you to follow the law, so that there will be a fair and legal resolution to this case.

APPENDIX H 75

DRAFT 9/23/09


USE OF NOTES DURING DELIBERATIONS; ELECTION OF FOREMAN; VERDICT FORMS

Any notes you have taken during the trial may be taken to the

jury room for use during your discussions. Your notes are simply an aid to your own memory, and neither your notes nor those of any other juror are binding or conclusive. For this reason, you should not be unduly influenced by anyone’s notes, including your own, and you should not give greater weight to a particular piece of evidence or testimony merely because it is mentioned in a juror’s notes.


You are reminded that during your deliberations, and during any

recess or break, you are not to communicate with any person outside the jury about this case in person or through telephone, writing, or electronic communication, such as a blog, twitter, email, text message, or any other means, and you are not to do any research in books, on-line, or by any other method. This requirement applies until you are released by me at the end of the case. If you become aware of any violation of this instruction or any other instruction I have given in this case, you must tell me by giving a note to the bailiff.






APPENDIX H 76

- 2 -




NOTES ON USE




COMMENT


APPENDIX H 77

PRELIMINARY AND CLOSING CIVIL JURY INSTRUCTIONS

IN REORGANIZED CIVIL JURY INSTRUCTIONS BOOK (pending amendment in Fla. Sup. Ct.)

SECTION 200 -- PRELIMINARY INSTRUCTIONS

A. DURING JURY INSTRUCTION

201.1 Description of the Case 201.2 Introduction of Participants and their roles 201.3 Explanation of the Voir Dire Process

B. AFTER JURY SELECTED AND SWORN

202.1 Introduction 202.2 Explanation of the Trial Procedure 202.3 Note Taking

202.4 Juror Questions 202.5 Jury to be guided by official English translation

/ interpretation 201.1 DESCRIPTION OF THE CASE

[Prior to Voir Dire]


Now that you have been sworn, I’d like to give you an idea about what we are here to do. This is a civil trial. A civil trial is different from a criminal case, where a defendant is charged by the state prosecutor with committing a crime. The subject of a civil trial is a disagreement between people or companies [or others, as appropriate], where the claims of one or more of these parties has been brought to court to be resolved. It is called “a trial of a lawsuit.”

APPENDIX H 78

This is a case about (Insert brief description of claim(s) and defense(s) brought to trial in this case); see, for example, 4.12. The incident involved in this case occurred on (date) at (location). (Add any other information relevant to voir dire).

The principle witnesses who will testify in this case are (list witnesses).

201.2




Attorneys: The attorneys to whom I will introduce you have

the job of representing their clients. That is, they speak for their client here at the trial. They have taken oaths as attorneys to do their best and to follow the rules for their profession.

Plaintiff’s Counsel: The attorney on this side of the

courtroom, (introduce by name), represents (client name) and is the person who filed the lawsuit here at the courthouse. [His] [Her] job is to present [his] [her] client’s side of things to you. [He] [She] and [his] [her] client will be referred to most of the time as “the plaintiff.”


Court Clerk: This person sitting in front of me, (name), is the

APPENDIX H 79

court clerk. [He] [She] is here to assist me with some of the mechanics of the trial process, including the numbering and collection of the exhibits that are introduced in the course of the trial.

Court Reporter: The person sitting at the stenographic

machine, (name), is the court reporter. [His] [Her] job is to keep an accurate legal record of everything we say and do during this trial.

Bailiff: The person over there, (name), is the bailiff. [His]

[Her] job is to maintain order and security in the courtroom. The bailiff is also my representative to the jury. Anything you need or any problems that come up for you during the course of the trial should be brought to [him] [her]. However, the bailiff cannot answer any of your questions about the case. Only I can do that.

Jury: Last, but not least, is the jury, which we will begin to

select in a few moments from among all of you. The jury’s job will be to decide what the facts are and what the facts mean. Jurors should be as neutral as possible at this point and have no fixed opinion about the lawsuit. At the end of the trial the jury will give me a written verdict. A verdict is simply the jury’s answer to my questions about the case.

201.3

EXPLANATION OF VOIR DIRE PROCESS

Voir Dire:





APPENDIX H 80


Purpose of Questioning. The questions that you will be asked

during this process are not intended to embarrass you or unnecessarily pry into your personal affairs, but it is important that the parties and their attorneys know enough about you to make this important decision. If a question is asked that you would prefer not to answer in front of the whole courtroom, just let me know and you can come up here and give your answer just in front of the attorneys and me. If you have a question of either the attorneys or me, don’t hesitate to let me know.


the questions that will be asked of you. The only thing that I ask is that you answer the questions as frankly and as honestly and as completely as you can. You [will take] [have taken] an oath to answer all questions truthfully and completely and you must do so. Remaining silent when you have information you should disclose is a violation of that oath as well. If a juror violates this oath, it not only may result in having to try the case all over again but also can result in civil and criminal penalties against a juror personally. So, again, it is very important that you be as honest and complete with your answers as you possibly can. If you don’t understand the question, please raise your hand and ask for an explanation or clarification.



NOTE ON USE FOR 201.3


APPENDIX H 81

AFTER JURY SELECTED AND SWORN

202.1 INTRODUCTION

(Administer oath) You have now taken an oath to serve as jurors in this trial. Before we begin, I am going to tell you about the rules of law that apply to this case and let you know what you can expect as the trial proceeds. It is my intention to give you [all] [most] of the rules of law but it might be that I will not know for sure all of the law that will apply in this case until all of the evidence is presented. However, I can anticipate most of the law and give it to you at the beginning of the trial so that you will better understand what to be looking for while the evidence is presented. If I later decide that different or additional law applies to the case, I will tell you. In any event, at the end of the evidence I will give you the final instructions on which you must base your verdict. At that time, you will have a complete written set of the instructions so you do not have to memorize what I am about to tell you..

(Continue with the Substantive law, Damages and General instructions from the applicable sections of this book, followed by the applicable parts of 202.2 through 202.5)

NOTE ON USE FOR 202.1

The Committee recommends giving the jury at the beginning of the trial a complete as possible set of instructions on the Substantive law, Damages and the General Instructions.

APPENDIX H 82

202.2 EXPLANATION OF TRIAL PROCEDURE Now that you have heard the law, I want to let you know what you can expect as the trial proceeds.

Opening Statements: In a few moments, the attorneys will each have a chance to make

what are called opening statements. In an opening statement, an attorney is allowed to give you [his] [her] views about what the evidence will be in the trial and what you are likely to see and hear in the testimony.

Evidentiary Phase: After the attorneys’ opening statements the plaintiffs will bring

their witnesses and evidence to you.


Witnesses. A witness is a person who takes an oath to tell the truth and then answers

attorneys’ questions for the jury. The answering of attorneys’ questions by witnesses is called “giving testimony.” Testimony means statements that are made when someone has sworn an oath to tell the truth.

The plaintiff’s lawyer will normally ask a witness the questions first so as to provide

you the testimony that the plaintiff’s lawyer believes is helpful to [his] [her] case. That is called direct examination. Then the defense lawyer may ask the same witness additional questions about whatever the witness has testified to. That is called cross-examination. Certain documents or other evidence may also be shown to you during direct or cross-examination. After the plaintiff’s witnesses have testified, the defendant will have the opportunity to put witnesses on the stand and go through the same process. Then the plaintiff’s lawyer gets to do cross-examination. The process is designed to be fair to both sides.

It is important that you remember that testimony comes from witnesses. The

attorneys do not give testimony and they are not themselves witnesses.

Objections: Sometimes the attorneys will disagree about the rules for trial procedure when a question is asked of a witness. When that happens, one of the lawyers may make what is called an “objection.” The rules for a trial can be complicated, and there are many reasons for the attorneys to object. You should simply wait for me to decide how to proceed. If I say that an objection is “sustained,” that means you should disregard the question and the witness may not answer the question. If I say that the objection is “overruled,” that means the witness may answer the question.

When there is an objection and I make a decision, you must not assume from that

decision that I have any particular opinion other than that the rules for conducting a trial are being correctly followed. If I say a question may not be asked or answered, you must not try to guess what the answer would have been. That is against the rules, too.

Side Bar Conferences: Sometimes I will need to speak to the attorneys about legal

elements of the case that are not appropriate for the jury to hear. The attorneys and I will try to have as few of these conferences as possible while you are giving us your valuable

APPENDIX H 83

time in the courtroom. But, if we do have to have such a conference during testimony, we will try to hold the conference at the side of my desk so that we do not have to take a break and ask you to leave the courtroom.

Recesses: Breaks in an ongoing trial are usually called “recesses.” During a recess you

still have your duties as a juror and must follow the rules, even while having coffee, at lunch, or at home.

Instructions Before Closing Arguments: After all the evidence has been presented to

you, I will instruct you on the law that you must follow. It is important that you remember these instructions to assist you in evaluating the final attorney presentations, which come next, and, later, during your deliberations, to help you correctly sort through the evidence to reach your decision.

Closing Arguments: The attorneys will then have the opportunity to make their final

presentations to you, which are called closing arguments. Final Instructions: After you have heard the closing arguments, I will instruct you

further in the law as well as explain to you the procedures you must follow to decide the case.

Deliberations: After you hear the final jury instructions, you will go to the jury room

and discuss and decide the questions I have put on your verdict form. [You will have a copy of the jury instructions to use during your discussions.] The discussions you have and the decisions you make are usually called “jury deliberations.” Your deliberations are absolutely private and neither I nor anyone else will be with you in the jury room.

Verdict: When you have finished answering the questions, you will give the verdict

form to the bailiff, and we will all return to the courtroom where your verdict will be read. When that is completed, you will be released from your assignment as a juror.

What are the rules?


Keeping an Open Mind. You must pay close attention to the testimony and other

evidence as it comes into the trial. However, you must avoid forming any final opinion or telling anyone else your views on the case until you begin your deliberations. This rule requires you to keep an open mind until you have heard all of the evidence and is designed to prevent you from influencing how your fellow jurors think until they have heard all of the evidence and had an opportunity to form their own opinions. The time and place for coming to your final opinions and speaking about them with your fellow jurors is during deliberations in the jury room, after all of the evidence has been presented, closing arguments have been made, and I have instructed you on the law. It is important that you hear all of the facts and that you hear the law and how to apply it before you start deciding anything.

Consider Only the Evidence. It is the things you hear and see in this courtroom that

matter in this trial. The law tells us that a juror can consider only the testimony and other evidence that all the other jurors have also heard and seen in the presence of the judge and

APPENDIX H 84

the lawyers. Doing anything else is wrong and is against the law. That means that you cannot do any work or investigation of your own about the case. You cannot obtain on your own any information about the case or about anyone involved in the case, from any source whatsoever, including the internet, and you cannot visit places mentioned in the trial.

Do not provide any information about this case to anyone, including friends or family

members. Do not let anyone, including the closest family members, make comments to you or ask questions about the trial. Similarly, it is important that you avoid reading any newspaper accounts or watching or listening to television or radio comments that have anything to do with this case or its subject.

No Mid-Trial Discussions. When we are in a recess, do not discuss anything about the

trial or the case with each other or with anyone else. If attorneys approach you, don’t speak with them. The law says they are to avoid contact with you. If an attorney will not look at you or speak to you, do not be offended or form a conclusion about that behavior. The attorney is not supposed to interact with jurors outside of the courtroom and is only following the rules. The attorney is not being impolite. If an attorney or anyone else does try to speak with you or says something about the case in your presence, please inform the bailiff immediately.

Only the Jury Decides. Only you get to deliberate and answer the verdict questions at

the end of the trial. I will not intrude into your deliberations at all. I am required to be neutral. You should not assume that I prefer one decision over another. You should not try to guess what my opinion is about any part of the case. It would be wrong for you to conclude that anything I say or do means that I am for one side or another in the trial. Discussing and deciding the facts is your job alone.

NOTE ON USE FOR 202.2 The publication of this recommended instruction is not intended to intrude upon the trial judge's own style and manner of delivery. It may be useful in cataloging the subjects to be covered in an introductory instruction

APPENDIX H 85


Members of the jury, you have now heard all the evidence, my instructions on the

law that you must apply in reaching your verdict and the closing arguments of the attorneys. You will shortly retire to the jury room to decide this case. [Before you do so, I have a few last instructions for you.]

You will have in the jury room all of the evidence that was received during the trial. In reaching your decision, do not do any research on your own or as a group. Do not use dictionaries, the Internet, or other reference materials. Do not investigate the case or conduct any experiments. Do not contact anyone to assist you, such as a family accountant, doctor, or lawyer. Do not visit or view the scene of any event involved in this case. If you happen to pass by the scene, do not stop or investigate. All jurors must see or hear the same evidence at the same time. Do not read, listen to, or watch any news accounts of this trial.


At the conclusion of the trial, the bailiff will collect all of your notes and

immediately destroy them. No one will ever read your notes. In reaching your verdict, do not let bias, sympathy, prejudice, public opinion or any other sentiment for or against any party to influence your decision. Your verdict must be based on the evidence that has been received and the law on which I have instructed you.





It is your duty to talk with one another in the jury room and to consider the views of

APPENDIX H 86

all the jurors. Each of you must decide the case for yourself, but only after you have considered the evidence with the other members of the jury. Feel free to change your mind if you are convinced that your position should be different. You should all try to agree. But do not give up your honest beliefs just because the others think differently. Keep an open mind so that you and your fellow jurors can easily share ideas about the case.






If any of you need to communicate with me for any reason, write me a note and give

it to the bailiff. In your note, do not disclose any vote or split or the reason for the communication.




2. Rule 2.430(l), Florida Rules of Judicial Administration, provides that at the conclusion of the

trial, the court shall collect and immediately destroy all juror notes. 3. Quotient verdict. The committee recommends that no instruction generally be given

to admonish the jury against returning a “quotient verdict.” When it is impracticable to take all of the evidence into the jury room, this instruction should be

modified accordingly.

APPENDIX H 87


09/25/2009 05:02 PM

To <[email protected]>, <[email protected]>, <[email protected]>, <[email protected]>, <[email protected]>, <[email protected]>,

cc "Jodi B Jennings" <[email protected]>

bcc

Subject FW: draft proposals to amend civil jury instructions regarding jurors' use of electronic devices

To the joint subcommittee on juror’s use of electronic devices: Attached for your review are draft proposals to amend the civil jury instructions to address jurors’ use of electronic devices. We propose revising the preliminary jury instructions given before and after the jury is sworn, as well as the closing jury instruction. Although these are drafted in the civil context, we anticipate taking the new language and adding it to the existing criminal jury instructions. For the criminal members of the committee, the civil committee currently has a proposal to reorganize the jury instructions book. This pending proposals ask the Court to renumber the current instructions and make a substantial, plain English rewrite to the closing instruction. As a result, these drafts address both the current instructions (1.0, 1.1, and 7.2), and the pending proposals to renumber and revise the instructions (to numbers 201, 202, and 700). We look forward to speaking with you all about these drafts at our next conference call on Wed. 9/30 at noon.


--------------------------------------------------------------------------------


[attachment "revisions to closing instructions (00013037).DOC" deleted by Jodi B Jennings/The Florida Bar] [attachment "revisions to preliminary civil instructions (00013036).DOC" deleted by Jodi B Jennings/The Florida Bar] [attachment "REORGANIZED BOOK--preliminary and closing instructions (00013028).DOC" deleted by Jodi B Jennings/The Florida Bar]

APPENDIX H 88

DRAFT 9/25/09

REVISIONS TO CIVIL CLOSING INSTRUCTIONS JURORS’ USE OF ELECTRONIC DEVICES

Instruction 7.2 is the current civil closing jury instruction. The civil committee has filed a report asking the Supreme Court to make a substantial, plain English rewrite of this closing instruction, which remains pending in case number SC09-02. In the reorganized civil jury instruction book, this closing instruction will be renumbered instruction 700. The pending proposed revision to instruction 700 already adds a paragraph directing jurors not to do any research about the case, including on the internet. The pending amendment also tells jurors not to communicate with others about the case. For this reason, it seems preferable to start with the language in pending amendment to create instruction 700. We added language to instruction 700 to specifically tell jurors that they cannot use electronic means to communicate about the case. Because it is unclear how the committee would like to proceed, we have proposed two versions of the amendment to instruction 7.2. Version A adds a paragraph telling jurors not to communicate about the case electronically and not to perform any research, whether in books or on-line. This is a shorter revision and might be simpler for the Court to process. Version B would bring instruction 7.2 in line with the proposal to amend instruction 700. Version B starts with the language in the pending amendment to create instruction 700, and adds language to specifically tell jurors that they cannot use electronic devices to communicate about the case. REORGANIZED JURY INSTRUCTIONS BOOK:



instructions on the law that you must apply in reaching your verdict and the closing arguments of the attorneys. You will shortly retire to

APPENDIX H 89

the jury room to decide this case. [Before you do so, I have a few last instructions for you.]

You will have in the jury room all of the evidence that was received during the trial. In reaching your decision, do not do any research on your own or as a group. Do not use dictionaries, the Internet, or any other reference materials. Do not investigate the case or conduct any experiments. Do not contact anyone to assist you, such as a family accountant, doctor, or lawyer. Do not visit or view the scene of any event involved in this case or look at maps or pictures on the internet. If you happen to pass by the scene, do not stop or investigate. All jurors must see or hear the same evidence at the same time. Do not read, listen to, or watch any news accounts of this trial.


recess or break, you are not to communicate with any person outside the jury about this case. You cannot talk about this case in person or through the telephone, writing, or electronic communication, such as a blog, twitter, email, text message, or any other means. Do not contact anyone to assist you, such as a family accountant, doctor, or lawyer. This requirement applies until you are released by me at the end of the case. If you become aware of any violation of these instructions or any other instruction I have given in this case, you must tell me by giving a note to the bailiff.



notes and immediately destroy them. No one will ever read your notes. In reaching your verdict, do not let bias, sympathy, prejudice, public opinion or any other sentiment for or against any party to influence your decision. Your verdict must be based on the evidence that has been received and the law on which I have instructed you.

APPENDIX H 90

Reaching a verdict is exclusively your job. I cannot participate in

that decision in any way and you should not guess what I think your verdict should be from something I may have said or done. You should not think that I prefer one verdict over another. Therefore, in reaching your verdict, you should not consider anything that I have said or done, except for my specific instructions to you.





[I will give you a verdict form with questions you must answer. I have already instructed you on the law that you are to use in answering these questions. You must follow my instructions and the form carefully. You must consider each question separately. Please answer the questions in the order they appear. After you answer a question, the

APPENDIX H 91

form tells you what to do next. I will now read the form to you: (read form of verdict)]












3. Quotient verdict. The committee recommends that no instruction generally be given to admonish the jury against returning a “quotient verdict.”

When it is impracticable to take all of the evidence into the jury room,

this instruction should be modified accordingly.

APPENDIX H 92

CURRENT JURY INSTRUCTIONS BOOK - CLOSING INSTRUCTION 7.2

VERSION A

[ADDS A PARAGRAPH TO CURRENT INSTRUCTION TO ADDRESS JURORS’ USE OF ELECTONRIC DEVICES.]

7.2


ELECTION OF FOREMAN; VERDICT FORMS

Any notes you have taken during the trial may be taken to the jury room for use during your discussions. Your notes are simply an aid to your own memory, and neither your notes nor those of any other juror are binding or conclusive. For this reason, you should not be unduly influenced by anyone’s notes, including your own, and you should not give greater weight to a particular piece of evidence or testimony merely because it is mentioned in a juror’s notes.



recess or break, you are not to communicate with any person outside the jury about this case in person or through telephone, writing, or electronic communication, such as a blog, twitter, email, text message, or any other means, and you are not to do any research in books, on-line, or by any other method. This requirement applies until you are released by me at the end of the case. If you become aware of any violation of this instruction or any other instruction I have given in this case, you must tell me by giving a note to the bailiff.




APPENDIX H 93






NOTES ON USE




COMMENT


APPENDIX H 94

CURRENT CIVIL JURY INSTRUCTION BOOK

INSTRUCTION 7.2 -- VERSION B

[THIS VERSION FIRST ADDS ALL THE LANGUAGE IN THE PENDING AMENDMENT TO MAKE PLAIN ENGLISH REVISIONS

TO INSTRUCTION 7.2. THEN, THE AMENDMENT ADDS LANGUAGE TO ADDRESS JURORS’ USE OF ELECTRONIC

DEVICES.]


ELECTION OF FOREMAN; VERDICT FORMS CLOSING INSTRUCTIONS


instructions on the law that you must apply in reaching your verdict and the closing arguments of the attorneys. You will shortly retire to the jury room to decide this case. [Before you do so, I have a few last instructions for you.] You will have in the jury room all of the evidence that was received during the trial. In reaching your decision, do not do any research on your own or as a group. Do not use dictionaries, the Internet, or any other reference materials. Do not investigate the case or conduct any experiments. Do not visit or view the scene of any event involved in this case or look at maps or pictures on the internet. If you happen to pass by the scene, do not stop or investigate. All jurors must see or hear the same evidence at the same time. Do not read, listen to, or watch any news accounts of this trial.

You are reminded that during your deliberations, and during any recess or break, you are not to communicate with any person outside the jury about this case. You cannot talk about this case in person or through the telephone, writing, or electronic communication, such as a blog, twitter, email, text message, or any other means. Do not contact anyone to assist you, such as a family accountant, doctor, or lawyer. This requirement applies until you are released by me at the end of the case. If you become aware of any violation of these instructions or any other instruction I have given in this case, you must tell me by giving a note to the bailiff.

Any notes you have taken during the trial may be taken to the jury room for use during your discussions. Your notes are simply an aid to your own memory, and neither your notes nor those of any other

APPENDIX H 95

juror are binding or conclusive. For this reason, you should not be unduly influenced by anyone’s notes, including your own, and you should not give greater weight to a particular piece of evidence or testimony merely because it is mentioned in a juror’s notes. Your notes are not a substitute for your own memory or that of other jurors. Instead, your verdict must result from the collective memory and judgment of all jurors based on the evidence and testimony presented during the trial. You should consider the recollections of other jurors, but you need not abandon your own recollection of the evidence and testimony merely because your recollection differs from the written notes of another juror.


notes and immediately destroy them. No one will ever read your notes. In reaching your verdict, do not let bias, sympathy, prejudice,

public opinion or any other sentiment for or against any party to influence your decision. Your verdict must be based on the evidence that has been received and the law on which I have instructed you.



Pay careful attention to all the instructions that I gave you for

that is the law that you must follow. You will have a copy of my instructions with you when you go to the jury room to deliberate. All the instructions are important and you must consider all of them together. There are no other laws that apply to this case and even if you do not agree with these laws, you must use them in reaching your decision in this case.


When you go retire to the jury room, the first thing you should do

is select one of your number to act as the foreperson to preside over your deliberations and sign your verdict[s]. Your verdict[s] must be unanimous, that is, your verdict[s] must be agreed to by each of you. choose a presiding juror to act as a foreperson during your deliberations. The presiding juror should see to it that your discussions are orderly and that everyone has a fair chance to be heard.

APPENDIX H 96

It is your duty to talk with one another in the jury room and to

consider the views of all the jurors. Each of you must decide the case for yourself, but only after you have considered the evidence with the other members of the jury. Feel free to change your mind if you are convinced that your position should be different. You should all try to agree. But do not give up your honest beliefs just because the others think differently. Keep an open mind so that you and your fellow jurors can easily share ideas about the case.


[You will be given (state the number) forms of verdict, which I shall now read to you (read form of verdict)]:

[If you find for (Claimant(s)), the plaintiff[s], your verdict will be in the following form: (read form of verdict).]

[If you find for the d(Defendant(s)), your verdict will be in the following form: (read form of verdict).] Your verdict[s] must be unanimous, that is, your verdict must be agreed to by each of you. When you have [agreed on your verdict[s]] [finished filling out the form[s]], your foreperson must write the date and sign it at the bottom and return the verdict[s] to the bailiff.

If any of you need to communicate with me for any reason, write me a note and give it to the bailiff. In your note, do not disclose any vote or split or the reason for the communication.


When you have agreed on your verdict[s], the foreperson, acting

for the jury, should date and sign the appropriate form[s] of verdict. You may now retire to consider your verdict[s].



APPENDIX H 97

- 10 -

NOTES ON USE

[SAME AS NOTES FROM INSTRUCTION 700]

APPENDIX H 98

DRAFT 9/25/2009

REVISIONS TO THE CIVIL PRELIMINARY INSTRUCTIONS JUROR USE OF ELECTRONIC DEVICES

Current civil preliminary instructions are 1.0 (given before the jury is sworn) and 1.1 (given after the jury is sworn). The civil committee has filed a report asking to reorganize the civil jury instructions book, which would make these instructions 201.2 (given before the jury is sworn) and 202.2 (given after the jury is sworn). CURRENT JURY INSTRUCTIONS:













APPENDIX H 99

Plaintiff’s Counsel: The attorney on this side of the courtroom, (introduce by name), represents (client name) and is the person who filed the lawsuit here at the courthouse. [His] [Her] job is to present [his] [her] client’s side of things to you. [He] [She] and [his] [her] client will be referred to most of the time as “the plaintiff.”












APPENDIX H 100

For this reason, you must not do any research or look up words, names, [maps] or anything else that has anything to do with this case. This includes reading newspapers or using a computer or cell phone to find out information related to this case or the people and places involved in this case, whether you are in the courthouse, at home or anywhere else.



Voir Dire:





questions of you. Then, each of the lawyers will have more specific questions that they will ask of you. After they have asked all of their questions, I will meet with them and they will tell me their choices for jurors. Each side can ask that I exclude a person from serving on a jury if they can give me a reason to believe that he or she might be unable to be fair and impartial. That is what is called a challenge for cause. The lawyers also have a certain number of what are called peremptory challenges, by which they may exclude a person from the jury without giving a reason. By this process of elimination, the remaining persons

APPENDIX H 101

are selected as the jury. It may take more than one conference among the parties, their attorneys, and me before the final selections are made.







NOTE ON USE


APPENDIX H 102


















APPENDIX H 103

















APPENDIX H 104


What are the rules?





courtroom that matter in this trial. The law tells us that a juror can consider only the testimony and other evidence that all the other jurors have also heard and seen in the presence of the judge and the lawyers. Doing anything else is wrong and is against the law. That means that you cannot do any homework or investigation of your own. You cannot obtain on your own any information about the case or about anyone involved in the case, from any source whatsoever whatsoever.,including the internet This includes using a computer or cell phone to find out information related to this case on the internet, whether you are in the courthouse, at home or anywhere else. and You cannot visit places mentioned in the trial or use the internet to look at maps or pictures to see any place discussed during trial.


with friends or family members about the case or its subject. So, do not let even the closest family members make comments to you or ask

APPENDIX H 105

questions about the trial. Similarly, it is important that you avoid reading any accounts in the newspaper accounts, or on the internet or watching or listening to television or radio comments that have anything to do with this case or its subject.


anything about the trial or the case with each other or with anyone else. In this age of electronic communication, I want to stress that just as you cannot talk about this case face-to-face, you cannot talk about the case by using an electronic device. This includes phones, computers or other electronic devices. Do not send or accept any messages, including e-mail or text messages, to or from anyone related to the case or your jury service. Do not discuss this case or ask for advice by posting information on an internet website, chat room, blog or by any other means at all.

If attorneys approach you, don’t speak with them. The law says

they are to avoid contact with you. If an attorney will not look at you or speak to you, do not be offended or form a conclusion about that behavior. The attorney is not supposed to interact with jurors outside of the courtroom and is only following the rules. The attorney is not being impolite. If an attorney or anyone else does try to speak with you or says something about the case in your presence, please inform the bailiff immediately.



NOTE ON USE The publication of this recommended instruction is not intended to intrude upon the trial judge's own style and manner of delivery. It may be useful in cataloging the subjects to be covered in an introductory instruction.

APPENDIX H 106

REORGANIZED CIVIL JURY INSTRUCTIONS BOOK

201.2 [GIVEN BEFORE JURY IS SWORN]













APPENDIX H 107

Bailiff: The person over there, (name), is the bailiff. [His] [Her] job is to maintain order and security in the courtroom. The bailiff is also my representative to the jury. Anything you need or any problems that come up for you during the course of the trial should be brought to [him] [her]. However, the bailiff cannot answer any of your questions about the case. Only I can do that.









APPENDIX H 108

202.2 EXPLANATION OF TRIAL PROCEDURE [REORGANIZED BOOK - GIVEN AFTER JURY IS SWORN]

Now that you have heard the law, I want to let you know what you can expect as the trial proceeds.













for trial procedure when a question is asked of a witness. When that happens, one of the lawyers may make what is called an “objection.” The rules for a trial can be complicated, and there are many reasons for the attorneys to object. You should simply wait for me to decide how to proceed. If I say that an objection is “sustained,” that means you should disregard the question and the witness may not answer the question. If I say that the objection is “overruled,” that means the witness may answer the question.

APPENDIX H 109

















APPENDIX H 110

What are the rules?





courtroom that matter in this trial. The law tells us that a juror can consider only the testimony and other evidence that all the other jurors have also heard and seen in the presence of the judge and the lawyers. Doing anything else is wrong and is against the law. That means that you cannot do any work or investigation of your own about the case. You cannot obtain on your own any information about the case or about anyone involved in the case, from any source whatsoever.,including the internet This includes using a computer or cell phone to find out information related to this case on the internet, whether you are in the courthouse, at home or anywhere else. and You cannot visit places mentioned in the trial or use the internet to look at maps or pictures to see any place discussed during trial.

Do not provide any information about this case to anyone,

including friends or family members. Do not let anyone, including the closest family members, make comments to you or ask questions about the trial. Similarly, it is important that you avoid reading any accounts in the newspaper accounts, or on the internet or watching or listening to television or radio comments that have anything to do with this case or

APPENDIX H 111

- 14 -

its subject.

No Mid-Trial Discussions. When we are in a recess, do not discuss anything about the trial or the case with each other or with anyone else. In this age of electronic communication, I want to stress that just as you cannot talk about this case face-to-face, you cannot talk about the case by using an electronic device. This includes phones, computers or other electronic devices. Do not send or accept any messages, including e-mail or text messages, to or from anyone related to the case or your jury service. Do not discuss this case or ask for advice by posting information on an internet website, chat room, blog or by any other means at all. If attorneys approach you, don’t speak with them. The law says they are to avoid contact with you. If an attorney will not look at you or speak to you, do not be offended or form a conclusion about that behavior. The attorney is not supposed to interact with jurors outside of the courtroom and is only following the rules. The attorney is not being impolite. If an attorney or anyone else does try to speak with you or says something about the case in your presence, please inform the bailiff immediately.




APPENDIX H 112


09/29/2009 01:34 PM


cc

bcc

Subject draft proposal from criminal instructions committee regarding jurors using electronic devices, etc.

Dear joint subcommittee: On Friday, September 25, I circulated draft preliminary and closing instructions to address jurors using electronic devices. These proposals had been revised and discussed by the drafting sub-subcommittee (me, Judge Brown, Ralph Artigliere and Bart Schneider). On Monday, Bart sent us this draft proposal to amend the criminal preliminary instructions. To bring you up to speed on our discussions in the drafting sub-subcommittee, I am forwarding you the draft criminal instructions, this email string and a second email string. Our full joint subcommittee is scheduled to meet by phone tomorrow, Wed. 9/30 at noon. We can discuss these drafts further during that call. Thanks very much. Rebecca Mercier Vargas, Esq.Board Certified Appellate LawyerKreusler-Walsh, Compiani & Vargas P.A.501 South Flagler Drive, Suite 503West Palm Beach, Florida 33401Telephone: (561) 659-5455Facsimile: (561) 820-8762

From: Ralph Artigliere [mailto:[email protected]] Sent: Tuesday, September 29, 2009 12:49 PMTo: Lucy Chernow Brown; Rebecca Mercier-Vargas; [email protected]: Re: Jury Instruction email today ----- Original Message ----- From: Lucy Chernow Brown To: Rebecca Mercier-Vargas ; [email protected] ; [email protected] Sent: Tuesday, September 29, 2009 12:37 PMSubject: RE: Jury Instruction email today I am not sure why, but I did not receive copies of any proposed instructions from Bart or the criminal SJI subcommittee. Can you forward these to me? Thank you. lcb From: Rebecca Mercier-Vargas [mailto:[email protected]] Sent: Monday, September 28, 2009 2:09 PMTo: [email protected]; [email protected]; Lucy Chernow BrownSubject: RE: Jury Instruction email today At this point, I would suggest that we forward the proposals from the criminal subcommittee to the rest of the joint subcommittee. The joint subcommittee has a call scheduled for this Wednesday, Sept. 30, at noon. Last Friday, I circulated the drafts that we discussed and revised during our drafting sub-subcommittee conference call. We can explain that although Bart had agreed with our approach and language during our call, the members of the criminal subcommittee prefer a shorter approach.

APPENDIX H 113

I agree with Ralph that it would be preferable, for several reasons, to instruct the jury on these issues using the same language for civil and criminal cases. We are on a tight timeline. We need to circulate our proposed instruction to the full civil committee by next Monday, Oct. 5. This will give all the committee members a chance to process the materials before our upcoming meeting on October 15. I am copying Joe and Jodi with this response and the Bart’s original email with the drafts attached. Rebecca Mercier Vargas, Esq.Board Certified Appellate LawyerKreusler-Walsh, Compiani & Vargas P.A.501 South Flagler Drive, Suite 503West Palm Beach, Florida 33401Telephone: (561) 659-5455Facsimile: (561) 820-8762

From: [email protected] [mailto:[email protected]] Sent: Monday, September 28, 2009 1:37 PMTo: [email protected]; [email protected]; Rebecca Mercier-VargasSubject: Re: Jury Instruction email today Ralph, Lucy, Rebecca: Our criminal subcommitee had worked up a proposal before my conference call with you last week.On the conference call, I mentioned that we thought we could propose two instructions - one for each committee.But when you guys strongly thought that there should be one proposal, I asked Les Garringer - who got in touch with our committee chair - for clarification.They both responded that the FSC asked for one proposal and that's what we should give them. I asked them to check to see if that was necessarily mandatory.Haven't heard back. When I wrote that the "feeling was just the opposite," I meant that 1) my group had no problem with separate proposals and 2) we thought that a shorter version was sufficient. I don't think there's a problem not being able to work together. There's agreement that an instruction should be read as early as possible. If the long version is the more appropriate instruction, we agree on the language of the long version. The only disagreement is about the level of detail that should be in the instruction. I was hoping we would agree on the long version at the next phone conference. Then, I was hoping to present both the short version and the long version to the whole criminal committee at our next meeting which is scheduled in December. That way, our whole committee could then vote before the January deadline. In retrospect, I should have sent you the short version before last week's phone conference. I'm

APPENDIX H 114

sorry I didn't. But it quickly became clear that you all thought a short version would be inappropriate because jurors would try to find a way around the instruction. That's a valid point and that's why I wanted the criminal committee to have both choices for the December meeting. So, me and the other two guys on the criminal subcommittee plan to join the next phone conference. Maybe by then we will have heard back that Justice Lewis asked for one proposal and that's that. Maybe Justice Lewis will say there's no problem with two proposals. Maybe there'll be no word from Justice Lewis. In any event, I don't think there will be a delay. It's not clear to me that the crim. committee will take a separate path.But on the chance that we do, it would be great if you could comment on the short version. Thanks, Bart

-----Original Message-----From: Ralph Artigliere <[email protected]>To: [email protected]; [email protected]; [email protected]: Mon, Sep 28, 2009 12:26 pmSubject: Re: Jury Instruction email todayBart, Lucy, Rebecca: I have some significant issues and suggestions with the instructions Bart attached. Rather than expressing them in writing now, however, I would like to discuss some more important issues: (1) Justice Lewis wanted us to work jointly. Specifically, Justice Lewis has requested that the civil and criminal jury instructions committees consider the problem of jurors engaging in electronic communications and jointly propose a uniform approach and jury instructions to be used in all cases. The deadline for response is January 11, 2010. This leads me to (2) Justice Lewis is right: judges would prefer to have similar or identical civil and criminal instructions when the law is the same because to do otherwise can be somewhat confusing for the judge (sometimes I tried criminal and civil cases one day apart and standard instructions tend to imprint for a judge) or more importantly for the juror who sits on a criminal venire then a civil case in the same week and hears/reads two different instructions. And (3) If we start working on separate competing drafts proposed by the two committees and still try to comply with Justice Lewis' direction, it will be very difficult to come up with good instructions by the deadline, believe me... it will be a lot more work and it would remove the opportunity for full SJI committee input at the October meeting. I thought that's why we had delegates from criminal working together with us... so we could work jointly. If the criminal subcommittee's feelings (about what?) are "the opposite" of ours (what does that mean?), why did we not hear them during the first joint call or during our call last week? Why are we hearing this a few days before our subcommittee deadline to submit a proposal to our entire SJI committee? We have a full meeting coming up in Jacksonville which we were working towards. We invited any or all of your committee to come to our meeting. A diversion at this point is going to seriously hamper our schedule. If someone is going to tell Justice Lewis the two committees can't or won't work together, it would be personally embarassing to me. Wouldn't it be to you?

APPENDIX H 115

That being said, I am willing to apply whatever time is necessary to get this back on track. I would not withhold my comments on what you attached, even if the criminal committee wants to proceed separately, as I think there are legal an drafting problems to address. I would share my comments with you if you guys are going to take a separate path... if you want them. If you do take a separate path, it will be against my personal belief and vote that we should proceed jointly to develop uniform instructions as DIRECTED by the Supreme Court. Rebecca, I sent this just to our sub-sub-group because those are the only folks Bart included. It will be up to you if you want to involve Joe or others in the mix. Ralph ----- Original Message ----- From: [email protected] To: [email protected] ; [email protected] ; [email protected] Sent: Monday, September 28, 2009 10:34 AMSubject: Fwd: (no subject) The criminal subcommittee came up with our own instruction (before my conference call with you).The feeling in the criminal subgroup is exactly the opposite of yours.I'm not sure where that leaves us, but please take a look at the attachments.-Bart

-----Original Message-----From: Frank Migliore, Jr. <[email protected]>To: [email protected]; [email protected]: Mon, Sep 28, 2009 10:17 amSubject: (no subject)Bart: I attach 1.1 and 1.2

Frank Migliore, Jr.

Please be advised that Florida has a broad public records law, and all correspondence to me via email may be subject to disclosure. Under Florida records law (SB80 effective 7-01-06), email addresses are public records. If you do not want your email address released in response to a public records request, do not send public records request to this entity. Instead, contact this office by phone or in writing.[attachment "Criminal 2.1.doc" deleted by Jodi B Jennings/The Florida Bar] [attachment "Criminal 1.1.doc" deleted by Jodi B Jennings/The Florida Bar]

APPENDIX H 116

1,1 Introduction At some point during the introductory remarks, read to all jurors in the courtroom. You shall not conduct any independent research on the internet, by computer or by means of any electronic device or in any other manner about anyone or anything related to this case. You shall not electronically communicate or post any communications about your participation in this case by means of any electronic medium until after a verdict is accepted or you are given specific permission to do so by the Court. You must not discuss this case with any person and you must not speak with the attorneys, the witnesses, or the defendant about any subject until your deliberations are finished. Further, you must not e-mail or otherwise electronically contact other people about this case nor seek their opinions, advice or even thoughts on the issues that may come before you. Comment The Committee on Standard Jury Instructions Criminal Cases decided this instruction should be read as early as possible to potential jurors because of the ease of internet access. This instruction was adopted in 2010.

APPENDIX H 117

2.1 PRELIMINARY INSTRUCTIONS Ladies and gentlemen of the jury: You have been selected and sworn as the jury to try the case of State of Florida v. (defendant). This is a criminal case. (Defendant) is charged with (crime charged). The definition of the elements of (crime charged) will be explained to you later. It is your solemn responsibility to determine if the State has proved its accusation beyond a reasonable doubt against (defendant). Your verdict must be based solely on the evidence, or lack of evidence, and the law. The [information] [indictment] is not evidence and is not to be considered by you as any proof of guilt. It is the judge's responsibility to decide which laws apply to this case and to explain those laws to you. It is your responsibility to decide what the facts of this case may be, and to apply the law to those facts. It is your solemn responsibility to determine if the State has proved its accusation beyond a reasonable doubt against (defendant). Your verdict must be based solely on the evidence, or lack of evidence, and the law. Thus, the province of the jury and the province of the court are well defined, and they do not overlap. This is one of the fundamental principles of our system of justice. Before proceeding further, it will be helpful if you understand how a trial is conducted. At the beginning of the trial, the attorneys will have an opportunity, if they wish, to make an opening statement. The opening statement gives the attorneys a chance to tell you what evidence they believe will be presented during the trial. What the lawyers say is not evidence, and you are not to consider it as such. Following the opening statements, witnesses will be called to testify under oath. They will be examined and cross-examined by the attorneys. Documents and other exhibits also may be produced as evidence.

APPENDIX H 118

After the evidence has been presented, the attorneys will have the opportunity to make their final argument. Following the arguments by the attorneys, the court will instruct you on the law applicable to the case. After the instructions are given [the alternate juror will be released and] you will then retire to consider your verdict. You should not form any definite or fixed opinion on the merits of the case until you have heard all the evidence, the argument of the lawyers and the instructions on the law by the judge. Until that time, you should not discuss the case among yourselves. During the course of the trial, the court may take recesses, during which you will be permitted to separate and go about your personal affairs. During these recesses you will not discuss the case with anyone nor permit anyone to say anything to you or in your presence about the case. If anyone attempts to say anything to you or in your presence about this case, tell [him] [her] that you are on the jury trying the case and ask [him] [her] to stop. If [he] [she] persists, leave [him] [her] at once and immediately report the matter to the bailiff, who will advise me. The case must be tried by you only on the evidence presented during the trial in your presence and in the presence of the defendant, the attorneys and the judge. Jurors must not conduct any investigation of their own. Accordingly, you must not visit any of the places described in the evidence, and you must not read nor listen to any reports about the case. You shall not conduct any independent research on the internet, by computer or by means of any electronic device or in any other manner about anyone or anything related to this case. You shall not electronically communicate or post any communications about your participation in this case by means of any electronic medium until after a verdict is accepted or you are given specific permission to do so by the Court. Further, yYou must not discuss this case with any person and you must not speak with the attorneys, the witnesses, or the defendant about any subject until your deliberations are finished. Further, you must not e-mail or otherwise electronically contact other people about this case nor seek their opinions, advice or even thoughts on the issues before you.

APPENDIX H 119

Give if defendant requests. In every criminal proceeding a defendant has the absolute right to remain silent. At no time is it the duty of a defendant to prove [his] [her] innocence. From the exercise of a defendant's right to remain silent, a jury is not permitted to draw any inference of guilt, and the fact that a defendant did not take the witness stand must not influence your verdict in any manner whatsoever. The attorneys are trained in the rules of evidence and trial procedure, and it is their duty to make all objections they feel are proper. When an objection is made you should not speculate on the reason why it is made; likewise, when an objection is sustained, or upheld, by me, you must not speculate on what might have occurred had the objection not been sustained, nor what a witness might have said had [he] [she] been permitted to answer. Comment This instruction was adopted in 1981 and amended in 2010.

APPENDIX H 120


09/29/2009 01:35 PM


cc

bcc

Subject FW: Jury Instruction email today

This is a second email between the drafting sub-subcommittee discussing the draft proposals. Rebecca Mercier Vargas, Esq.Board Certified Appellate LawyerKreusler-Walsh, Compiani & Vargas P.A.501 South Flagler Drive, Suite 503West Palm Beach, Florida 33401Telephone: (561) 659-5455Facsimile: (561) 820-8762

From: Lucy Chernow Brown [mailto:[email protected]] Sent: Tuesday, September 29, 2009 12:40 PMTo: Rebecca Mercier-Vargas; [email protected]; [email protected]: RE: Jury Instruction email today PS: I also agree that it would be preferable to create a single standard instruction for both criminal and civil cases, and I think we are obligated to do our very best to carry out the specific request of Justice Lewis. lcb From: Rebecca Mercier-Vargas [mailto:[email protected]] Sent: Monday, September 28, 2009 2:09 PMTo: [email protected]; [email protected]; Lucy Chernow BrownSubject: RE: Jury Instruction email today At this point, I would suggest that we forward the proposals from the criminal subcommittee to the rest of the joint subcommittee. The joint subcommittee has a call scheduled for this Wednesday, Sept. 30, at noon. Last Friday, I circulated the drafts that we discussed and revised during our drafting sub-subcommittee conference call. We can explain that although Bart had agreed with our approach and language during our call, the members of the criminal subcommittee prefer a shorter approach. I agree with Ralph that it would be preferable, for several reasons, to instruct the jury on these issues using the same language for civil and criminal cases. We are on a tight timeline. We need to circulate our proposed instruction to the full civil committee by next Monday, Oct. 5. This will give all the committee members a chance to process the materials before our upcoming meeting on October 15. I am copying Joe and Jodi with this response and the Bart’s original email with the drafts attached. Rebecca Mercier Vargas, Esq.Board Certified Appellate LawyerKreusler-Walsh, Compiani & Vargas P.A.501 South Flagler Drive, Suite 503West Palm Beach, Florida 33401

APPENDIX H 121

Telephone: (561) 659-5455Facsimile: (561) 820-8762

From: [email protected] [mailto:[email protected]] Sent: Monday, September 28, 2009 1:37 PMTo: [email protected]; [email protected]; Rebecca Mercier-VargasSubject: Re: Jury Instruction email today Ralph, Lucy, Rebecca: Our criminal subcommitee had worked up a proposal before my conference call with you last week.On the conference call, I mentioned that we thought we could propose two instructions - one for each committee.But when you guys strongly thought that there should be one proposal, I asked Les Garringer - who got in touch with our committee chair - for clarification.They both responded that the FSC asked for one proposal and that's what we should give them. I asked them to check to see if that was necessarily mandatory.Haven't heard back. When I wrote that the "feeling was just the opposite," I meant that 1) my group had no problem with separate proposals and 2) we thought that a shorter version was sufficient. I don't think there's a problem not being able to work together. There's agreement that an instruction should be read as early as possible. If the long version is the more appropriate instruction, we agree on the language of the long version. The only disagreement is about the level of detail that should be in the instruction. I was hoping we would agree on the long version at the next phone conference. Then, I was hoping to present both the short version and the long version to the whole criminal committee at our next meeting which is scheduled in December. That way, our whole committee could then vote before the January deadline. In retrospect, I should have sent you the short version before last week's phone conference. I'm sorry I didn't. But it quickly became clear that you all thought a short version would be inappropriate because jurors would try to find a way around the instruction. That's a valid point and that's why I wanted the criminal committee to have both choices for the December meeting. So, me and the other two guys on the criminal subcommittee plan to join the next phone conference. Maybe by then we will have heard back that Justice Lewis asked for one proposal and that's that. Maybe Justice Lewis will say there's no problem with two proposals. Maybe there'll be no word from Justice Lewis. In any event, I don't think there will be a delay. It's not clear to me that the crim. committee will take a separate path.But on the chance that we do, it would be great if you could comment on the short version.

APPENDIX H 122

Thanks, Bart

-----Original Message-----From: Ralph Artigliere <[email protected]>To: [email protected]; [email protected]; [email protected]: Mon, Sep 28, 2009 12:26 pmSubject: Re: Jury Instruction email todayBart, Lucy, Rebecca: I have some significant issues and suggestions with the instructions Bart attached. Rather than expressing them in writing now, however, I would like to discuss some more important issues: (1) Justice Lewis wanted us to work jointly. Specifically, Justice Lewis has requested that the civil and criminal jury instructions committees consider the problem of jurors engaging in electronic communications and jointly propose a uniform approach and jury instructions to be used in all cases. The deadline for response is January 11, 2010. This leads me to (2) Justice Lewis is right: judges would prefer to have similar or identical civil and criminal instructions when the law is the same because to do otherwise can be somewhat confusing for the judge (sometimes I tried criminal and civil cases one day apart and standard instructions tend to imprint for a judge) or more importantly for the juror who sits on a criminal venire then a civil case in the same week and hears/reads two different instructions. And (3) If we start working on separate competing drafts proposed by the two committees and still try to comply with Justice Lewis' direction, it will be very difficult to come up with good instructions by the deadline, believe me... it will be a lot more work and it would remove the opportunity for full SJI committee input at the October meeting. I thought that's why we had delegates from criminal working together with us... so we could work jointly. If the criminal subcommittee's feelings (about what?) are "the opposite" of ours (what does that mean?), why did we not hear them during the first joint call or during our call last week? Why are we hearing this a few days before our subcommittee deadline to submit a proposal to our entire SJI committee? We have a full meeting coming up in Jacksonville which we were working towards. We invited any or all of your committee to come to our meeting. A diversion at this point is going to seriously hamper our schedule. If someone is going to tell Justice Lewis the two committees can't or won't work together, it would be personally embarassing to me. Wouldn't it be to you? That being said, I am willing to apply whatever time is necessary to get this back on track. I would not withhold my comments on what you attached, even if the criminal committee wants to proceed separately, as I think there are legal an drafting problems to address. I would share my comments with you if you guys are going to take a separate path... if you want them. If you do take a separate path, it will be against my personal belief and vote that we should proceed jointly to develop uniform instructions as DIRECTED by the Supreme Court. Rebecca, I sent this just to our sub-sub-group because those are the only folks Bart included. It will be up to you if you want to involve Joe or others in the mix. Ralph ----- Original Message ----- From: [email protected]

APPENDIX H 123

To: [email protected] ; [email protected] ; [email protected] Sent: Monday, September 28, 2009 10:34 AMSubject: Fwd: (no subject) The criminal subcommittee came up with our own instruction (before my conference call with you).The feeling in the criminal subgroup is exactly the opposite of yours.I'm not sure where that leaves us, but please take a look at the attachments.-Bart


Frank Migliore, Jr.


APPENDIX H 124


09/29/2009 01:36 PM


cc

bcc

Subject jury instructions addressing jurors using electronic devices

This is a third email string between the drafting sub-subcommittee discussing the draft instructions. Rebecca Mercier Vargas, Esq.Board Certified Appellate LawyerKreusler-Walsh, Compiani & Vargas P.A.501 South Flagler Drive, Suite 503West Palm Beach, Florida 33401Telephone: (561) 659-5455Facsimile: (561) 820-8762

From: Ralph Artigliere [mailto:[email protected]] Sent: Tuesday, September 29, 2009 11:07 AMTo: Rebecca Mercier-VargasSubject: Fw: (no subject) FYI----- Original Message ----- From: [email protected] To: [email protected] Sent: Tuesday, September 29, 2009 10:51 AMSubject: Re: (no subject) Ralph-I agree.There's no desire to work separately.There's only a disagreement as to length.-Bart

-----Original Message-----From: Ralph Artigliere <[email protected]>To: [email protected]: Rebecca Mercier-Vargas <[email protected]>Sent: Tue, Sep 29, 2009 10:25 amSubject: Re: (no subject)Bart, If we do not work together as requested by Justice Lewis, it will be a problem. I really do not understand the desire to work separately. If you guys will attend our teleconferences and our SJI meeting in October, you may be able to convince others that

APPENDIX H 125

shorter is better. You may also prevail on the argument that the civil and criminal language do not need to be identical. However, I am speaking as a former judge, and I can tell you if there are two versions it can cause some confusion for jurors or judges, plus some judges will prefer one over the other and use it all the time, whether civil or criminal case. Is that a bad thing? I think it is, but I am a purist and feel that if we develop standard instructions judges should use them. Some judges are good communicators and good at free lancing. Some are not. When you open the door to letting the judge what standard instructions they want to use and which ones they want to modify or not use, it is a slippery slope. Not just my view, it has been the prevailing view on the SJI civil committee. All of that said, if we have a shorter and longer version, the core language should be identical if we can work that out. Let's try to get the job done as requested. If there is fundamental disagreement that has some valid basis, we can address how to handle that. Ralph ----- Original Message ----- From: [email protected] To: [email protected] Sent: Monday, September 28, 2009 10:17 PMSubject: Re: (no subject) Ralph-I don't think it's that important for the crim/civil juror to hear the same instruction.I think a juror who is going to do his own research is likely to do so no matter what the judge says.I think the long one is too wordy. In my group of three, one person is very much in favor of the short version; I favor the short version but it's clear the FSC asked for one proposal and all of you prefer the long version; and one person thinks both proposals are fine and doesn't care which one is approved. I would like to give the full criminal committee both choices, but I don't want any delay and I have not heard back as to whether that would be acceptable to the FSC. So that's my problem as of tonight.I guess it's best for me to call Les Garringer tomorrow and maybe I can get that settled before the wednesday phone conference.-Bart

-----Original Message-----From: Ralph Artigliere <[email protected]>To: [email protected]: Mon, Sep 28, 2009 1:55 pmSubject: Re: (no subject)Bart,

APPENDIX H 126

Do you agree that a juror sitting on a criminal venire and civil venire in the same week should hear identical instruction from the two judges? Ralph----- Original Message ----- From: [email protected] To: [email protected] ; [email protected] ; [email protected] Sent: Monday, September 28, 2009 10:34 AMSubject: Fwd: (no subject) The criminal subcommittee came up with our own instruction (before my conference call with you).The feeling in the criminal subgroup is exactly the opposite of yours.I'm not sure where that leaves us, but please take a look at the attachments.-Bart


Frank Migliore, Jr.

APPENDIX H 127

1,1 Introduction At some point during the introductory remarks, read to all jurors in the courtroom. You shall not conduct any independent research on the internet, by computer or by means of any electronic device or in any other manner about anyone or anything related to this case. You shall not electronically communicate or post any communications about your participation in this case by means of any electronic medium until after a verdict is accepted or you are given specific permission to do so by the Court. You must not discuss this case with any person and you must not speak with the attorneys, the witnesses, or the defendant about any subject until your deliberations are finished. Further, you must not e-mail or otherwise electronically contact other people about this case nor seek their opinions, advice or even thoughts on the issues that may come before you. Comment The Committee on Standard Jury Instructions Criminal Cases decided this instruction should be read as early as possible to potential jurors because of the ease of internet access. This instruction was adopted in 2010.

APPENDIX H 128

2.1 PRELIMINARY INSTRUCTIONS Ladies and gentlemen of the jury: You have been selected and sworn as the jury to try the case of State of Florida v. (defendant). This is a criminal case. (Defendant) is charged with (crime charged). The definition of the elements of (crime charged) will be explained to you later. It is your solemn responsibility to determine if the State has proved its accusation beyond a reasonable doubt against (defendant). Your verdict must be based solely on the evidence, or lack of evidence, and the law. The [information] [indictment] is not evidence and is not to be considered by you as any proof of guilt. It is the judge's responsibility to decide which laws apply to this case and to explain those laws to you. It is your responsibility to decide what the facts of this case may be, and to apply the law to those facts. It is your solemn responsibility to determine if the State has proved its accusation beyond a reasonable doubt against (defendant). Your verdict must be based solely on the evidence, or lack of evidence, and the law. Thus, the province of the jury and the province of the court are well defined, and they do not overlap. This is one of the fundamental principles of our system of justice. Before proceeding further, it will be helpful if you understand how a trial is conducted. At the beginning of the trial, the attorneys will have an opportunity, if they wish, to make an opening statement. The opening statement gives the attorneys a chance to tell you what evidence they believe will be presented during the trial. What the lawyers say is not evidence, and you are not to consider it as such. Following the opening statements, witnesses will be called to testify under oath. They will be examined and cross-examined by the attorneys. Documents and other exhibits also may be produced as evidence.

APPENDIX H 129

After the evidence has been presented, the attorneys will have the opportunity to make their final argument. Following the arguments by the attorneys, the court will instruct you on the law applicable to the case. After the instructions are given [the alternate juror will be released and] you will then retire to consider your verdict. You should not form any definite or fixed opinion on the merits of the case until you have heard all the evidence, the argument of the lawyers and the instructions on the law by the judge. Until that time, you should not discuss the case among yourselves. During the course of the trial, the court may take recesses, during which you will be permitted to separate and go about your personal affairs. During these recesses you will not discuss the case with anyone nor permit anyone to say anything to you or in your presence about the case. If anyone attempts to say anything to you or in your presence about this case, tell [him] [her] that you are on the jury trying the case and ask [him] [her] to stop. If [he] [she] persists, leave [him] [her] at once and immediately report the matter to the bailiff, who will advise me. The case must be tried by you only on the evidence presented during the trial in your presence and in the presence of the defendant, the attorneys and the judge. Jurors must not conduct any investigation of their own. Accordingly, you must not visit any of the places described in the evidence, and you must not read nor listen to any reports about the case. You shall not conduct any independent research on the internet, by computer or by means of any electronic device or in any other manner about anyone or anything related to this case. You shall not electronically communicate or post any communications about your participation in this case by means of any electronic medium until after a verdict is accepted or you are given specific permission to do so by the Court. Further, yYou must not discuss this case with any person and you must not speak with the attorneys, the witnesses, or the defendant about any subject until your deliberations are finished. Further, you must not e-mail or otherwise electronically contact other people about this case nor seek their opinions, advice or even thoughts on the issues before you.

APPENDIX H 130

Give if defendant requests. In every criminal proceeding a defendant has the absolute right to remain silent. At no time is it the duty of a defendant to prove [his] [her] innocence. From the exercise of a defendant's right to remain silent, a jury is not permitted to draw any inference of guilt, and the fact that a defendant did not take the witness stand must not influence your verdict in any manner whatsoever. The attorneys are trained in the rules of evidence and trial procedure, and it is their duty to make all objections they feel are proper. When an objection is made you should not speculate on the reason why it is made; likewise, when an objection is sustained, or upheld, by me, you must not speculate on what might have occurred had the objection not been sustained, nor what a witness might have said had [he] [she] been permitted to answer. Comment This instruction was adopted in 1981 and amended in 2010.

APPENDIX H 131


09/30/2009 01:54 PM


cc

bcc

Subject juror use of electronic devices: draft "long" version of core instruction

Attached are the revisions to the “long” version of the core preliminary and closing instructions that we just discussed during our conference call. We agreed to add language to the preliminary instructions to direct jurors not to watch TV reports and specifically mention that they should not be using “Google” to research on the internet. Please make sure you agree with the wording of these revisions: (1) in the preliminary (before) instruction, the second sentence has been revised; (2) in the preliminary (after) instruction, the sentence beginning “This includes finding out information” has been revised; and (3) in the closing instruction, the first and second sentences have been revised (deleting “and during any recess or break” from the first sentence and adding it to the beginning of the second sentence). Let me know if these changes do not reflect our discussions or if you see anything additional that needs to be changed. Thanks very much. I enjoyed speaking with all of you on this today. Rebecca Rebecca Mercier Vargas, Esq.Board Certified Appellate LawyerKreusler-Walsh, Compiani & Vargas P.A.501 South Flagler Drive, Suite 503West Palm Beach, Florida 33401Telephone: (561) 659-5455Facsimile: (561) 820-8762[attachment "core 'long' version of preliminary and closing instructions (00013062).DOC" deleted by Jodi

B Jennings/The Florida Bar]

APPENDIX H 132

DRAFT 9/30/09 JUROR USE OF ELECTRONIC DEVICES “LONG” VERSION OF CORE INSTRUCTIONS to be added to existing civil and criminal instructions. (1) PRELIMINARY INSTRUCTION (GIVEN BEFORE JURY SWORN)

You must not do any research or look up words, names, [maps] or

anything else that has anything to do with this case. This includes reading newspapers, watching television or using a cell phone or computer to research on the internet or “Google” to find out information related to this case or the people and places involved in this case, whether you are in the courthouse, at home or anywhere else.


must not provide any information about this case to anyone, including friends and family members, until you have been discharged from jury duty by the judge. This includes talking face-to-face or on the phone. In this age of electronic communication, I want to stress that you cannot use electronic devices or computers to talk about this case, including "tweeting," texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, to or from anyone about this case or your jury service. You must not disclose your thoughts about this case over the internet or ask for advice on how to decide this case. All of us are depending on you to follow the law, so that there will be a fair and legal resolution to this case. (2) PRELIMINARY INTRUCTION (GIVEN AFTER JURY SWORN)

Consider Only the Evidence. It is the things you hear and see in this courtroom that matter in this trial. The law tells us that a juror can consider only the testimony and other evidence that all the other jurors have also heard and seen in the presence of the judge and the lawyers. Doing anything else is wrong and is against the law. That means that

APPENDIX H 133

you cannot do any homework or investigation of your own. You cannot obtain on your own any information about the case or about anyone involved in the case, from any source whatsoever.,including the internet This includes finding out information related to this case by watching television or using a computer or cell phone to research or “Google” on the internet, whether you are in the courthouse, at home or anywhere else. and You cannot visit places mentioned in the trial or use the internet to look at maps or pictures to see any place discussed during trial.


with friends or family members about the case or its subject. So, do not let even the closest family members make comments to you or ask questions about the trial. Similarly, it is important that you avoid reading any accounts in the newspaper accounts, or on the internet or watching or listening to television or radio comments that have anything to do with this case or its subject.

No Mid-Trial Discussions. When we are in a recess, do not discuss anything about the trial or the case with each other or with anyone else. In this age of electronic communication, I want to stress that just as you cannot talk about this case face-to-face, you cannot talk about the case by using an electronic device. This includes phones, computers or other electronic devices. Do not send or accept any messages, including e-mail or text messages, to or from anyone related to the case or your jury service. Do not discuss this case or ask for advice by posting information on an internet website, chat room, blog or by any other means at all. (3) CLOSING INSTRUCTION

You will have in the jury room all of the evidence that was received during the trial. In reaching your decision, do not do any research on your own or as a group. Do not use dictionaries, the Internet, or any other reference materials. Do not investigate the case or conduct any experiments. Do not contact anyone to assist you, such as a family accountant, doctor, or lawyer. Do not visit or view the scene of any event involved in this case or look at maps or pictures on the internet. If you happen to pass by the scene, do not stop or investigate. All jurors must see or hear the same evidence at the same time. Do not

APPENDIX H 134

read, listen to, or watch any news accounts of this trial. You are reminded that during your deliberations, you are not to

communicate with any person outside the jury about this case. This means that during your deliberations and during your breaks, you cannot talk about this case in person or through the telephone, writing, or electronic communication, such as a blog, twitter, email, text message, or any other means. Do not contact anyone to assist you, such as a family member, accountant, doctor, or lawyer. This requirement applies until you are released by me at the end of the case. If you become aware of any violation of these instructions or any other instruction I have given in this case, you must tell me by giving a note to the bailiff.

APPENDIX H 135


09/30/2009 04:49 PM

To "Ralph Artigliere" <[email protected]>, "Boyer, Tyrie" <[email protected]>, <[email protected]>, <[email protected]>, <[email protected]>,

cc

bcc

Subject RE: juror use of electronic devices: draft "long" version of core instruction

I also agree that the extra words are helpful. Both the preliminary (after) and the closing instructions do tell jurors not to research on the internet. In the preliminary (after) instruction, the first paragraph (“consider only the evidence”) tells the jurors not to research on the internet. The paragraph titled “no mid-trial discussions” deals more with juror communications with electronic devices, etc. In the closing instruction, the third sentence tells jurors not to do any internet research. This language is not underlined because it is already in the civil instructions (actually, it is in the proposal to amend the civil closing instruction that is already pending before the Supreme Court). Let me know if you think these sentences are strong enough or if further revision of the preliminary (after) and closing instructions are needed. Rebecca Mercier Vargas, Esq.Board Certified Appellate LawyerKreusler-Walsh, Compiani & Vargas P.A.501 South Flagler Drive, Suite 503West Palm Beach, Florida 33401Telephone: (561) 659-5455Facsimile: (561) 820-8762

From: Ralph Artigliere [mailto:[email protected]] Sent: Wednesday, September 30, 2009 4:43 PMTo: Boyer, Tyrie; [email protected]; Rebecca Mercier-Vargas; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Campo, Allan; [email protected]; [email protected]; Jodi B JenningsSubject: Re: juror use of electronic devices: draft "long" version of core instruction I too think Blaise's points have merit and would support them. Ralph----- Original Message ----- From: Boyer, Tyrie To: [email protected] ; Rebecca Mercier-Vargas ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; Campo, Allan ; [email protected] ; [email protected] ; Jodi B Jennings Sent: Wednesday, September 30, 2009 4:27 PMSubject: RE: juror use of electronic devices: draft "long" version of core instruction

APPENDIX H 136

I agree with the extra words.

From: Blaise Trettis [mailto:[email protected]] Sent: Wednesday, September 30, 2009 4:15 PMTo: 'Rebecca Mercier-Vargas'; [email protected]; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; [email protected]; [email protected]; 'Campo, Allan'; [email protected]; [email protected]; 'Jodi B Jennings'Subject: RE: juror use of electronic devices: draft "long" version of core instruction After seeing the words "or Google" in print and reading the revised proposal, I'll go on record as being against this new language. Google is just one of many internet search engines. It is redundant to instruct jurors that they are not to do research on the internet and then say "or Google." When one "Googles" they are doing internet research. I think that anyone who uses a computer knows that Google is just a search engine. Stated differently, does anyone think that there are people who use Google to do their internet searches who don't realize that they are doing internet research when they "Google"? I think that the inclusion of the words "or Google" takes the "dumbing down" of jury instructions too far. Since it is likely that the "long" version will be the proposal to go to the Supreme Court, I propose the following additional language to the second sentence to make it just a little longer: " You must not do any research or look up words, names, maps, or anything else that may have anything to do with this case. This includes reading newspapers, watching television or using a computer, cell phone, or any other electronic device to do research on the internet to find out information related to this case or the people and places involved in this case, whether you are in the courthouse, at home, or anywhere else." The inclusion of the words "or any other electronic device" takes care of BlackBerrys, PDA's of all different names and yet-to-be-invented devices that will be put on the market in the future. The same change that I have proposed above, if made, would apply to the corresponding sentence in the preliminary instruction given after the jury is sworn. I notice that the No Mid-Trial Discussions and the Closing Instruction do not warn the jurors to refrain from doing internet research. Instead, these proposals only warn the jurors to refrain from communicating electronically about the case. I don't know if this was intentional or an oversight. In my opinion it would be a good idea to include the sentence I discussed above in these two instructions with perhaps some introductory language like: " You are also reminded that you must not do any research or look up words, names, maps,...." .

From: Rebecca Mercier-Vargas [mailto:[email protected]] Sent: Wednesday, September 30, 2009 1:54 PMTo: [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Campo, Allan; [email protected]; [email protected]; Jodi B JenningsSubject: juror use of electronic devices: draft "long" version of core instruction Attached are the revisions to the “long” version of the core preliminary and closing instructions that we just discussed during our conference call. We agreed to add language to the preliminary instructions to direct jurors not to watch TV reports and specifically mention that they should not be using “Google” to research on the internet.

APPENDIX H 137

Please make sure you agree with the wording of these revisions: (1) in the preliminary (before) instruction, the second sentence has been revised; (2) in the preliminary (after) instruction, the sentence beginning “This includes finding out information” has been revised; and (3) in the closing instruction, the first and second sentences have been revised (deleting “and during any recess or break” from the first sentence and adding it to the beginning of the second sentence). Let me know if these changes do not reflect our discussions or if you see anything additional that needs to be changed. Thanks very much. I enjoyed speaking with all of you on this today. Rebecca Rebecca Mercier Vargas, Esq.Board Certified Appellate LawyerKreusler-Walsh, Compiani & Vargas P.A.501 South Flagler Drive, Suite 503West Palm Beach, Florida 33401Telephone: (561) 659-5455Facsimile: (561) 820-8762

APPENDIX H 138

"Joseph Amos" <[email protected]>

09/30/2009 05:08 PM

To "Boyer, Tyrie" <[email protected]>, <[email protected]>, "Rebecca Mercier-Vargas" <[email protected]>, <[email protected]>, <[email protected]>,

cc

bcc


also agree Joseph L. Amos, Jr.Attorney at LawFisher, Rushmer, Werrenrath,Dickson, Talley & Dunlap, P.A.P.O. Box 712Orlando, FL 32802-0712(407) 843-2111 - main office(407) 535-4868 - direct telephone(407) 535-4795 - direct fax

From: Boyer, Tyrie [mailto:[email protected]] Sent: Wednesday, September 30, 2009 4:27 PMTo: [email protected]; Rebecca Mercier-Vargas; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Campo, Allan; Joseph Amos; [email protected]; Jodi B JenningsSubject: RE: juror use of electronic devices: draft "long" version of core instruction

I agree with the extra words.

From: Blaise Trettis [mailto:[email protected]] Sent: Wednesday, September 30, 2009 4:15 PMTo: 'Rebecca Mercier-Vargas'; [email protected]; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; [email protected]; [email protected]; 'Campo, Allan'; [email protected]; [email protected]; 'Jodi B Jennings'Subject: RE: juror use of electronic devices: draft "long" version of core instruction

After seeing the words "or Google" in print and reading the revised proposal, I'll go on record as being against this new language. Google is just one of many internet search engines. It is redundant to instruct jurors that they are not to do research on the internet and then say "or Google." When one "Googles" they are doing internet research. I think that anyone who uses a computer knows that Google is just a search engine. Stated differently, does anyone think that there are people who use Google to do their internet searches who don't realize that they are doing internet research when they "Google"? I think that the inclusion of the words "or Google" takes the "dumbing down" of jury instructions too far. Since it is likely that the "long" version will be the proposal to go to the Supreme Court, I propose the following additional language to the second sentence to make it just a little longer: " You must not do any research or look up words, names, maps, or anything else that may have anything to do with this case. This includes reading newspapers, watching television or using a computer, cell phone, or any other electronic device to do research on the internet to find out information related to this case or the people and places involved in this case, whether you are in the courthouse, at home, or anywhere else."

APPENDIX H 139

The inclusion of the words "or any other electronic device" takes care of BlackBerrys, PDA's of all different names and yet-to-be-invented devices that will be put on the market in the future. The same change that I have proposed above, if made, would apply to the corresponding sentence in the preliminary instruction given after the jury is sworn. I notice that the No Mid-Trial Discussions and the Closing Instruction do not warn the jurors to refrain from doing internet research. Instead, these proposals only warn the jurors to refrain from communicating electronically about the case. I don't know if this was intentional or an oversight. In my opinion it would be a good idea to include the sentence I discussed above in these two instructions with perhaps some introductory language like: " You are also reminded that you must not do any research or look up words, names, maps,...." .

From: Rebecca Mercier-Vargas [mailto:[email protected]] Sent: Wednesday, September 30, 2009 1:54 PMTo: [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Campo, Allan; [email protected]; [email protected]; Jodi B JenningsSubject: juror use of electronic devices: draft "long" version of core instruction

Attached are the revisions to the “long” version of the core preliminary and closing instructions that we just discussed during our conference call. We agreed to add language to the preliminary instructions to direct jurors not to watch TV reports and specifically mention that they should not be using “Google” to research on the internet. Please make sure you agree with the wording of these revisions: (1) in the preliminary (before) instruction, the second sentence has been revised; (2) in the preliminary (after) instruction, the sentence beginning “This includes finding out information” has been revised; and (3) in the closing instruction, the first and second sentences have been revised (deleting “and during any recess or break” from the first sentence and adding it to the beginning of the second sentence). Let me know if these changes do not reflect our discussions or if you see anything additional that needs to be changed. Thanks very much. I enjoyed speaking with all of you on this today. Rebecca Rebecca Mercier Vargas, Esq.Board Certified Appellate LawyerKreusler-Walsh, Compiani & Vargas P.A.501 South Flagler Drive, Suite 503West Palm Beach, Florida 33401Telephone: (561) 659-5455Facsimile: (561) 820-8762

CONFIDENTIAL : The information in this email (including any attachments) is confidential and may be privileged. If you are not the intended recipient, you may not and must not read, print, forward, use or disseminate the

APPENDIX H 140

information contained herein. Although this email (and any attachments) are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is free of viruses or defects and no responsibility is accepted by the sender for any loss or damage arising or resulting in any way from its receipt or use. If you are not the intended recipient of this message, please reply to the sender and include this message and then delete this message from your inbox and your archive and/or discarded messages files. Any unintended disclosure of legally privileged and/or confidential information that may have occurred is inadvertent and does not constitute a waiver of any such privilege or confidentiality. Thank you.



APPENDIX H 141

"Alan F. Wagner" <[email protected]>

09/30/2009 04:57 PM

To "Boyer Tyrie" <[email protected]>, <[email protected]>, "Rebecca Mercier-Vargas" <[email protected]>, <[email protected]>, <[email protected]>,

cc

bcc

Subject Re: juror use of electronic devices: draft "long" version of core instruction

I like extra words. I am not wedded to "Google" (or yahoo) as long as it is clear that they cannot perform Internet searches (searches may be a better term than "research") about any issues in the case. Alan Wagner -------Original Message------- From: Ralph ArtigliereDate: 9/30/2009 4:43:21 PMTo: Boyer, Tyrie; [email protected]; Rebecca Mercier-Vargas; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Campo, Allan; [email protected]; [email protected]; Jodi B JenningsSubject: Re: juror use of electronic devices: draft "long" version of core instruction I too think Blaise's points have merit and would support them. Ralph----- Original Message ----- From: Boyer, Tyrie To: [email protected] ; Rebecca Mercier-Vargas ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; Campo, Allan ; [email protected] ; [email protected] ; Jodi B Jennings Sent: Wednesday, September 30, 2009 4:27 PMSubject: RE: juror use of electronic devices: draft "long" version of core instruction I agree with the extra words.

From: Blaise Trettis [mailto:[email protected]] Sent: Wednesday, September 30, 2009 4:15 PMTo: 'Rebecca Mercier-Vargas'; [email protected]; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; [email protected]; [email protected]; 'Campo, Allan'; [email protected]; [email protected]; 'Jodi B Jennings'Subject: RE: juror use of electronic devices: draft "long" version of core instruction

After seeing the words "or Google" in print and reading the revised proposal, I'll go on record as being against this new language. Google is just one of many internet search engines. It is redundant to instruct jurors that they are not to do research on the internet and then say "or Google." When one "Googles" they

APPENDIX H 142

are doing internet research. I think that anyone who uses a computer knows that Google is just a search engine. Stated differently, does anyone think that there are people who use Google to do their internet searches who don't realize that they are doing internet research when they "Google"? I think that the inclusion of the words "or Google" takes the "dumbing down" of jury instructions too far. Since it is likely that the "long" version will be the proposal to go to the Supreme Court, I propose the following additional language to the second sentence to make it just a little longer: " You must not do any research or look up words, names, maps, or anything else that may have anything to do with this case. This includes reading newspapers, watching television or using a computer, cell phone, or any other electronic device to do research on the internet to find out information related to this case or the people and places involved in this case, whether you are in the courthouse, at home, or anywhere else." The inclusion of the words "or any other electronic device" takes care of BlackBerrys, PDA's of all different names and yet-to-be-invented devices that will be put on the market in the future. The same change that I have proposed above, if made, would apply to the corresponding sentence in the preliminary instruction given after the jury is sworn. I notice that the No Mid-Trial Discussions and the Closing Instruction do not warn the jurors to refrain from doing internet research. Instead, these proposals only warn the jurors to refrain from communicating electronically about the case. I don't know if this was intentional or an oversight. In my opinion it would be a good idea to include the sentence I discussed above in these two instructions with perhaps some introductory language like: " You are also reminded that you must not do any research or look up words, names, maps,...." .


Attached are the revisions to the “long” version of the core preliminary and closing instructions that we just discussed during our conference call. We agreed to add language to the preliminary instructions to direct jurors not to watch TV reports and specifically mention that they should not be using “Google” to research on the internet.

Please make sure you agree with the wording of these revisions: (1) in the preliminary (before) instruction, the second sentence has been revised; (2) in the preliminary (after) instruction, the sentence beginning “This includes finding out information” has been revised; and (3) in the closing instruction, the first and second sentences have been revised (deleting “and during any recess or break” from the first sentence and adding it to the beginning of the second sentence). Let me know if these changes do not reflect our discussions or if you see anything additional that needs to be changed.

Thanks very much. I enjoyed speaking with all of you on this today.

APPENDIX H 143

Rebecca

Rebecca Mercier Vargas, Esq.

Board Certified Appellate Lawyer

Kreusler-Walsh, Compiani & Vargas P.A.

501 South Flagler Drive, Suite 503

West Palm Beach, Florida 33401

Telephone: (561) 659-5455

Facsimile: (561) 820-8762

APPENDIX H 144


10/01/2009 05:04 PM

To "Alan F. Wagner" <[email protected]>, "Boyer Tyrie" <[email protected]>, <[email protected]>, <[email protected]>, <[email protected]>,

cc <[email protected]>, "Barton, James " <[email protected]>

bcc


Attached is a single file, with all four core instructions that we have been discussing. I revised both the preliminary instructions to incorporate the change Blaise suggested (removing the specific reference to “google”). In the second preliminary instruction (given after the jury is sworn), I also moved up the language from the paragraph “no mid-trial discussions” to the prior paragraphs so that all the language addressing electronic devices is together.






Telephone: (561) 659-5455

Facsimile: (561) 820-8762

From: Alan F. Wagner [mailto:[email protected]] Sent: Wednesday, September 30, 2009 4:58 PMTo: Boyer Tyrie; [email protected]; Rebecca Mercier-Vargas; [email protected]; [email protected]; [email protected]; [email protected]; Campo Allan; [email protected]; [email protected]; Jodi B Jennings; Ralph ArtigliereSubject: Re: juror use of electronic devices: draft "long" version of core instruction

I like extra words. I am not wedded to "Google" (or yahoo) as long as it is clear that they cannot perform Internet searches (searches may be a better term than "research") about any issues in the case. Alan Wagner -------Original Message-------

APPENDIX H 145

From: Ralph ArtigliereDate: 9/30/2009 4:43:21 PMTo: Boyer, Tyrie; [email protected]; Rebecca Mercier-Vargas; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Campo, Allan; [email protected]; [email protected]; Jodi B JenningsSubject: Re: juror use of electronic devices: draft "long" version of core instruction I too think Blaise's points have merit and would support them. Ralph----- Original Message ----- From: Boyer, Tyrie To: [email protected] ; Rebecca Mercier-Vargas ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; Campo, Allan ; [email protected] ; [email protected] ; Jodi B Jennings Sent: Wednesday, September 30, 2009 4:27 PMSubject: RE: juror use of electronic devices: draft "long" version of core instruction I agree with the extra words.

From: Blaise Trettis [mailto:[email protected]] Sent: Wednesday, September 30, 2009 4:15 PMTo: 'Rebecca Mercier-Vargas'; [email protected]; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; [email protected]; [email protected]; 'Campo, Allan'; [email protected]; [email protected]; 'Jodi B Jennings'Subject: RE: juror use of electronic devices: draft "long" version of core instruction After seeing the words "or Google" in print and reading the revised proposal, I'll go on record as being against this new language. Google is just one of many internet search engines. It is redundant to instruct jurors that they are not to do research on the internet and then say "or Google." When one "Googles" they are doing internet research. I think that anyone who uses a computer knows that Google is just a search engine. Stated differently, does anyone think that there are people who use Google to do their internet searches who don't realize that they are doing internet research when they "Google"? I think that the inclusion of the words "or Google" takes the "dumbing down" of jury instructions too far. Since it is likely that the "long" version will be the proposal to go to the Supreme Court, I propose the following additional language to the second sentence to make it just a little longer: " You must not do any research or look up words, names, maps, or anything else that may have anything to do with this case. This includes reading newspapers, watching television or using a computer, cell phone, or any other electronic device to do research on the internet to find out information related to this case or the people and places involved in this case, whether you are in the courthouse, at home, or anywhere else." The inclusion of the words "or any other electronic device" takes care of BlackBerrys, PDA's of all different names and yet-to-be-invented devices that will be put on the market in the future. The same change that I have proposed above, if made, would apply to the corresponding sentence in the preliminary instruction given after the jury is sworn. I notice that the No Mid-Trial Discussions and the Closing Instruction do not warn the jurors to refrain from

APPENDIX H 146

doing internet research. Instead, these proposals only warn the jurors to refrain from communicating electronically about the case. I don't know if this was intentional or an oversight. In my opinion it would be a good idea to include the sentence I discussed above in these two instructions with perhaps some introductory language like: " You are also reminded that you must not do any research or look up words, names, maps,...." .


Attached are the revisions to the “long” version of the core preliminary and closing instructions that we just discussed during our conference call. We agreed to add language to the preliminary instructions to direct jurors not to watch TV reports and specifically mention that they should not be using “Google” to research on the internet.

Please make sure you agree with the wording of these revisions: (1) in the preliminary (before) instruction, the second sentence has been revised; (2) in the preliminary (after) instruction, the sentence beginning “This includes finding out information” has been revised; and (3) in the closing instruction, the first and second sentences have been revised (deleting “and during any recess or break” from the first sentence and adding it to the beginning of the second sentence). Let me know if these changes do not reflect our discussions or if you see anything additional that needs to be changed.

Thanks very much. I enjoyed speaking with all of you on this today.

Rebecca





APPENDIX H 147


Telephone: (561) 659-5455

Facsimile: (561) 820-8762

APPENDIX H 148

DRAFT 10/1/09 INSTRUCTION TO BE GIVEN DURING QUALIFICATION OF POTENTIAL JURORS

Many of you have cell phones, computers, and other electronic devices.

Even though you have not yet been selected as a juror, you should know that there are some strict rules that you must follow about using your cell phones, electronic devices and computers. You cannot use your cell phones or computers to search the internet or to find out anything related to the cases that you might be called upon to serve as a juror.

Between now and when you have been discharged from jury duty by the

judge, you must not provide or receive any information about your jury service to anyone, including friends, co-workers, and family members. You may tell those who need to know where you are that you have been called for jury duty. If you are picked for a jury, you may tell people that you have been picked for a jury and how long the case may take. However, you cannot give anyone any information about the case itself or the parties or the judge. You should also warn people not to try to say anything to you or write to you about your jury service or the case. This includes communicating face-to-face or on the phone or computer. In this age of electronic communication, I want to stress that you cannot use electronic devices or computers to talk about this case, including "tweeting," texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, about your jury service. You must not disclose your thoughts about the case over the internet or ask for advice on how to decide the case.

During the case and at the end of the case, the judge will give you specific

instructions about these matters and will tell you when you are released from this instruction. All of us are depending on you to follow the law, so that there will be a fair and legal resolution of every case.

APPENDIX H 149


10/01/2009 02:47 PM

To "Amy Pratt" <[email protected]>, <[email protected]>, <[email protected]>, <[email protected]>, <[email protected]>,

cc "Jodi B Jennings" <[email protected]>, "Tracy Gunn" <[email protected]>, <[email protected]>, <[email protected]>,

bcc

Subject Draft instruction on juror use of electronic devices to be given during jury qualifications

During our joint subcommittee call on Wednesday, we agreed to propose core instructions addressing jurors using electronic devices that would be given at four different times: (1) during the qualifications period, which is before the jurors are sent up to a specific courtroom; (2) in the courtroom at the beginning of voir dire; (3) after voir dire ends and the jury is sworn; and (4) just before closing arguments. Yesterday, I circulated the “long” version of the draft instructions to be given after the jurors reach the courtroom. The attached is Ralph’s draft of the instruction to be given to jurors while they are still in the jury qualifications room and before they have been sent to a courtroom to begin voir dire. Many of our members feel that it is very important to tell jurors from the outset of their service that they cannot use electronic devices to find out information about the case or to communicate about the case. Many potential jurors have internet access during the qualifications period. In Palm Beach County, jurors waiting to be sent to a specific courtroom have wireless internet access and some free-standing computers with internet access. The jurors also have cell phones and other personal electronic devices. We have debated whether it is outside the scope of our committees’ work to propose a standard instruction to be given during the qualifications period. However, if our committees jointly provide the Court with suggested language to use during jury qualification, it will at least help get the ball rolling. The Court can always decide our proposal needs further study and send it to OSCA or another committee, perhaps the rules of judicial administration. Please review this draft carefully and let us know if you have any suggestions or revisions. Ralph and I were both struggling with the wording in the last sentence in the first paragraph. It is a little awkward, but we wanted to make clear that even though jurors in the qualifications period do not know what case they might be called to serve on, they should not be using electronic devices to find out any information related to a potential case. Also, I would appreciate it if everyone reviewed this draft for consistency with the other draft instructions I circulated yesterday. While the language may need to be a little different in each instruction due to the timing of when it is given, the core language should be similar. Thanks very much. I look forward to speaking with you all on Monday. Rebecca Mercier Vargas, Esq.Board Certified Appellate LawyerKreusler-Walsh, Compiani & Vargas P.A.501 South Flagler Drive, Suite 503West Palm Beach, Florida 33401Telephone: (561) 659-5455Facsimile: (561) 820-8762[attachment "jury qualifications instruction (00013073).DOC" deleted by Jodi B Jennings/The Florida Bar]

APPENDIX H 150

DRAFT 10/1/09




devices. Even though you have not yet been selected as a juror, you should know that there are some strict rules that you must follow about using your cell phones, electronic devices and computers. You cannot use your cell phones or computers to search the internet or to find out anything related to the cases that you might be called upon to serve as a juror.


by the judge, you must not provide or receive any information about your jury service to anyone, including friends, co-workers, and family members. You may tell those who need to know where you are that you have been called for jury duty. If you are picked for a jury, you may tell people that you have been picked for a jury and how long the case may take. However, you cannot give anyone any information about the case itself or the parties or the judge. You should also warn people not to try to say anything to you or write to you about your jury service or the case. This includes communicating face-to-face or on the phone or computer. In this age of electronic communication, I want to stress that you cannot use electronic devices or computers to talk about this case, including "tweeting," texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, about your jury service. You must not disclose your thoughts about the case over the internet or ask for advice on how to decide the case.

During the case and at the end of the case, the judge will give you

specific instructions about these matters and will tell you when you are released from this instruction. All of us are depending on you to follow the law, so that there will be a fair and legal resolution of every case.

APPENDIX H 151

(2) PRELIMINARY INSTRUCTION (GIVEN BEFORE JURY SWORN)


anything else that may have anything to do with this case. This includes reading newspapers, watching television or using a computer, cell phone, or any other electronic device to do research on the internet to find out information related to this case or the people and places involved in this case, whether you are in the courthouse, at home, or anywhere else.


must not provide any information about this case to anyone, including friends and family members, until you have been discharged from jury duty by the judge. This includes talking face-to-face or on the phone. In this age of electronic communication, I want to stress that you cannot use electronic devices or computers to talk about this case, including "tweeting," texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, to or from anyone about this case or your jury service. You must not disclose your thoughts about this case over the internet or ask for advice on how to decide this case. All of us are depending on you to follow the law, so that there will be a fair and legal resolution to this case. (3) PRELIMINARY INTRUCTION (GIVEN AFTER JURY

SWORN)

Consider Only the Evidence. It is the things you hear and see in this courtroom that matter in this trial. The law tells us that a juror can consider only the testimony and other evidence that all the other jurors have also heard and seen in the presence of the judge and the lawyers. Doing anything else is wrong and is against the law. That means that you cannot do any homework or investigation of your own. You cannot obtain on your own any information about the case or about anyone involved in the case, from any source whatsoever.,including the internet This includes reading newspapers, watching television or using a computer, cell phone, or any other electronic device to do research on

APPENDIX H 152

the internet to find out information related to this case or the people and places involved in this case, whether you are in the courthouse, at home, or anywhere else. You cannot visit places mentioned in the trial or use the internet to look at maps or pictures to see any place discussed during trial.


with friends or family members about the case or its subject. So, do not let even the closest family members make comments to you or ask questions about the trial. In this age of electronic communication, I want to stress that just as you cannot talk about this case face-to-face, you cannot talk about the case by using an electronic device. This includes phones, computers or other electronic devices. Do not send or accept any messages, including e-mail or text messages, to or from anyone related to the case or your jury service. Do not discuss this case or ask for advice by posting information on an internet website, chat room, blog or by any other means at all. Similarly, it is important that you avoid reading any newspaper accounts, or watching or listening to television or radio comments that have anything to do with this case or its subject. (4) CLOSING INSTRUCTION

You will have in the jury room all of the evidence that was received during the trial. In reaching your decision, do not do any research on your own or as a group. Do not use dictionaries, the Internet, or any other reference materials. Do not investigate the case or conduct any experiments. Do not contact anyone to assist you, such as a family accountant, doctor, or lawyer. Do not visit or view the scene of any event involved in this case or look at maps or pictures on the internet. If you happen to pass by the scene, do not stop or investigate. All jurors must see or hear the same evidence at the same time. Do not read, listen to, or watch any news accounts of this trial.


communicate with any person outside the jury about this case. This means that during your deliberations and during your breaks, you cannot talk about this case in person or through the telephone, writing, or electronic communication, such as a blog, twitter, email, text message, or any other means. Do not contact anyone to assist you, such

APPENDIX H 153

as a family member, accountant, doctor, or lawyer. This requirement applies until you are released by me at the end of the case. If you become aware of any violation of these instructions or any other instruction I have given in this case, you must tell me by giving a note to the bailiff.

APPENDIX H 154


10/02/2009 04:02 PM

To Rebecca Mercier-Vargas <[email protected]>, Amy Pratt <[email protected]>, "[email protected]" <[email protected]>, "[email protected]"

cc Jodi B Jennings <[email protected]>, Tracy Gunn <[email protected]>, "[email protected]" <[email protected]>, "Campo, Allan"

bcc

Subject RE: Draft instruction on juror use of electronic devices to be given during jury qualifications

Everyone, Sorry to be so late in responding. I finally got my homicide case to the jury, and had the opportunity to review the drafts. I agree with the "long" version at this point. My only suggestion is toward the end of the CLOSING INSTRUCTION, to change the wording in the next‐to‐last sentence to the active voice, i.e. It now reads: "This requirement applies until you are discharged by me.." I think it would better read as, "until I discharge you". I am ok with the other changes. On Ralph's draft instruction to be given during qualification of potential jurors, I am still trying to see if I can make any useful suggestions about the wording in the last paragraph. I am also thinking that the reference to "not giving anyone any information about the case itself, or the parties or the judge," might be changed to…" the case itself, or any of the people involved in the case," so as to be more inclusive, i.e. attorneys, witnesses etc. The latest disaster article Ralph sent should be more inspiration to all of us to get something worked out to meet Justice Lewis' deadline. I also now agree that Ralph has it right about jurors being told to report violations, even though I was not happy with that concept at first. Have a good weekend. I look forward to speaking with you all on Monday. lcb From: Rebecca Mercier-Vargas [mailto:[email protected]] Sent: Thursday, October 01, 2009 2:48 PMTo: Amy Pratt; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]: Jodi B Jennings; Tracy Gunn; Lucy Chernow Brown; [email protected]; Campo, AllanSubject: Draft instruction on juror use of electronic devices to be given during jury qualifications During our joint subcommittee call on Wednesday, we agreed to propose core instructions addressing jurors using electronic devices that would be given at four different times: (1) during the qualifications period, which is before the jurors are sent up to a specific courtroom; (2) in the courtroom at the beginning of voir dire; (3) after voir dire ends and the jury is sworn; and (4) just before closing arguments. Yesterday, I circulated the “long” version of the draft instructions to be given after the jurors reach the courtroom. The attached is Ralph’s draft of the instruction to be given to jurors while they are still in the jury qualifications room and before they have been sent to a courtroom to begin voir dire. Many of our members feel that it is very important to tell jurors from the outset of their service that they cannot use electronic devices to find out information about the case or to communicate about the case. Many potential jurors have internet access during the qualifications period. In Palm Beach County, jurors waiting to be sent to a specific courtroom have wireless internet access and some free-standing computers with internet access. The jurors also have cell phones and other personal electronic devices. We have debated whether it is outside the scope of our committees’ work to propose a standard instruction to be given during the qualifications period. However, if our committees jointly provide the

APPENDIX H 155

Court with suggested language to use during jury qualification, it will at least help get the ball rolling. The Court can always decide our proposal needs further study and send it to OSCA or another committee, perhaps the rules of judicial administration. Please review this draft carefully and let us know if you have any suggestions or revisions. Ralph and I were both struggling with the wording in the last sentence in the first paragraph. It is a little awkward, but we wanted to make clear that even though jurors in the qualifications period do not know what case they might be called to serve on, they should not be using electronic devices to find out any information related to a potential case. Also, I would appreciate it if everyone reviewed this draft for consistency with the other draft instructions I circulated yesterday. While the language may need to be a little different in each instruction due to the timing of when it is given, the core language should be similar. Thanks very much. I look forward to speaking with you all on Monday. Rebecca Mercier Vargas, Esq.Board Certified Appellate LawyerKreusler-Walsh, Compiani & Vargas P.A.501 South Flagler Drive, Suite 503West Palm Beach, Florida 33401Telephone: (561) 659-5455Facsimile: (561) 820-8762


APPENDIX H 156


10/02/2009 04:07 PM

To "[email protected]" <[email protected]>, "'Rebecca Mercier-Vargas'" <[email protected]>, "[email protected]" <[email protected]>,

cc

bcc


On further review, I do think Blaise's suggestions are good ones, well‐thought out and well expressed. lcb From: Blaise Trettis [mailto:[email protected]] Sent: Wednesday, September 30, 2009 4:15 PMTo: 'Rebecca Mercier-Vargas'; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; 'Campo, Allan'; [email protected]; Lucy Chernow Brown; 'Jodi B Jennings'Subject: RE: juror use of electronic devices: draft "long" version of core instruction After seeing the words "or Google" in print and reading the revised proposal, I'll go on record as being against this new language. Google is just one of many internet search engines. It is redundant to instruct jurors that they are not to do research on the internet and then say "or Google." When one "Googles" they are doing internet research. I think that anyone who uses a computer knows that Google is just a search engine. Stated differently, does anyone think that there are people who use Google to do their internet searches who don't realize that they are doing internet research when they "Google"? I think that the inclusion of the words "or Google" takes the "dumbing down" of jury instructions too far. Since it is likely that the "long" version will be the proposal to go to the Supreme Court, I propose the following additional language to the second sentence to make it just a little longer: " You must not do any research or look up words, names, maps, or anything else that may have anything to do with this case. This includes reading newspapers, watching television or using a computer, cell phone, or any other electronic device to do research on the internet to find out information related to this case or the people and places involved in this case, whether you are in the courthouse, at home, or anywhere else." The inclusion of the words "or any other electronic device" takes care of BlackBerrys, PDA's of all different names and yet-to-be-invented devices that will be put on the market in the future. The same change that I have proposed above, if made, would apply to the corresponding sentence in the preliminary instruction given after the jury is sworn. I notice that the No Mid-Trial Discussions and the Closing Instruction do not warn the jurors to refrain from doing internet research. Instead, these proposals only warn the jurors to refrain from communicating electronically about the case. I don't know if this was intentional or an oversight. In my opinion it would be a good idea to include the sentence I discussed above in these two instructions with perhaps some introductory language like: " You are also reminded that you must not do any research or look up words, names, maps,...." .

APPENDIX H 157

From: Rebecca Mercier-Vargas [mailto:[email protected]] Sent: Wednesday, September 30, 2009 1:54 PMTo: [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Campo, Allan; [email protected]; [email protected]; Jodi B JenningsSubject: juror use of electronic devices: draft "long" version of core instruction Attached are the revisions to the “long” version of the core preliminary and closing instructions that we just discussed during our conference call. We agreed to add language to the preliminary instructions to direct jurors not to watch TV reports and specifically mention that they should not be using “Google” to research on the internet. Please make sure you agree with the wording of these revisions: (1) in the preliminary (before) instruction, the second sentence has been revised; (2) in the preliminary (after) instruction, the sentence beginning “This includes finding out information” has been revised; and (3) in the closing instruction, the first and second sentences have been revised (deleting “and during any recess or break” from the first sentence and adding it to the beginning of the second sentence). Let me know if these changes do not reflect our discussions or if you see anything additional that needs to be changed. Thanks very much. I enjoyed speaking with all of you on this today. Rebecca Rebecca Mercier Vargas, Esq.Board Certified Appellate LawyerKreusler-Walsh, Compiani & Vargas P.A.501 South Flagler Drive, Suite 503West Palm Beach, Florida 33401Telephone: (561) 659-5455Facsimile: (561) 820-8762


APPENDIX H 158


10/05/2009 02:43 PM

To "Jodi B Jennings" <[email protected]>, "Tracy Gunn" <[email protected]>, <[email protected]>, <[email protected]>,

cc

bcc

Subject revised set of core instructions to address jurors using electronic devices

I enjoyed speaking with everyone on the joint subcommittee today! I’ve attached the revised core instructions. This draft incorporates all the changes we discussed in our call today. I would appreciate it if everyone read this draft closely and let us know immediately if you see any problems. In particular, please read each draft instruction for consistency. Here are the highlights of the revisions:In the first instruction, given during the juror qualifications period: In the first paragraph, we revised the second and third sentence. In the second paragraph, we revised all the sentences following the sentence that begins, “However, you must not…” In the third paragraph, we inserted a paragraph break to begin this paragraph. We also revised the last sentence of the third paragraph. In the fourth paragraph, we revised the first line. In the fourth instruction, given before closing arguments: In the second paragraph, we revised the third sentence, which begins “Do not contact anyone to assist you” to delete the rest of the sentence (“such as a family member …”). We revised the next sentence, which starts “This requirement applies” and added the words “until I discharge you” instead of “until you are released by me.” We also made some changes throughout the instructions:-changed “cannot” to “must not.” Civil members please note that our existing preliminary instructions use the “cannot” language. -took the quotation marks off ‘tweeting’-capitalized Internet-hyphenated e-mail Please let me know if I missed any changes that we discussed or if anything else catches your eye. I would appreciate hearing from everyone by the end of the day tomorrow, if possible, so we can get ready to circulate this draft to the full civil committee. Thanks again. I’ve enjoyed working with you all on this.


--------------------------------------------------------------------------------


APPENDIX H 159

APPENDIX H 160

DRAFT 10/5/09




devices. Even though you have not yet been selected as a juror, there are some strict rules that you must follow about using your cell phones, electronic devices and computers. You must not use your cell phones or computers to search the Internet or to find out anything related to your service as a juror or any cases in the courthouse.


by the judge, you must not provide or receive any information about your jury service to anyone, including friends, co-workers, and family members. You may tell those who need to know where you are that you have been called for jury duty. If you are picked for a jury, you may tell people that you have been picked for a jury and how long the case may take. However, you must not give anyone any information about the case itself or the people involved in the case. You must also warn people not to try to say anything to you or write to you about your jury service or the case. This includes face-to-face, the phone or computer communications.




specific instructions about these matters. A judge will tell you when you are released from this instruction. All of us are depending on you to follow the law, so that there will be a fair and legal resolution of every

APPENDIX H 161

(2) PRELIMINARY INSTRUCTION (GIVEN BEFORE JURY SWORN)




must not provide any information about this case to anyone, including friends and family members, until you have been discharged from jury duty by the judge. This includes talking face-to-face or on the phone. In this age of electronic communication, I want to stress that you must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, to or from anyone about this case or your jury service. You must not disclose your thoughts about this case over the Internet or ask for advice on how to decide this case. All of us are depending on you to follow the law, so that there will be a fair and legal resolution to this case. (3) PRELIMINARY INTRUCTION (GIVEN AFTER JURY

SWORN)

Consider Only the Evidence. It is the things you hear and see in this courtroom that matter in this trial. The law tells us that a juror can consider only the testimony and other evidence that all the other jurors have also heard and seen in the presence of the judge and the lawyers. Doing anything else is wrong and is against the law. That means that you must cannot do any homework or investigation of your own. You must cannot obtain on your own any information about the case or about anyone involved in the case, from any source

APPENDIX H 162

whatsoever.,including the internet This includes reading newspapers, watching television or using a computer, cell phone, or any other electronic device to do research on the Internet to find out information related to this case or the people and places involved in this case, whether you are in the courthouse, at home, or anywhere else. You must cannot visit places mentioned in the trial or use the Internet to look at maps or pictures to see any place discussed during trial.


any sort with friends or family members about the case or its subject. So, do not let even the closest family members make comments to you or ask questions about the trial. In this age of electronic communication, I want to stress that just as you must not talk about this case face-to-face, you must not talk about the case by using an electronic device. You must not use phones, computers or other electronic devices to communicate. Do not send or accept any messages, including e-mail or text messages, to or from anyone related to the case or your jury service. Do not discuss this case or ask for advice by posting information on an Internet website, chat room, blog or by any other means at all. Similarly, it is important that you avoid reading any newspaper accounts, or watching or listening to television or radio comments that have anything to do with this case or its subject. (4) CLOSING INSTRUCTION



communicate with any person outside the jury about this case. This means that during your deliberations and during your breaks, you must not talk about this case in person or through the telephone,

APPENDIX H 163

- 4 -

text message, or any other means. Do not contact anyone to assist you. This requirement applies until I discharge you at the end of the case. If you become aware of any violation of these instructions or any other instruction I have given in this case, you must tell me by giving a note to the bailiff.

APPENDIX H 164

"Ralph Artigliere" <[email protected]>

10/06/2009 12:21 PM

To "Rebecca Mercier-Vargas" <[email protected]>, <[email protected]>, <[email protected]>, <[email protected]>, <[email protected]>,

cc

bcc

Subject Re: Jury Instruction proposal

Hello, all. Great work on the instructions, although our work is now subject to the crucibles of full committee review. I wanted to address a subject of some potential controversy. If it does not cause a stir, so be it. But I expect some (especially judges) may be concerned with telling jurors to report to them if the law given by the court is not followed. The idea of asking jurors to write inform the judge of improper conduct is not without precedent (see below), but it is uncomfortable . As I said above, this part of the instruction may not be a point of contention, so I would not raise it. I am just giving my input so you know where I will be coming from if the issue comes up. My thoughts on the subject were withheld during the telephone call because everyone seemed to be on board. I believe that the jury's duty collectively and individually is to render a verdict "in accordance with the law" as stated in their oath, which is a verdict that is accomplished within the judge's instructions. If that does not happen, I believe it is the juror's duty to inform the judge. The recent Naples case is a perfect example as to why jurors are the last line of defense against misconduct. If jurors do not tell the judge, there is no way to know someone violated the law and an injustice will occur. The debate may be whether the judge should do this or leave it to the lawyers to "deputize" jurors in voir dire or in closing or both. When I was a judge, I always felt more in control when I dealt with sensitive issues like this myself rather than leaving it to the lawyers, which risks more discomfort or worse due to overstatement or mis-statement of the law. That's why I think a standard instruction is needed. I think most judges will understand the rationale for this instruction. Sure, it's uncomfortable (hard?) to rat on a fellow juror, and that makes it uncomfortable for the judge to tell them it's their duty. However, I think it is unlawful to render a

verdict that is not "according to the law and evidence" in violation of the juror's oath. I believe unlawful trumps uncomfortable or difficult. If it is a difficult duty... that is all the more need for a clear instruction from the judge. Asking jurors to inform the court if violations occur is not without precedent. We already tell jurors to inform the court if someone approaches them or if they overhear something. The highlighted language in the New York Preliminary Instruction (attached) is not on all fours, but it is very direct language broaching the similar duty to inform. The highlighted Connecticut language is more applicable to reportable juror conduct. One other point: I have suggested in the past that jurors be given their assembly room instruction in writing as well as orally. I think it would be a good teaching tool and something for the judge to refer to if a violation occurs. "We not only told you not to do this, we gave it to you in writing..." I feel it's necessary because misconduct is now prevalent and it is insidious, but I have no idea if the S.C. would go for this. I may suggest to the big committees that we recommend this in our report. Sitting on the SJI Committee has always given me the feeling I was doing some good for the system. But this is one area that I think we have the opportunity to do a lot of good toward the fairness of trials for those who come to court, criminal and civil. Thanks for listening/reading. It is a privilege working with all of you on this. Ralph

APPENDIX H 165

----- Original Message ----- From: Rebecca Mercier-Vargas To: [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; Campo, Allan ; [email protected] ; [email protected] ; Jodi B Jennings Sent: Tuesday, September 29, 2009 1:35 PMSubject: FW: Jury Instruction email todayThis is a second email between the drafting sub-subcommittee discussing the draft proposals. Rebecca Mercier Vargas, Esq.Board Certified Appellate LawyerKreusler-Walsh, Compiani & Vargas P.A.501 South Flagler Drive, Suite 503West Palm Beach, Florida 33401Telephone: (561) 659-5455Facsimile: (561) 820-8762

From: Lucy Chernow Brown [mailto:[email protected]] Sent: Tuesday, September 29, 2009 12:40 PMTo: Rebecca Mercier-Vargas; [email protected]; [email protected]: RE: Jury Instruction email today PS: I also agree that it would be preferable to create a single standard instruction for both criminal and civil cases, and I think we are obligated to do our very best to carry out the specific request of Justice Lewis. lcb From: Rebecca Mercier-Vargas [mailto:[email protected]] Sent: Monday, September 28, 2009 2:09 PMTo: [email protected]; [email protected]; Lucy Chernow BrownSubject: RE: Jury Instruction email today At this point, I would suggest that we forward the proposals from the criminal subcommittee to the rest of the joint subcommittee. The joint subcommittee has a call scheduled for this Wednesday, Sept. 30, at noon. Last Friday, I circulated the drafts that we discussed and revised during our drafting sub-subcommittee conference call. We can explain that although Bart had agreed with our approach and language during our call, the members of the criminal subcommittee prefer a shorter approach. I agree with Ralph that it would be preferable, for several reasons, to instruct the jury on these issues using the same language for civil and criminal cases. We are on a tight timeline. We need to circulate our proposed instruction to the full civil committee by next Monday, Oct. 5. This will give all the committee members a chance to process the materials before our upcoming meeting on October 15. I am copying Joe and Jodi with this response and the Bart’s original email with the drafts attached. Rebecca Mercier Vargas, Esq.Board Certified Appellate LawyerKreusler-Walsh, Compiani & Vargas P.A.

APPENDIX H 166

501 South Flagler Drive, Suite 503West Palm Beach, Florida 33401Telephone: (561) 659-5455Facsimile: (561) 820-8762

From: [email protected] [mailto:[email protected]] Sent: Monday, September 28, 2009 1:37 PMTo: [email protected]; [email protected]; Rebecca Mercier-VargasSubject: Re: Jury Instruction email today Ralph, Lucy, Rebecca: Our criminal subcommitee had worked up a proposal before my conference call with you last week.On the conference call, I mentioned that we thought we could propose two instructions - one for each committee.But when you guys strongly thought that there should be one proposal, I asked Les Garringer - who got in touch with our committee chair - for clarification.They both responded that the FSC asked for one proposal and that's what we should give them. I asked them to check to see if that was necessarily mandatory.Haven't heard back. When I wrote that the "feeling was just the opposite," I meant that 1) my group had no problem with separate proposals and 2) we thought that a shorter version was sufficient. I don't think there's a problem not being able to work together. There's agreement that an instruction should be read as early as possible. If the long version is the more appropriate instruction, we agree on the language of the long version. The only disagreement is about the level of detail that should be in the instruction. I was hoping we would agree on the long version at the next phone conference. Then, I was hoping to present both the short version and the long version to the whole criminal committee at our next meeting which is scheduled in December. That way, our whole committee could then vote before the January deadline. In retrospect, I should have sent you the short version before last week's phone conference. I'm sorry I didn't. But it quickly became clear that you all thought a short version would be inappropriate because jurors would try to find a way around the instruction. That's a valid point and that's why I wanted the criminal committee to have both choices for the December meeting. So, me and the other two guys on the criminal subcommittee plan to join the next phone conference. Maybe by then we will have heard back that Justice Lewis asked for one proposal and that's that. Maybe Justice Lewis will say there's no problem with two proposals. Maybe there'll be no word from Justice Lewis. In any event, I don't think there will be a delay. It's not clear to me that the crim. committee will

APPENDIX H 167

take a separate path.But on the chance that we do, it would be great if you could comment on the short version. Thanks, Bart

-----Original Message-----From: Ralph Artigliere <[email protected]>To: [email protected]; [email protected]; [email protected]: Mon, Sep 28, 2009 12:26 pmSubject: Re: Jury Instruction email todayBart, Lucy, Rebecca: I have some significant issues and suggestions with the instructions Bart attached. Rather than expressing them in writing now, however, I would like to discuss some more important issues: (1) Justice Lewis wanted us to work jointly. Specifically, Justice Lewis has requested that the civil and criminal jury instructions committees consider the problem of jurors engaging in electronic communications and jointly propose a uniform approach and jury instructions to be used in all cases. The deadline for response is January 11, 2010. This leads me to (2) Justice Lewis is right: judges would prefer to have similar or identical civil and criminal instructions when the law is the same because to do otherwise can be somewhat confusing for the judge (sometimes I tried criminal and civil cases one day apart and standard instructions tend to imprint for a judge) or more importantly for the juror who sits on a criminal venire then a civil case in the same week and hears/reads two different instructions. And (3) If we start working on separate competing drafts proposed by the two committees and still try to comply with Justice Lewis' direction, it will be very difficult to come up with good instructions by the deadline, believe me... it will be a lot more work and it would remove the opportunity for full SJI committee input at the October meeting. I thought that's why we had delegates from criminal working together with us... so we could work jointly. If the criminal subcommittee's feelings (about what?) are "the opposite" of ours (what does that mean?), why did we not hear them during the first joint call or during our call last week? Why are we hearing this a few days before our subcommittee deadline to submit a proposal to our entire SJI committee? We have a full meeting coming up in Jacksonville which we were working towards. We invited any or all of your committee to come to our meeting. A diversion at this point is going to seriously hamper our schedule. If someone is going to tell Justice Lewis the two committees can't or won't work together, it would be personally embarassing to me. Wouldn't it be to you? That being said, I am willing to apply whatever time is necessary to get this back on track. I would not withhold my comments on what you attached, even if the criminal committee wants to proceed separately, as I think there are legal an drafting problems to address. I would share my comments with you if you guys are going to take a separate path... if you want them. If you do take a separate path, it will be against my personal belief and vote that we should proceed jointly to develop uniform instructions as DIRECTED by the Supreme Court. Rebecca, I sent this just to our sub-sub-group because those are the only folks Bart included. It will be up to you if you want to involve Joe or others in the mix. Ralph

APPENDIX H 168

----- Original Message ----- From: [email protected] To: [email protected] ; [email protected] ; [email protected] Sent: Monday, September 28, 2009 10:34 AMSubject: Fwd: (no subject) The criminal subcommittee came up with our own instruction (before my conference call with you).The feeling in the criminal subgroup is exactly the opposite of yours.I'm not sure where that leaves us, but please take a look at the attachments.-Bart


Frank Migliore, Jr.


APPENDIX H 169

1

Jury Admonitions In Preliminary Instructions

(Note: Statutory law requires that certain admonitions be given to the jury as part of the court's preliminary instructions. See CPL 270.40. This charge sets forth those admonitions and provides appropriate explanations.)

Our law requires jurors to follow certain instructions in order to help assure a just and fair trial. I will now give you those instructions. 1. Do not converse, either among yourselves or with anyone else, about anything related to the case. YOU MAY TELL THE PEOPLE WITH WHOM YOU LIVE AND YOUR EMPLOYER THAT YOU ARE A JUROR AND GIVE THEM INFORMATION ABOUT WHEN YOU WILL BE REQUIRED TO BE IN COURT. BUT, YOU MAY NOT TALK WITH THEM OR ANYONE ELSE ABOUT ANYTHING RELATED TO THE CASE. 2. Do not, at any time during the trial, request, accept, agree to accept, or discuss with any person the receipt or acceptance of any payment or benefit in return for supplying any information concerning the trial. 3. You must promptly report directly to me any incident within your knowledge involving an attempt by any person improperly to influence you or any member of the jury. 4. Do not visit or view the premises or place where the charged crime was allegedly committed, or any other premises or place involved in the case. AND YOU MUST NOT USE INTERNET MAPS OR GOOGLE EARTH OR ANY OTHER PROGRAM OR DEVICE TO SEARCH FOR AND VIEW ANY LOCATION DISCUSSED IN THE TESTIMONY. 5. Do not read, view or listen to any accounts or discussions

APPENDIX H 170

2

of the case reported by newspapers, television, radio, the internet, or any other news media. 6. Do not attempt to research any fact, issue, or law related to this case, whether by discussion with others, by research in a library or on the internet, or by any other means or source. IN THIS AGE OF INSTANT ELECTRONIC COMMUNICATION AND RESEARCH, I WANT TO EMPHASIZE THAT IN ADDITION TO NOT CONVERSING FACE TO FACE WITH ANYONE ABOUT THE CASE, YOU MUST NOT COMMUNICATE WITH ANYONE ABOUT THE CASE BY ANY OTHER MEANS, INCLUDING BY TELEPHONE, TEXT MESSAGES, EMAIL, INTERNET CHAT OR CHAT ROOMS, BLOGS, OR SOCIAL WEBSITES, SUCH AS FACEBOOK, MY SPACE, OR TWITTER. YOU MUST NOT PROVIDE ANY INFORMATION ABOUT THE CASE TO ANYONE BY ANY MEANS WHATSOEVER, AND THAT INCLUDES THE POSTING OF INFORMATION ABOUT THE CASE, OR WHAT YOU ARE DOING IN THE CASE, ON ANY DEVICE, OR INTERNET SITE, INCLUDING BLOGS, CHAT ROOMS, SOCIAL WEBSITES OR ANY OTHER MEANS. YOU ALSO MUST NOT GOOGLE OR OTHERWISE SEARCH FOR ANY INFORMATION ABOUT THE CASE, OR THE LAW WHICH APPLIES TO THE CASE, OR THE PEOPLE INVOLVED IN THE CASE, INCLUDING THE DEFENDANT, THE WITNESSES, THE LAWYERS, OR THE JUDGE. Now, ladies and gentlemen, I want you to understand why these rules are so important: Our law does not permit jurors to converse with anyone else about the case, or to permit anyone to talk to them about the case, because only jurors are authorized to render a verdict.

APPENDIX H 171

3

Only you have been found to be fair and only you have promised to be fair – no one else has been so qualified. Our law also does not permit jurors to converse among themselves about the case until the Court tells them to begin deliberations because premature discussions can lead to a premature final decision. Our law also does not permit you to visit a place discussed in the testimony. First, you cannot always be sure that the place is in the same condition as it was on the day in question. Second, even if it were in the same condition, once you go to a place discussed in the testimony to evaluate the evidence in light of what you see, you become a witness, not a juror. As a witness, you may now have an erroneous view of the scene that may not be subject to correction by either party. That is not fair. Finally, our law requires that you not read or listen to any news accounts of the case, and that you not attempt to research any fact, issue, or law related to the case. Your decision must be based solely on the TESTIMONY AND OTHER evidence presented in this courtroom. It may not be based on some reporter's view or opinion, or on your own research. IT WOULD NOT BE FAIR TO THE PARTIES FOR YOU TO BASE YOUR DECISION ON SOME REPORTER’S VIEW OR OPINION, OR UPON INFORMATION YOU ACQUIRE OUTSIDE THE COURTROOM. THESE RULES ARE DESIGNED TO HELP GUARANTEE A FAIR TRIAL, AND, OUR LAW ACCORDINGLY SETS FORTH SERIOUS CONSEQUENCES IF THE RULES ARE NOT FOLLOWED. Again, I trust you understand and appreciate the importance of following these rules and, in accord with your oath and promise, I know you will do so.

APPENDIX H 172

Connecticut Criminal Preliminary Jury Instruction 1.2-10

(revised 6/12/09)

A few moments ago you took an oath that will govern your conduct as jurors between the time you took that oath and the time that you are discharged by me after you have rendered a verdict in this case. That oath and the rules of court obligate you to do certain things and to avoid other things, and I want to review your obligations for you now.

First, you must decide this case based only on the evidence presented here in court and on the law as I will explain it to you.

Second, do not make up your minds about what your verdict will be until after you have heard all the evidence, heard the closing arguments of the attorneys and my instructions on the law, and, after that, you and your fellow jurors have discussed the evidence. Keep an open mind until that time.

There are some rules that flow from these obligations, and I'll go over them now.

You may not perform any investigations or research or experiments of any kind on your own, either individually or as a group. Do not consult any dictionaries for the meaning of words or any encyclopedias for general information on the subjects of this trial. Do not look anything up on the Internet concerning information about the case or any of the people involved, including the defendant, the witnesses, the lawyers, or the judge. Do not get copies of any statutes that may be referred to in court. Do not go to the scenes where any of the events that are the subject of this trial took place or use Internet maps or Google Earth or any other program or device to search for or view any place discussed during the case.

Why? Because the parties have a right to have the case decided only on evidence they know about and that has been introduced here in court. If you do some research or investigation or experiment that we don't know about, then your verdict may be influenced by information that has not been tested by the oath to tell the truth and by cross-examination.

The same thing is true of any media reports you may come across about the case or anybody connected with the case. If you do come across any reports in the newspaper or a magazine, on TV, or any Internet site or

APPENDIX H 173

"blog," you may not read or watch them because they may refer to information not introduced here in court or they may contain inaccurate information.

You may not discuss the case with anyone else, including anyone involved with this case until the trial is over, and you have been discharged as jurors. "Anyone else" includes members of your family, your friends, your coworkers; if you wish, you may tell them you are serving as a juror, but you may not tell them anything else about the case until it is over, and I have discharged you. You may not talk to any of the court personnel, such as marshals and clerks, about the case. You may not ask any friends you have who are lawyers or law enforcement personnel for advice or information about any matters related to this case.

Why is that? Because they haven't heard the evidence you have heard, and in discussing the case with them, you may be influenced in your verdict by their opinions, and that would not be fair to the parties, and it may result in a verdict that is not based on the evidence and the law.

You may not communicate to anyone any information about the case. This includes communication by any means, such as text messages, email, Internet chat rooms, blogs, and social websites like Facebook, MySpace, YouTube, or Twitter.

Both the defendant and the state are entitled to a fair trial, rendered by an impartial jury, and you must conduct yourself so as to maintain the integrity of the trial process. When you have rendered a verdict and been dismissed by the court, you will be free to discuss the case with anyone you wish, though remember that you are not required to. Until then you must be focused solely on the evidence presented in the courtroom and your obligations to the fairness of the proceeding.

In addition, you may not talk to each other about the case until I tell you to do so, and that will not be until you have heard all the evidence, you have heard the closing arguments of the attorneys, and you have heard my instructions on the law that you are to apply to the facts you find to be true. Why is that? It may seem only natural that you would talk about the case as it is going on. The problem with that is, when people start discussing things, they take positions on them and express opinions which are often hard for them to change later on. So, if you were permitted to discuss the case while

APPENDIX H 174

it's going on, you might reach conclusions or express opinions before you have heard all the evidence or heard the final arguments of counsel or heard the law that you must apply. Your verdicts in the case might then be improperly influenced by the conclusions or opinions you or your fellow jurors have reached before you knew about all of the evidence or the law that will help you put that evidence in the proper context for your verdicts.

What happens if these rules are violated by a juror? In some cases violations of the rules of juror conduct have resulted in hearings after trial at which the jurors have had to testify about their conduct. In some cases the verdict of the jury has been set aside and a new trial ordered because of jury misconduct. So, it is very important that you abide by these rules.

If someone should attempt to talk to you, please report it to the clerk immediately. If you see or hear anything of a prejudicial nature or that you think might compromise the proper conduct of this trial, please report it to the clerk immediately. I prefer that these communications be in writing. Do not discuss any such matters with your fellow jurors.

APPENDIX H 175


10/26/2009 10:30 AM

To <[email protected]>, <[email protected]>, <[email protected]>, <[email protected]>, "Barton, James " <[email protected]>, "Caldwell, Jr. ,

cc

bcc

Subject revised instructions on electronic devices following civil 10/09 meeting

It was great seeing all of you at our meeting. I’ve attached for your review the revised instructions, as discussed at our meeting. As I was reviewing these changes, I came up with a few questions for you all that I thought we could address before circulating this to the full committee. First, in instruction 1.0, at the meeting we the committee decided to add a note on use in the middle of this instruction:

This instruction may need to be modified to include other means of communication as technology develops.

I have two questions about this: (1) placement—should the note be in the middle of 1.0 or at the end of the instruction, with the existing note on use; and (2) should we add a similar note on use to all the other instructions (qualifications, 1.1, and 700). I think this concept applies to each of the instructions we are proposing and would suggest adding this note to each instruction. Second, I believe that the committee agreed to add a note on use to the closing instruction (700) stating that the trial judge might need to modify this instruction if he or she is collecting the cell phones during deliberations. However, we did not draft any language for this note. Was it your understanding that we were going to add a note to this effect? Third, please take a look at instruction 7.2. I used italicized language to show the changes that have already been suggested and are pending in instruction 700. Let me know if you think this format will make this clear to the court. Thanks very much.


--------------------------------------------------------------------------------


[attachment "electronic device instructions following civil 10-09 meeting (00013202).DOC" deleted by Jodi B Jennings/The Florida Bar]

APPENDIX H 176

(A) QUALIFICATIONS INSTRUCTION Many of you have cell phones, computers, and other electronic

devices. Even though you have not yet been selected as a juror, there are some strict rules that you must follow about using your cell phones, electronic devices and computers. You must not use any device to search the Internet or to find out anything related to any cases in the courthouse.






specific instructions about these matters. A judge will tell you when you are released from this instruction. All of us are depending on you to follow these rules, so that there will be a fair and lawful resolution of every case.

APPENDIX H 177

(B) PRELIMINARY INSTRUCTIONS















Defendant’s Counsel: The attorney on this side of the courtroom,

(introduce by name), represents (client name), the one who has been sued. [His] [Her] job is to present [his] [her] client’s side of things to you. [He]

APPENDIX H 178

[She] and [his] [her] client will usually be referred to here as “the defendant.”









In order to have a fair and lawful trial, there are rules that all

jurors must follow. A basic rule is that jurors must decide the case only on the evidence presented in the courtroom. You must not communicate with anyone, including friends and family members, about this case, the people and places involved, or your jury service. You must not disclose your thoughts about this case or ask for advice on how to decide this case.

I want to stress that this rule means you must not use electronic

devices or computers to communicate about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all.* Do not send or accept any messages to or from anyone about this case or your jury service.

APPENDIX H 179

You must not do any research or look up words, names, [maps], or anything else that may have anything to do with this case. This includes reading newspapers, watching television or using a computer, cell phone, the Internet, any electronic device, or any other means at all, to get information related to this case or the people and places involved in this case. This applies whether you are in the courthouse, at home, or anywhere else.

All of us are depending on you to follow these rules, so that there

will be a fair and lawful resolution to this case. If you become aware of any violation of these instructions or any other instruction I give in this case, you must tell me by giving a note to the bailiff.

*NOTE ON USE

This instruction may need to be modified to include other means

of communication as technology develops.

Voir Dire:






APPENDIX H 180

Purpose of Questioning. The questions that you will be asked during this process are not intended to embarrass you or unnecessarily pry into your personal affairs, but it is important that the parties and their attorneys know enough about you to make this important decision. If a question is asked that you would prefer not to answer in front of the whole courtroom, just let me know and you can come up here and give your answer just in front of the attorneys and me. If you have a question of either the attorneys or me, don’t hesitate to let me know.





NOTE ON USE


APPENDIX H 181


















APPENDIX H 182
















APPENDIX H 183


What are the rules?





courtroom that matter in this trial. The law tells us that a juror can consider only the testimony and other evidence that all the other jurors have also heard and seen in the presence of the judge and the lawyers. Doing anything else is wrong and is against the law. That means that you must cannot do any homework or investigation of your own. You must cannot obtain on your own any information about the case or about anyone involved in the case, from any source whatsoever.,including the Internet This includes reading newspapers, watching television or using a computer, cell phone, the Internet, any electronic device, or any other means at all, to get information related to this case or the people and places involved in this case. This applies whether you are in the courthouse, at home, or anywhere else. you cannot You must not visit places mentioned in the trial or use the Internet to look at maps or pictures to see any place discussed during trial.

APPENDIX H 184

The law also tells us that jJurors must cannot have discussions of any

sort with friends or family members about the case or its subject the people and places involved in this case. So, do not let even the closest family members make comments to you or ask questions about the trial. In this age of electronic communication, I want to stress again that just as you must not talk about this case face-to-face, you must not talk about this case by using an electronic device. You must not use phones, computers or other electronic devices to communicate. Do not send or accept any messages related to this case or your jury service. Do not discuss this case or ask for advice by any means at all, including posting information on an Internet website, chat room or blog. Similarly, it is important that you avoid reading any newspaper accounts, or watching or listening to television or radio comments that have anything to do with this case or its subject.





NOTE ON USE The publication of this recommended instruction is not intended to

intrude upon the trial judge's own style and manner of delivery. It may be useful in cataloging the subjects to be covered in an introductory instruction.

APPENDIX H 185

(C) CLOSING INSTRUCTIONS



During deliberations, jurors must communicate about the case only with one another and only when all jurors are present in the jury room. You will have in the jury room all of the evidence that was received during the trial. In reaching your decision, do not do any research on your own or as a group. Do not use dictionaries, the Internet, or any other reference materials. Do not investigate the case or conduct any experiments. Do not contact anyone to assist you, such as a family accountant, doctor, or lawyer. Do not visit or view the scene of any event involved in this case or look at maps or pictures on the Internet. If you happen to pass by the scene, do not stop or investigate. All jurors must see or hear the same evidence at the same time. Do not read, listen to, or watch any news accounts of this trial.

You are not to communicate with any person outside the jury

about this case. Until you have reached a verdict, you must not talk about this case in person or through the telephone, writing, or electronic communication, such as a blog, twitter, e-mail, text message, or any other means. Do not contact anyone to assist you, such as a family accountant, doctor, or lawyer. These communications rules apply until I discharge you at the end of the case. If you become aware of any violation of these instructions or any other instruction I have given in this case, you must tell me by giving a note to the bailiff.

Any notes you have taken during the trial may be taken to the jury room for use during your discussions. Your notes are simply an aid to your own memory, and neither your notes nor those of any other juror are binding or conclusive. Your notes are not a substitute for your own memory or that of other jurors. Instead, your verdict must

APPENDIX H 186

result from the collective memory and judgment of all jurors based on the evidence and testimony presented during the trial.


notes and immediately destroy them. No one will ever read your notes. In reaching your verdict, do not let bias, sympathy, prejudice, public opinion or any other sentiment for or against any party to influence your decision. Your verdict must be based on the evidence that has been received and the law on which I have instructed you.





It is your duty to talk with one another in the jury room and to consider the views of all the jurors. Each of you must decide the case for yourself, but only after you have considered the evidence with the other members of the jury. Feel free to change your mind if you are convinced that your position should be different. You should all try to agree. But

APPENDIX H 187

do not give up your honest beliefs just because the others think differently. Keep an open mind so that you and your fellow jurors can easily share ideas about the case.











closing arguments, this instruction should not be given at that time. It should be given following closing arguments, just before the jury retires to deliberate. If, however, the entire instruction is given after final arguments, omit the bracketed sentence in the first paragraph.


APPENDIX H 188

3. Quotient verdict. The committee recommends that no instruction

generally be given to admonish the jury against returning a “quotient verdict.”

4. When it is impracticable to take all of the evidence into the jury

room, this instruction should be modified accordingly.

APPENDIX H 189

[THE CIVIL COMMITTEE HAS ALREADY PROPOSED AN AMENDMENT TO INSTRUCTION 7.2, WHICH IS PENDING IN THE

COURT. LANUGAGE IN THE PENDING AMENDMENT IS REFLECTED BY ITALICS, IN ADDITION TO UNDERLING AND

STRIKE-THROUGH TEXT. NEW REVISIONS THAT HAVE NOT BEEN PROPOSED PREVIOUSLY ARE SHOWN WITH UNDERLINED

AND STRIKE-THROGH TEXT.]

7.2 USE OF NOTES DURING DELIBERATIONS; ELECTION OF FOREMAN; VERDICT FORMS

CLOSING INSTRUCTIONS

Members of the jury, you have now heard all the evidence, my instructions on the law that you must apply in reaching your verdict and the closing arguments of the attorneys. You will shortly retire to the jury room to decide this case. [Before you do so, I have a few last instructions for you.] During deliberations, jurors must communicate about the case only with one another and only when all jurors are present in the jury room. You will have in the jury room all of the evidence that was received during the trial. In reaching your decision, do not do any research on your own or as a group. Do not use dictionaries, the Internet, or any other reference materials. Do not investigate the case or conduct any experiments. Do not contact anyone to assist you such as a family accountant, doctor, or lawyer. Do not visit or view the scene of any event involved in this case or look at maps or pictures on the Internet. If you happen to pass by the scene, do not stop or investigate. All jurors must see or hear the same evidence at the same time. Do not read, listen to, or watch any news accounts of this trial.

You are not to communicate with any person outside the jury about this case. Until you have reached a verdict, you must not talk about this case in person or through the telephone, writing, or electronic communication, such as a blog, twitter, e-mail, text message, or any other means. Do not contact anyone to assist you, such as a family accountant, doctor, or lawyer. These communications rule apply until I discharge you at the end of the case. If you become aware of any violation of these instructions or any other instruction I have given in this case, you must tell me by giving a note to the bailiff.


APPENDIX H 190



notes and immediately destroy them. No one will ever read your notes. In reaching your verdict, do not let bias, sympathy, prejudice, public

opinion or any other sentiment for or against any party to influence your decision. Your verdict must be based on the evidence that has been received and the law on which I have instructed you.



Pay careful attention to all the instructions that I gave you for that

is the law that you must follow. You will have a copy of my instructions with you when you go to the jury room to deliberate. All the instructions are important and you must consider all of them together. There are no other laws that apply to this case and even if you do not agree with these laws, you must use them in reaching your decision in this case.



is select one of your number to act as the foreperson to preside over your deliberations and sign your verdict[s]. Your verdict[s] must be unanimous, that is, your verdict[s] must be agreed to by each of you. choose a presiding juror to act as a foreperson during your deliberations. The presiding juror should see to it that your discussions are orderly and that everyone has a fair chance to be heard.

APPENDIX H 191












APPENDIX H 192

- 17 -

NOTES ON USE





Because there seems to be no uniform practice among the circuits

whereby exhibits are delivered to the jury when it retires to consider the verdict, the committee makes no recommendation on that subject. The committee does recommend, however, that the court at least inform the jury at the time that the exhibits are available for inspection by the jury.



COMMENT 3. Quotient verdict. The committee recommends that no instruction generally be given to admonish the jury against returning a “quotient verdict.” 4. When it is impracticable to take all of the evidence into the jury room, this instruction should be modified accordingly.

APPENDIX H 193

"Boyer, Tyrie" <[email protected]>

10/26/2009 02:44 PM

To "Lucy Chernow Brown" <[email protected]>, "Ralph Artigliere" <[email protected]>, "Rebecca Mercier-Vargas" <[email protected]>, <[email protected]>,

cc

bcc

Subject RE: revised instructions on electronic devices following civil 10/09 meeting

ditto

From: Lucy Chernow Brown [mailto:[email protected]] Sent: Monday, October 26, 2009 1:25 PMTo: Ralph Artigliere; Rebecca Mercier-Vargas; [email protected]; [email protected]; Barton, James ; Caldwell, Jr. , Dick; Boyer, Tyrie; Amy Pratt; Jodi B JenningsSubject: RE: revised instructions on electronic devices following civil 10/09 meeting

I agree and concur with Ralph's comments, in their entirety. lcb From: Ralph Artigliere [mailto:[email protected]] Sent: Monday, October 26, 2009 11:53 AMTo: Rebecca Mercier-Vargas; [email protected]; [email protected]; Lucy Chernow Brown; Barton, James ; Caldwell, Jr. , Dick; [email protected]; Amy Pratt; Jodi B JenningsSubject: Re: revised instructions on electronic devices following civil 10/09 meeting Rebecca-- Nice job, as always. Did we get a phone conference time agreed upon? Here is my input re your questions: The Note on change in technology needs to go at the end with the other notes on use, otherwise it may be mistaken as part of the instruction. I might suggest that we can do this without asterisk by expanding the note slightly: "The portions of this instruction dealing with communication with others and outside research may need to be modified to include other specified means of communication or research as technology develops." I suggest that we repeat the note for each instruction to which it applies, not just the first one. With regard to 700, I personally do not feel we should say the judge may need to modify the instruction if cell phones and ipods are collected up during deliberations. To me that implicitly supports the idea that the judge has the option to allow cell phones to go into the jury room. I think that is bad practice and should not be encouraged, even by implication. If the judge collects cell phones, he or she can deal with what the jurors are told. Since we are not suggesting language, there is no need to mention it in my view. I think the format you used for 7.2 was clear to me. We may want to put an explanation in the report narrative that goes along with these so there is no doubt why there are two submissions of the same instruction. Ralph

APPENDIX H 194

----- Original Message ----- From: Rebecca Mercier-Vargas To: [email protected] ; [email protected] ; [email protected] ; [email protected] ; Barton, James ; Caldwell, Jr. , Dick ; [email protected] ; Amy Pratt ; Jodi B Jennings Sent: Monday, October 26, 2009 10:30 AMSubject: revised instructions on electronic devices following civil 10/09 meeting It was great seeing all of you at our meeting. I’ve attached for your review the revised instructions, as discussed at our meeting. As I was reviewing these changes, I came up with a few questions for you all that I thought we could address before circulating this to the full committee. First, in instruction 1.0, at the meeting we the committee decided to add a note on use in the middle of this instruction:




--------------------------------------------------------------------------------


Please be advised that Florida has a broad public records law, and all correspondence

APPENDIX H 195

to me via email may be subject to disclosure. Under Florida records law (SB80 effective 7-01-06), email addresses are public records. If you do not want your email address released in response to a public records request, do not send public records request to this entity. Instead, contact this office by phone or in writing.

APPENDIX H 196

"Caldwell, Jr. , Dick" <[email protected]>

10/26/2009 05:07 PM

To "Ralph Artigliere" <[email protected]>, "Rebecca Mercier-Vargas" <[email protected]>, <[email protected]>, <[email protected]>,

cc

bcc


I agree. It's beyond our purview to set forth any provision in here about taking cell phones away. I was just thinking there might be some way to alert the Supreme Court to this issue, so that they could exercise their unquestioned authority to promulgate such a requirement. From what I recall of the discussion, most trial judges do this anyway, so it may not be a particularly acute issue. It's always the outliers which cause problems, however.

From: Ralph Artigliere [mailto:[email protected]] Sent: Monday, October 26, 2009 5:00 PMTo: Caldwell, Jr. , Dick; Rebecca Mercier-Vargas; [email protected]; [email protected]; [email protected]; Barton, James ; [email protected]; Amy Pratt; Jodi B JenningsSubject: Re: revised instructions on electronic devices following civil 10/09 meeting

Dick, I understand why you want this. But, since we are the jury instructions committee and not a rules committee, I am not sure if we would be overstepping our bounds to put something in the instructions or notes about judges taking phones away. If you are aware of clear-cut law saying it is wrong to let them have phones in the jury room, I might favor citing it to the Supreme Court for referral to the RJA committee in our report. Others may feel differently about this. I can tell you I will be urging judges I teach in New Judges College and other judicial courses to take phones from the jurors. It would not hurt for lawyers to request that the jurors' phones be collected on the grounds that the only items the jury may lawfully have for reference during the deliberations is the evidence, their notes, and a copy of the jury instructions. That would put some pressure on the judge. Ralph ----- Original Message ----- From: Caldwell, Jr. , Dick To: Rebecca Mercier-Vargas ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; Barton, James ; [email protected] ; Amy Pratt ; Jodi B Jennings Sent: Monday, October 26, 2009 3:13 PMSubject: RE: revised instructions on electronic devices following civil 10/09 meeting I also agree with Ralph's comments, with one possible caveat. If it is essentially uniform in all circuits that cell phones, Blackberrys, etc., are collected from the jurors before they retire to deliberate, then no language in the instructions should be necessary, as Ralph mentions. However, if there is some discrepancy among the trial courts

APPENDIX H 197

concerning this practice, do you all think we need to put in something at least implying that this is what needs to be done? In the alternative, could something be put in the Report asking the Supreme Court to add a provision to the Rules of Judicial Administration (or elsewhere) about collecting phones? What do you think?

From: Rebecca Mercier-Vargas [mailto:[email protected]] Sent: Monday, October 26, 2009 10:31 AMTo: [email protected]; [email protected]; [email protected]; [email protected]; Barton, James ; Caldwell, Jr. , Dick; [email protected]; Amy Pratt; Jodi B JenningsSubject: revised instructions on electronic devices following civil 10/09 meeting

It was great seeing all of you at our meeting. I’ve attached for your review the revised instructions, as discussed at our meeting. As I was reviewing these changes, I came up with a few questions for you all that I thought we could address before circulating this to the full committee. First, in instruction 1.0, at the meeting we the committee decided to add a note on use in the middle of this instruction:




--------------------------------------------------------------------------------

CONFIDENTIALITY NOTICE: This email message, including any attachments, is a confidential

APPENDIX H 198

attorney-client communication. If you are not the intended recipient, please contact me and destroy all copies of the original message and attachments.

APPENDIX H 199


10/29/2009 03:36 PM

To Ralph Artigliere <[email protected]>, Rebecca Mercier-Vargas <[email protected]>, Joseph Amos <[email protected]>, "[email protected]"

cc "Lang, Joseph H." <[email protected]>

bcc


I am also fine with the final version. My recollection is that Tracy was going to find out if we even had time to publish, and still stay within Justice Lewis" deadline, and then to ask the Court if they wanted us to publish. lcb From: Ralph Artigliere [mailto:[email protected]] Sent: Thursday, October 29, 2009 3:19 PMTo: Rebecca Mercier-Vargas; Joseph Amos; Lucy Chernow Brown; [email protected]; Barton, James ; Caldwell, Jr. , Dick; [email protected]; Amy Skees; Jodi B Jennings; Wagner, AlanCc: Lang, Joseph H.Subject: Re: revised instructions on electronic devices following civil 10/09 meeting I thought that Tracy was going to find out from the Court if and when they wanted us to publish. Ralph----- Original Message ----- From: Rebecca Mercier-Vargas To: Joseph Amos ; Lucy Chernow Brown ; Ralph Artigliere ; [email protected] ; Barton, James ; Caldwell, Jr. , Dick ; [email protected] ; Amy Skees ; Jodi B Jennings ; Wagner, Alan Cc: Lang, Joseph H. Sent: Thursday, October 29, 2009 11:56 AMSubject: RE: revised instructions on electronic devices following civil 10/09 meeting Attached is a revised version of the instructions, incorporating all of your comments. I added the note on use, adopting the language Ralph suggested, at the end of each instruction:

The portion of this instruction dealing with communication with others and outside research may need to be modified to include other specified means of communication or research as technology develops. On the issue of collecting cell phones during the jurors’ deliberations, the consensus is to address this issue in the report rather than a note on use. Please let me know if you have any other comments by Tuesday, Nov. 3, and we can circulate it to the full committee for approval. I also can’t recall if we decided to publish this for comment. I thought we were looking at a November publication. Politically speaking, is it premature to publish before the criminal committee meets?

Rebecca Mercier Vargas, Esq.Board Certified Appellate Lawyer

APPENDIX H 200

Kreusler-Walsh, Compiani & Vargas P.A.501 South Flagler Drive, Suite 503West Palm Beach, Florida 33401Telephone: (561) 659-5455Facsimile: (561) 820-8762

From: Joseph Amos [mailto:[email protected]] Sent: Thursday, October 29, 2009 10:51 AMTo: Lucy Chernow Brown; Ralph Artigliere; Rebecca Mercier-Vargas; [email protected]; Barton, James ; Caldwell, Jr. , Dick; [email protected]; Amy Skees; Jodi B JenningsCc: [email protected]; Barton, James ; Lang, Joseph H.; Wagner, Alan; Amy SkeesSubject: RE: revised instructions on electronic devices following civil 10/09 meeting All, I've reviewed all recent emails (responding to Rebecca's of 10/26) and also agree with Ralph's comments and input. Unless there are other suggestions, I believe the next step was, after our subcomm agreed, to forward the final proposed revisions to the whole committee, for final input. ( Hopefully any tweaking by the larger committee will be minimal ---dare we hope ? but tis true we benefit from many eyes and minds) Then, our proposed draft goes to the Criminal JI committee for their meeting in December. That meeting is in Tampa, Dec 11. I'll go to that and Dick, I welcome your company if you're available. Anyone else who would like to attend is encouraged to do so. Let me know and we can talk about that later next month. Thank you Rebecca for volunteering (once again) to begin drafting now the report which eventually is submitted to the Fla Supreme Court. Our deadline is January 11, 2010 and is to be a joint report/approach with the Criminal committee. Anyone who would like to contribute, also please do so and connect with Rebecca. Our teleconferences generated alot of good sound suggestions for explaining and educating jurors on this topic, and doing so in the jury assembly room. It's my opinion the more concrete recommendations we make and include in the final report, the better. That's probably the best place too for us to mention the different ways various trial courts manage cell phones, PDAs etc. Tracy, I remember the issue of "publishing " coming up during our recent meeting, but don't remember the resolution or plan. Are we to publish our proposal in the Bar Briefs ? Guidance please. I believe that covers it--- let me know if I've overlooked something, or a point of procedure. Thanks to everyone for the continued work. ---Joe Joseph L. Amos, Jr.Attorney at LawFisher, Rushmer, Werrenrath,

APPENDIX H 201

Dickson, Talley & Dunlap, P.A.P.O. Box 712Orlando, FL 32802-0712(407) 843-2111 - main office(407) 535-4868 - direct telephone(407) 535-4795 - direct fax

From: Lucy Chernow Brown [mailto:[email protected]] Sent: Monday, October 26, 2009 1:25 PMTo: Ralph Artigliere; Rebecca Mercier-Vargas; [email protected]; Joseph Amos; Barton, James ; Caldwell, Jr. , Dick; [email protected]; Amy Skees; Jodi B JenningsSubject: RE: revised instructions on electronic devices following civil 10/09 meeting I agree and concur with Ralph's comments, in their entirety. lcb From: Ralph Artigliere [mailto:[email protected]] Sent: Monday, October 26, 2009 11:53 AMTo: Rebecca Mercier-Vargas; [email protected]; [email protected]; Lucy Chernow Brown; Barton, James ; Caldwell, Jr. , Dick; [email protected]; Amy Pratt; Jodi B JenningsSubject: Re: revised instructions on electronic devices following civil 10/09 meeting Rebecca-- Nice job, as always. Did we get a phone conference time agreed upon? Here is my input re your questions: The Note on change in technology needs to go at the end with the other notes on use, otherwise it may be mistaken as part of the instruction. I might suggest that we can do this without asterisk by expanding the note slightly: "The portions of this instruction dealing with communication with others and outside research may need to be modified to include other specified means of communication or research as technology develops." I suggest that we repeat the note for each instruction to which it applies, not just the first one. With regard to 700, I personally do not feel we should say the judge may need to modify the instruction if cell phones and ipods are collected up during deliberations. To me that implicitly supports the idea that the judge has the option to allow cell phones to go into the jury room. I think that is bad practice and should not be encouraged, even by implication. If the judge collects cell phones, he or she can deal with what the jurors are told. Since we are not suggesting language, there is no need to mention it in my view. I think the format you used for 7.2 was clear to me. We may want to put an explanation in the report narrative that goes along with these so there is no doubt why there are two submissions of the same instruction. Ralph ----- Original Message ----- From: Rebecca Mercier-Vargas To: [email protected] ; [email protected] ; [email protected] ; [email protected] ; Barton, James ; Caldwell, Jr. , Dick ; [email protected] ; Amy Pratt ; Jodi

APPENDIX H 202

B Jennings Sent: Monday, October 26, 2009 10:30 AMSubject: revised instructions on electronic devices following civil 10/09 meeting It was great seeing all of you at our meeting. I’ve attached for your review the revised instructions, as discussed at our meeting. As I was reviewing these changes, I came up with a few questions for you all that I thought we could address before circulating this to the full committee. First, in instruction 1.0, at the meeting we the committee decided to add a note on use in the middle of this instruction:




--------------------------------------------------------------------------------



APPENDIX H 203




APPENDIX H 204

"Ralph Artigliere" <[email protected]>

10/29/2009 12:00 PM

To "Joseph Amos" <[email protected]>, "Lucy Chernow Brown" <[email protected]>, "Rebecca Mercier-Vargas" <[email protected]>, <[email protected]>,

cc <[email protected]>, "Barton, James " <[email protected]>, "Lang, Joseph H." <[email protected]>, "Wagner, Alan"

bcc

Subject Re: revised instructions on electronic devices following civil 10/09 meeting

The more we proceed, the more convinced I am that the jury assembly room instructions will be a significant factor in this effort to educate jurors. Setting aside the advantage of heading off the rare but apparently real problem of jurors researching or twittering before getting to the courtroom, it occurs to me that the jurors will be more receptive and capable of absorbing the information in the assembly room simply because there is more time and less distraction. In the courtroom, the potential jurors' minds are going a mile a minute observing the parties, lawyers, others in the courtroom; they are dealing with knowing what kind of case it is and wondering about what that will mean; and the judge and lawyers have dozens of important new things to tell them from ground rules of behavior to information about the case and voir dire. The jury assembly room is a new environment but much "quieter" in the sensory and information overload department. Thus, since the points to absorb are fewer, they will be less distracted and better learners. Just my view. Ralph----- Original Message ----- From: Joseph Amos To: Lucy Chernow Brown ; Ralph Artigliere ; Rebecca Mercier-Vargas ; [email protected] ; Barton, James ; Caldwell, Jr. , Dick ; [email protected] ; Amy Skees ; Jodi B Jennings Cc: [email protected] ; Barton, James ; Lang, Joseph H. ; Wagner, Alan ; Amy Skees Sent: Thursday, October 29, 2009 10:50 AMSubject: RE: revised instructions on electronic devices following civil 10/09 meeting All, I've reviewed all recent emails (responding to Rebecca's of 10/26) and also agree with Ralph's comments and input. Unless there are other suggestions, I believe the next step was, after our subcomm agreed, to forward the final proposed revisions to the whole committee, for final input. ( Hopefully any tweaking by the larger committee will be minimal ---dare we hope ? but tis true we benefit from many eyes and minds) Then, our proposed draft goes to the Criminal JI committee for their meeting in December. That meeting is in Tampa, Dec 11. I'll go to that and Dick, I welcome your company if you're available. Anyone else who would like to attend is encouraged to do so. Let me know and we can talk about that later next month. Thank you Rebecca for volunteering (once again) to begin drafting now the report which eventually is submitted to the Fla Supreme Court. Our deadline is January 11, 2010 and is to be a joint

APPENDIX H 205

report/approach with the Criminal committee. Anyone who would like to contribute, also please do so and connect with Rebecca. Our teleconferences generated alot of good sound suggestions for explaining and educating jurors on this topic, and doing so in the jury assembly room. It's my opinion the more concrete recommendations we make and include in the final report, the better. That's probably the best place too for us to mention the different ways various trial courts manage cell phones, PDAs etc. Tracy, I remember the issue of "publishing " coming up during our recent meeting, but don't remember the resolution or plan. Are we to publish our proposal in the Bar Briefs ? Guidance please. I believe that covers it--- let me know if I've overlooked something, or a point of procedure. Thanks to everyone for the continued work. ---Joe Joseph L. Amos, Jr.Attorney at LawFisher, Rushmer, Werrenrath,Dickson, Talley & Dunlap, P.A.P.O. Box 712Orlando, FL 32802-0712(407) 843-2111 - main office(407) 535-4868 - direct telephone(407) 535-4795 - direct fax

From: Lucy Chernow Brown [mailto:[email protected]] Sent: Monday, October 26, 2009 1:25 PMTo: Ralph Artigliere; Rebecca Mercier-Vargas; [email protected]; Joseph Amos; Barton, James ; Caldwell, Jr. , Dick; [email protected]; Amy Skees; Jodi B JenningsSubject: RE: revised instructions on electronic devices following civil 10/09 meeting

I agree and concur with Ralph's comments, in their entirety. lcb From: Ralph Artigliere [mailto:[email protected]] Sent: Monday, October 26, 2009 11:53 AMTo: Rebecca Mercier-Vargas; [email protected]; [email protected]; Lucy Chernow Brown; Barton, James ; Caldwell, Jr. , Dick; [email protected]; Amy Pratt; Jodi B JenningsSubject: Re: revised instructions on electronic devices following civil 10/09 meeting Rebecca-- Nice job, as always. Did we get a phone conference time agreed upon? Here is my input re your questions: The Note on change in technology needs to go at the end with the other notes on use, otherwise it may be mistaken

APPENDIX H 206

as part of the instruction. I might suggest that we can do this without asterisk by expanding the note slightly: "The portions of this instruction dealing with communication with others and outside research may need to be modified to include other specified means of communication or research as technology develops." I suggest that we repeat the note for each instruction to which it applies, not just the first one. With regard to 700, I personally do not feel we should say the judge may need to modify the instruction if cell phones and ipods are collected up during deliberations. To me that implicitly supports the idea that the judge has the option to allow cell phones to go into the jury room. I think that is bad practice and should not be encouraged, even by implication. If the judge collects cell phones, he or she can deal with what the jurors are told. Since we are not suggesting language, there is no need to mention it in my view. I think the format you used for 7.2 was clear to me. We may want to put an explanation in the report narrative that goes along with these so there is no doubt why there are two submissions of the same instruction. Ralph ----- Original Message ----- From: Rebecca Mercier-Vargas To: [email protected] ; [email protected] ; [email protected] ; [email protected] ; Barton, James ; Caldwell, Jr. , Dick ; [email protected] ; Amy Pratt ; Jodi B Jennings Sent: Monday, October 26, 2009 10:30 AMSubject: revised instructions on electronic devices following civil 10/09 meeting It was great seeing all of you at our meeting. I’ve attached for your review the revised instructions, as discussed at our meeting. As I was reviewing these changes, I came up with a few questions for you all that I thought we could address before circulating this to the full committee. First, in instruction 1.0, at the meeting we the committee decided to add a note on use in the middle of this instruction:



Rebecca Mercier Vargas, Esq.Board Certified Appellate Lawyer

APPENDIX H 207

Kreusler-Walsh, Compiani, & Vargas P.A.501 South Flagler Drive, Suite 503 West Palm Beach, Florida 33401 Telephone: (561) 659-5455 Facsimile: (561) 820-8762

--------------------------------------------------------------------------------






APPENDIX H 208


11/06/2009 01:52 PM

To "Jodi B Jennings" <[email protected]>

cc <[email protected]>, <[email protected]>

bcc

Subject instructions on jurors & electronic devices

History: This message has been forwarded.

Attached for your review are the revised instructions on jurors using electronic devices, incorporating the revisions that we discussed at the October meeting. There is one change to the notes on use that we would like to bring to your attention. At the meeting, the committee decided to add a note on use in the middle of preliminary instruction 1.0 stating:


The subcommittee voted to move this note to the end of instruction 1.0, rather than to keep it in the middle. This placement makes more sense because there is already a note on use at the end of instruction 1.0. The subcommittee also recommends adding this type of note to each of the four instructions we are proposing. The subcommittee revised the language of this note on use slightly and added the following note to the end of each of the four instructions:

NOTE ON USE

The portion of this instruction dealing with communication with others and outside research may need to be modified to include other specified means of communication or research as technology develops. [Jodi: Could you please forward this to the whole committee? Thanks].


--------------------------------------------------------------------------------


[attachment "electronic device instructions following civil 10-09 meeting

APPENDIX H 209

(00013202).DOC" deleted by Jodi B Jennings/The Florida Bar]

APPENDIX H 210









NOTE ON USE

The portion of this instruction dealing with communication with others and outside research may need to be modified to include other specified means of communication or research as technology develops.

APPENDIX H 211


















APPENDIX H 212













devices or computers to communicate about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages to or from anyone about this case or your jury service.

APPENDIX H 213




Voir Dire:








APPENDIX H 214





NOTE ON USE

1. The publication of this recommended instruction is not intended to intrude upon the trial judge’s own style and manner of delivery. It may be useful in cataloging the subjects to be covered in an introductory instruction.

2. The portion of this instruction dealing with communication

with others and outside research may need to be modified to include other specified means of communication or research as technology develops.

APPENDIX H 215


















APPENDIX H 216
















APPENDIX H 217


What are the rules?






APPENDIX H 218







NOTE ON USE 1. The publication of this recommended instruction is not intended

to intrude upon the trial judge's own style and manner of delivery. It may be useful in cataloging the subjects to be covered in an introductory instruction.

APPENDIX H 219

2. The portion of this instruction dealing with communication with others and outside research may need to be modified to include other specified means of communication or research as technology develops.

APPENDIX H 220




During deliberations, jurors must communicate about the case only with one another and only when all jurors are present in the jury room. You will have in the jury room all of the evidence that was received during the trial. In reaching your decision, do not do any research on your own or as a group. Do not use dictionaries, the Internet, or any other reference materials. Do not investigate the case or conduct any experiments. Do not contact anyone to assist you, such as a family accountant, doctor, or lawyer. Do not visit or view the scene of any event involved in this case. or look at maps or pictures on the Internet. If you happen to pass by the scene, do not stop or investigate. All jurors must see or hear the same evidence at the same time. Do not read, listen to, or watch any news accounts of this trial.




APPENDIX H 221



notes and immediately destroy them. No one will ever read your notes. In reaching your verdict, do not let bias, sympathy, prejudice, public opinion, or any other sentiment for or against any party to influence your decision. Your verdict must be based on the evidence that has been received and the law on which I have instructed you.




When you go to the jury room, the first thing you should do is choose a presiding juror to act as foreperson during your deliberations. The foreperson should see to it that your discussions are orderly and that everyone has a fair chance to be heard.


APPENDIX H 222














APPENDIX H 223

other specified means of communication or research as technology develops.

2.3. Rule 2.430(l), Florida Rules of Judicial Administration, provides


3.4 .Quotient verdict. The committee recommends that no instruction generally be given to admonish the jury against returning a “quotient verdict.”

4.5. When it is impracticable to take all of the evidence into the jury


APPENDIX H 224










APPENDIX H 225




opinion, or any other sentiment for or against any party to influence your decision. Your verdict must be based on the evidence that has been received and the law on which I have instructed you.







is select one of your number to act as the foreperson to preside over your deliberations and sign your verdict[s]. Your verdict[s] must be unanimous, that is, your verdict[s] must be agreed to by each of you. choose a presiding juror to act as a foreperson during your deliberations. The foreperson should see to it that your discussions are orderly and that everyone has a fair chance to be heard.

APPENDIX H 226












APPENDIX H 227

- 18 -

NOTES ON USE










APPENDIX H 228

"Karen Barnett" <[email protected]>

11/09/2009 03:09 PM


cc

bcc

Subject RE: instructions on jurors & electronic devices

This is exactly what we all agreed to. Karen A. Barnett, EsquireBarnett & Gacio, P.A.442 W. Kennedy Blvd.Suite 200Tampa, Florida 33606813/224-9510, ext. 19813/224-9808 [email protected]

NOTICE: This e-mail is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521 and is legally privileged. This e-mail message and any files transmitted with it are also subject to the attorney-client privilege and attorney work-product doctrine, and contain confidential information intended only for the person(s) to whom this e-mail message is addressed. If you have received this e-mail message in error, please notify the sender immediately and destroy the original message without making a copy. Thank you.

From: Jodi B Jennings [mailto:[email protected]] Sent: Friday, November 06, 2009 2:51 PMTo: Amos, Joseph; [email protected]; Artigliere, Ralph; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Edwards, Thomas; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; [email protected]; Wagner, Alan; Gunn, Tracy; Campo, Allan; Bagley, Jerald; Karen Barnett; Burlington, Philip; [email protected]; DeMahy, Pedro (Pete); Francis, Gregorio; Hinkle, Donald; Ingram, J.; Kest, John ; Lytal, Lake; McCloy, Dixon; Rosenbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, Cynthia; Iacone, Diane; Stringfield, CourtneyCc: [email protected]; [email protected]; [email protected]; [email protected]: Fw: instructions on jurors & electronic devices

----- Forwarded by Jodi B Jennings/The Florida Bar on 11/06/2009 02:47 PM ----- "Rebecca Mercier -Vargas" <[email protected]>

11/06/2009 01:52 PM

To "Jodi B Jennings" <[email protected]> cc <[email protected]>, <[email protected]>


Attached for your review are the revised instructions on jurors using electronic devices,

APPENDIX H 229

incorporating the revisions that we discussed at the October meeting. There is one change to the notes on use that we would like to bring to your attention. At the meeting, the committee decided to add a note on use in the middle of preliminary instruction 1.0 stating: This instruction may need to be modified to include other means of communication as technology develops. The subcommittee voted to move this note to the end of instruction 1.0, rather than to keep it in the middle. This placement makes more sense because there is already a note on use at the end of instruction 1.0. The subcommittee also recommends adding this type of note to each of the four instructions we are proposing. The subcommittee revised the language of this note on use slightly and added the following note to the end of each of the four instructions:

NOTE ON USE

The portion of this instruction dealing with communication with others and outside research may need to be modified to include other specified means of communication or research as technology develops. Rebecca Mercier Vargas, Esq. Board Certified Appellate Lawyer Kreusler-Walsh, Compiani, & Vargas P.A. 501 South Flagler Drive, Suite 503 West Palm Beach, Florida 33401 Telephone: (561) 659-5455 Facsimile: (561) 820-8762

--------------------------------------------------------------------------------

CONFIDENTIALITY NOTICE: This email message, including any attachments, is a confidential attorney-client communication. If you are not the intended recipient, please contact me and destroy all

copies of the original message and attachments.

APPENDIX H 230

"Sammy Cacciatore" <[email protected]>

11/10/2009 04:38 PM

To "Caldwell, Jr. , Dick" <[email protected]>, "Jodi B Jennings" <[email protected]>, "Amos, Joseph" <[email protected]>, <[email protected]>,

cc <[email protected]>, <[email protected]>, <[email protected]>, <[email protected]>

bcc


Looks good to me too. Sammy [email protected]

From: Caldwell, Jr. , Dick [mailto:[email protected]] Sent: Tuesday, November 10, 2009 2:59 PMTo: Jodi B Jennings; Amos, Joseph; [email protected]; Artigliere, Ralph; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; [email protected]; [email protected]; Sammy Cacciatore; Vanessa McCurry; Edwards, Thomas; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; [email protected]; Wagner, Alan; Gunn, Tracy; Campo, Allan; Bagley, Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro (Pete); Francis, Gregorio; Hinkle, Donald; Ingram, J.; Kest, John ; Lytal, Lake; McCloy, Dixon; Rosenbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, Cynthia; Iacone, Diane; Stringfield, CourtneyCc: [email protected]; [email protected]; [email protected]; [email protected]: RE: instructions on jurors & electronic devices

It looks good to me. I may have replied before, but per Tracy's reminder, I have no comments.

From: Jodi B Jennings [mailto:[email protected]] Sent: Friday, November 06, 2009 2:51 PMTo: Amos, Joseph; [email protected]; Artigliere, Ralph; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; [email protected]; [email protected]; [email protected]; [email protected]; Caldwell, Jr. , Dick; Edwards, Thomas; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; [email protected]; Wagner, Alan; Gunn, Tracy; Campo, Allan; Bagley, Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro (Pete); Francis, Gregorio; Hinkle, Donald; Ingram, J.; Kest, John ; Lytal, Lake; McCloy, Dixon; Rosenbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, Cynthia; Iacone, Diane; Stringfield, CourtneyCc: [email protected]; [email protected]; [email protected]; [email protected]: Fw: instructions on jurors & electronic devices

APPENDIX H 231


11/06/2009 01:52 PM



Attached for your review are the revised instructions on jurors using electronic devices, incorporating the revisions that we discussed at the October meeting. There is one change to the notes on use that we would like to bring to your attention. At the meeting, the committee decided to add a note on use in the middle of preliminary instruction 1.0 stating: This instruction may need to be modified to include other means of communication as technology develops. The subcommittee voted to move this note to the end of instruction 1.0, rather than to keep it in the middle. This placement makes more sense because there is already a note on use at the end of instruction 1.0. The subcommittee also recommends adding this type of note to each of the four instructions we are proposing. The subcommittee revised the language of this note on use slightly and added the following note to the end of each of the four instructions:

NOTE ON USE


--------------------------------------------------------------------------------

CONFIDENTIALITY NOTICE: This email message, including any attachments, is a confidential

APPENDIX H 232

attorney-client communication. If you are not the intended recipient, please contact me and

destroy all copies of the original message and attachments.

APPENDIX H 233

"Dedee S. Costello" <[email protected]>

11/10/2009 05:20 PM

To Jodi B Jennings <[email protected]>, "Amos, Joseph" <[email protected]>, "[email protected]" <[email protected]>, "Artigliere, Ralph"

cc "[email protected]" <[email protected]>, "[email protected]" <[email protected]>, "[email protected]"

bcc


Okay by me and if anyone else is needed for the subcommittee I would be glad to serve.Dedee Costello________________________________From: Jodi B Jennings [[email protected]]Sent: Friday, November 06, 2009 1:50 PMTo: Amos, Joseph; [email protected]; Artigliere, Ralph; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Edwards, Thomas; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; [email protected]; Wagner, Alan; Gunn, Tracy; Campo, Allan; Bagley, Jerald; Barnett, Karen; Burlington, Philip; Dedee S. Costello; DeMahy, Pedro (Pete); Francis, Gregorio; Hinkle, Donald; Ingram, J.; Kest, John ; Lytal, Lake; McCloy, Dixon; Rosenbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, Cynthia; Iacone, Diane; Stringfield, CourtneyCc: [email protected]; [email protected]; [email protected]; [email protected]: Fw: instructions on jurors & electronic devices

----- Forwarded by Jodi B Jennings/The Florida Bar on 11/06/2009 02:47 PM -----"Rebecca Mercier-Vargas" <[email protected]>

11/06/2009 01:52 PM

To "Jodi B Jennings" <[email protected]>cc <[email protected]>, <[email protected]>Subject instructions on jurors & electronic devices

Attached for your review are the revised instructions on jurors using electronic devices, incorporating the revisions that we discussed at the October meeting. There is one change to the notes on use that we would like to bring to your attention. At the meeting, the committee decided to add a

APPENDIX H 234

note on use in the middle of preliminary instruction 1.0 stating:


The subcommittee voted to move this note to the end of instruction 1.0, rather than to keep it in the middle. This placement makes more sense because there is already a note on use at the end of instruction 1.0.

The subcommittee also recommends adding this type of note to each of the four instructions we are proposing. The subcommittee revised the language of this note on use slightly and added the following note to the end of each of the four instructions:

NOTE ON USE

The portion of this instruction dealing with communication with others and outside research may need to be modified to include other specified means of communication or research as technology develops.

Rebecca Mercier Vargas, Esq.Board Certified Appellate LawyerKreusler-Walsh, Compiani, & Vargas P.A.501 South Flagler Drive, Suite 503West Palm Beach, Florida 33401Telephone: (561) 659-5455Facsimile: (561) 820-8762

--------------------------------------------------------------------------------


APPENDIX H 235

"J. Charles Ingram" <[email protected]>

11/10/2009 07:21 PM


cc <[email protected]>

bcc


From the land of the unofficial pre-members; looks good.

-----Original Message-----From: Jodi B Jennings [mailto:[email protected]] Sent: Friday, November 06, 2009 2:51 PMTo: Amos, Joseph; [email protected]; Artigliere, Ralph; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Edwards, Thomas; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; [email protected]; Wagner, Alan; Gunn, Tracy; Campo, Allan; Bagley, Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro (Pete); Francis, Gregorio; Hinkle, Donald; J. Charles Ingram; Kest, John ; Lytal, Lake; McCloy, Dixon; Rosenbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, Cynthia; Iacone, Diane; Stringfield, CourtneyCc: [email protected]; [email protected]; [email protected]; [email protected]: Fw: instructions on jurors & electronic devices


11/06/2009 01:52 PM

To"Jodi B Jennings" <[email protected]> cc<[email protected]>,

<[email protected]> Subjectinstructions on jurors & electronic devices

Attached for your review are the revised instructions on jurors using electronic devices, incorporating the revisions that we discussed at the October meeting. There is one change to the notes on use that we would like to bring to your attention. At the meeting, the committee decided to add a note on use in the middle of preliminary instruction 1.0 stating: This instruction may need to be modified to include other means of communication as technology develops. The subcommittee voted to move this note to the end of instruction 1.0, rather than to

APPENDIX H 236

keep it in the middle. This placement makes more sense because there is already a note on use at the end of instruction 1.0. The subcommittee also recommends adding this type of note to each of the four instructions we are proposing. The subcommittee revised the language of this note on use slightly and added the following note to the end of each of the four instructions:

NOTE ON USE


--------------------------------------------------------------------------------

CONFIDENTIALITY NOTICE: This email message, including any attachments, is a confidential attorney-client communication. If you are not the intended recipient, please contact me and


APPENDIX H 237

"Kest, John" <[email protected]>

11/10/2009 04:18 PM

To "Tracy Gunn" <[email protected]>, "Jodi B Jennings" <[email protected]>, "Amos, Joseph" <[email protected]>, <[email protected]>,


bcc


Looks good. John Marshall KestCircuit Judge, Ninth Judicial Circuit

From: Tracy Gunn [mailto:[email protected]] Sent: Tuesday, November 10, 2009 2:55 PMTo: 'Jodi B Jennings'; 'Amos, Joseph'; [email protected]; 'Artigliere, Ralph'; [email protected]; [email protected]; [email protected]; 'Boyer, Tyrie'; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; 'Edwards, Thomas'; 'Farmer, Gary'; [email protected]; 'Fulford, Jeffrey'; 'Gertz, Sally'; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; 'LaRose, Edward'; [email protected]; [email protected]; [email protected]; 'Whitmore, Laura'; 'Richards, John'; 'Tracy Wasserman'; [email protected]; 'Mary Masferrer'; [email protected]; 'Wagner, Alan'; 'Campo, Allan'; 'Bagley, Jerald'; 'Barnett, Karen'; 'Burlington, Philip'; [email protected]; 'DeMahy, Pedro (Pete)'; 'Francis, Gregorio'; 'Hinkle, Donald'; 'Ingram, J.'; Kest, John; 'Lytal, Lake'; 'McCloy, Dixon'; 'Rosenbloum, Louis'; 'Roth, Neal'; 'Russo, Elizabeth'; 'Sass, Cynthia'; Iacone, Diane; 'Stringfield, Courtney'Cc: [email protected]; [email protected]; [email protected]; [email protected]: RE: instructions on jurors & electronic devices Would everyone please let Rebecca know by Friday 11/13 if you have any comments or concerns about this final version. Thank you. Tracy Raffles GunnBoard Certified Appellate AttorneyGUNN APPELLATE PRACTICE P.A.400 North Ashley Drive Suite 2055Tampa, FL 33602phone (813) 254-3183fax (813) 254-3258email [email protected] From: Jodi B Jennings [mailto:[email protected]] Sent: Friday, November 06, 2009 2:51 PMTo: Amos, Joseph; [email protected]; Artigliere, Ralph; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Edwards, Thomas; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected];

APPENDIX H 238

[email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; [email protected]; Wagner, Alan; Gunn, Tracy; Campo, Allan; Bagley, Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro (Pete); Francis, Gregorio; Hinkle, Donald; Ingram, J.; Kest, John ; Lytal, Lake; McCloy, Dixon; Rosenbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, Cynthia; Iacone, Diane; Stringfield, CourtneyCc: [email protected]; [email protected]; [email protected]; [email protected]: Fw: instructions on jurors & electronic devices

----- Forwarded by Jodi B Jennings/The Florida Bar on 11/06/2009 02:47 PM ----- "Rebecca Mercier-Vargas" <[email protected]>

11/06/2009 01:52 PM

To"Jodi B Jennings" <[email protected]> cc<[email protected]>, <[email protected]>

Subjectinstructions on jurors & electronic devices


NOTE ON USE

The portion of this instruction dealing with communication with others and outside research may need to be modified to include other specified means of communication or research as technology develops. Rebecca Mercier Vargas, Esq. Board Certified Appellate Lawyer Kreusler-Walsh, Compiani, & Vargas P.A. 501 South Flagler Drive, Suite 503

APPENDIX H 239

West Palm Beach, Florida 33401 Telephone: (561) 659-5455 Facsimile: (561) 820-8762

--------------------------------------------------------------------------------



APPENDIX H 240

"Lake Lytal, Jr." <[email protected]>

11/10/2009 03:48 PM

To "Boyer, Tyrie" <[email protected]>, "Ralph Artigliere" <[email protected]>, "Tracy Gunn" <[email protected]>, "Jodi B Jennings"


bcc


Me too

From: Boyer, Tyrie [mailto:[email protected]] Sent: Tuesday, November 10, 2009 3:47 PMTo: Ralph Artigliere; Tracy Gunn; Jodi B Jennings; Amos, Joseph; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Edwards, Thomas; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; [email protected]; Wagner, Alan; Campo, Allan; Bagley, Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro (Pete); Francis, Gregorio; Hinkle, Donald; Ingram, J.; Kest, John ; Lake Lytal, Jr.; McCloy, Dixon; Rosenbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, Cynthia; Iacone, Diane; Stringfield, CourtneyCc: [email protected]; [email protected]; [email protected]; [email protected]: RE: instructions on jurors & electronic devices ditto

From: Ralph Artigliere [mailto:[email protected]] Sent: Tuesday, November 10, 2009 3:40 PMTo: Tracy Gunn; 'Jodi B Jennings'; 'Amos, Joseph'; [email protected]; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; 'Edwards, Thomas'; 'Farmer, Gary'; [email protected]; 'Fulford, Jeffrey'; 'Gertz, Sally'; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; 'LaRose, Edward'; [email protected]; [email protected]; [email protected]; 'Whitmore, Laura'; 'Richards, John'; 'Tracy Wasserman'; [email protected]; 'Mary Masferrer'; [email protected]; 'Wagner, Alan'; 'Campo, Allan'; 'Bagley, Jerald'; 'Barnett, Karen'; 'Burlington, Philip'; [email protected]; 'DeMahy, Pedro (Pete)'; 'Francis, Gregorio'; 'Hinkle, Donald'; 'Ingram, J.'; 'Kest, John '; 'Lytal, Lake'; 'McCloy, Dixon'; 'Rosenbloum, Louis'; 'Roth, Neal'; 'Russo, Elizabeth'; 'Sass, Cynthia'; 'Iacone, Diane'; 'Stringfield, Courtney'Cc: [email protected]; [email protected]; [email protected]; [email protected]: Re: instructions on jurors & electronic devicesGood to go as far as I am concerned. Ralph----- Original Message ----- From: Tracy Gunn To: 'Jodi B Jennings' ; 'Amos, Joseph' ; [email protected] ; 'Artigliere, Ralph' ;

APPENDIX H 241

[email protected] ; [email protected] ; [email protected] ; 'Boyer, Tyrie' ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; 'Edwards, Thomas' ; 'Farmer, Gary' ; [email protected] ; 'Fulford, Jeffrey' ; 'Gertz, Sally' ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; 'LaRose, Edward' ; [email protected] ; [email protected] ; [email protected] ; 'Whitmore, Laura' ; 'Richards, John' ; 'Tracy Wasserman' ; [email protected] ; 'Mary Masferrer' ; [email protected] ; 'Wagner, Alan' ; 'Campo, Allan' ; 'Bagley, Jerald' ; 'Barnett, Karen' ; 'Burlington, Philip' ; [email protected] ; 'DeMahy, Pedro (Pete)' ; 'Francis, Gregorio' ; 'Hinkle, Donald' ; 'Ingram, J.' ; 'Kest, John ' ; 'Lytal, Lake' ; 'McCloy, Dixon' ; 'Rosenbloum, Louis' ; 'Roth, Neal' ; 'Russo, Elizabeth' ; 'Sass, Cynthia' ; 'Iacone, Diane' ; 'Stringfield, Courtney' Cc: [email protected] ; [email protected] ; [email protected] ; [email protected] Sent: Tuesday, November 10, 2009 2:55 PMSubject: RE: instructions on jurors & electronic devices Would everyone please let Rebecca know by Friday 11/13 if you have any comments or concerns about this final version. Thank you. Tracy Raffles GunnBoard Certified Appellate AttorneyGUNN APPELLATE PRACTICE P.A.400 North Ashley Drive Suite 2055Tampa, FL 33602phone (813) 254-3183fax (813) 254-3258email [email protected] From: Jodi B Jennings [mailto:[email protected]] Sent: Friday, November 06, 2009 2:51 PMTo: Amos, Joseph; [email protected]; Artigliere, Ralph; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Edwards, Thomas; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; [email protected]; Wagner, Alan; Gunn, Tracy; Campo, Allan; Bagley, Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro (Pete); Francis, Gregorio; Hinkle, Donald; Ingram, J.; Kest, John ; Lytal, Lake; McCloy, Dixon; Rosenbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, Cynthia; Iacone, Diane; Stringfield, CourtneyCc: [email protected]; [email protected]; [email protected]; [email protected]: Fw: instructions on jurors & electronic devices


11/06/2009 01:52 PM



APPENDIX H 242


NOTE ON USE


--------------------------------------------------------------------------------



APPENDIX H 243

John Richards <[email protected]>

11/10/2009 07:17 PM

To 'Tracy Gunn' <[email protected]>, 'Jodi B Jennings' <[email protected]>, "'Amos, Joseph'" <[email protected]>, [email protected],

cc [email protected], [email protected], [email protected], [email protected]

bcc


The final version looks fine.-----Original Message-----From: Tracy Gunn [mailto:[email protected]]Sent: Tuesday, November 10, 2009 2:55 PMTo: 'Jodi B Jennings'; 'Amos, Joseph'; [email protected]; 'Artigliere, Ralph'; [email protected]; [email protected]; [email protected]; 'Boyer, Tyrie'; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; 'Edwards, Thomas'; 'Farmer, Gary'; [email protected]; 'Fulford, Jeffrey'; 'Gertz, Sally'; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; 'LaRose, Edward'; [email protected]; [email protected]; [email protected]; 'Whitmore, Laura'; 'Richards, John'; 'Tracy Wasserman'; [email protected]; 'Mary Masferrer'; [email protected]; 'Wagner, Alan'; 'Campo, Allan'; 'Bagley, Jerald'; 'Barnett, Karen'; 'Burlington, Philip'; [email protected]; 'DeMahy, Pedro (Pete)'; 'Francis, Gregorio'; 'Hinkle, Donald'; 'Ingram, J.'; 'Kest, John '; 'Lytal, Lake'; 'McCloy, Dixon'; 'Rosenbloum, Louis'; 'Roth, Neal'; 'Russo, Elizabeth'; 'Sass, Cynthia'; 'Iacone, Diane'; 'Stringfield, Courtney'Cc: [email protected]; [email protected]; [email protected]; [email protected]: RE: instructions on jurors & electronic devices

Would everyone please let Rebecca know by Friday 11/13 if you have any comments or concerns about this final version. Thank you. Tracy Raffles GunnBoard Certified Appellate AttorneyGUNN APPELLATE PRACTICE P.A.400 North Ashley Drive Suite 2055Tampa, FL 33602phone (813) 254-3183fax (813) 254-3258email [email protected] From: Jodi B Jennings [mailto:[email protected]] Sent: Friday, November 06, 2009 2:51 PMTo: Amos, Joseph; [email protected]; Artigliere, Ralph; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Edwards, Thomas; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; [email protected]; Wagner, Alan;

APPENDIX H 244

Gunn, Tracy; Campo, Allan; Bagley, Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro (Pete); Francis, Gregorio; Hinkle, Donald; Ingram, J.; Kest, John ; Lytal, Lake; McCloy, Dixon; Rosenbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, Cynthia; Iacone, Diane; Stringfield, CourtneyCc: [email protected]; [email protected]; [email protected]; [email protected]: Fw: instructions on jurors & electronic devices


11/06/2009 01:52 PM




NOTE ON USE

The portion of this instruction dealing with communication with others and outside research may need to be modified to include other specified means of communication or research as technology develops. Rebecca Mercier Vargas, Esq. Board Certified Appellate Lawyer Kreusler-Walsh, Compiani, & Vargas P.A. 501 South Flagler Drive, Suite 503

APPENDIX H 245

West Palm Beach, Florida 33401 Telephone: (561) 659-5455 Facsimile: (561) 820-8762

--------------------------------------------------------------------------------

CONFIDENTIALITY NOTICE: This email message, including any attachments, is a confidential attorney-client communication. If you are not the intended recipient, please contact me and


APPENDIX H 246

"Barton, James " <[email protected]>

11/11/2009 10:55 AM

To "Jodi B Jennings" <[email protected]>, "Amos, Joseph" <[email protected]>, <[email protected]>, "Artigliere, Ralph" <[email protected]>,


bcc


My only suggestion would be to add a sentence to the Note On Use to the first instruction intended for the prospective jurors: This instruction should be given in addition to and at the conclusion of the instructions normally given to the prospective jurors. From: Jodi B Jennings [mailto:[email protected]] Sent: Friday, November 06, 2009 2:51 PMTo: Amos, Joseph; [email protected]; Artigliere, Ralph; [email protected]; [email protected]; Barton, James ; Boyer, Tyrie; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Edwards, Thomas; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; Charles Kahn, Jr; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; [email protected]; Wagner, Alan; Gunn, Tracy; Campo, Allan; Bagley, Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro (Pete); Francis, Gregorio; Hinkle, Donald; Ingram, J.; Kest, John ; Lytal, Lake; McCloy, Dixon; Rosenbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, Cynthia; Iacone, Diane; Stringfield, CourtneyCc: [email protected]; [email protected]; [email protected]; [email protected]: Fw: instructions on jurors & electronic devices


11/06/2009 01:52 PM



Attached for your review are the revised instructions on jurors using electronic devices, incorporating the revisions that we discussed at the October meeting. There is one change to the notes on use that we would like to bring to your attention. At the meeting, the committee decided to add a note on use in the middle of preliminary instruction 1.0 stating: This instruction may need to be modified to include other means of communication as technology develops.

APPENDIX H 247

The subcommittee voted to move this note to the end of instruction 1.0, rather than to keep it in the middle. This placement makes more sense because there is already a note on use at the end of instruction 1.0. The subcommittee also recommends adding this type of note to each of the four instructions we are proposing. The subcommittee revised the language of this note on use slightly and added the following note to the end of each of the four instructions:

NOTE ON USE


--------------------------------------------------------------------------------



APPENDIX H 248

"Judge Gary M. Farmer" <[email protected]>

11/11/2009 11:15 AM

To Ralph Artigliere <[email protected]>, "Graham, Wendell" <[email protected]>, Tom Edwards <[email protected]>, Tracy Gunn


bcc


Tom and Committee: I think Tom has a point. In context the words “to get information related to this case or the people, andplaces involved in this case” could reasonably be understood to apply to the parties and those connected with them but not to the lawyers appearing in the case. May I also comment on something Ralph said. He referred to a text by Posey raising something called a “reactance effect” as a reason not to specify things forbidden to jurors. Just like a social scientist to take a technical term from the world of physics and use it to dress up psycho-babble to give it some credibility and gravitas. In the context we are addressing, this is pure bunk. It would have us believe that, if we instruct lay jurors as to the specific things they may not do while on jury duty, those jurors will perversely be even more likely to do the forbidden thing. My experience with jurors tells me that they take the duty very seriously and lean on the instructions they hear from the judge. It would be highly unusual for uncorrupted jurors deliberately to act directly against clear instructions. So let us not shrink from specifying what jurors may not do with electronic technology during their service. If we don’t want them conducting any research of their own about the facts or law, whether in person or by electronic gadgets, let us say so in plain words with clear meaning. Attached are some suggested changes to the wording of the proposed instruction. GMF From: Ralph Artigliere [mailto:[email protected]] Sent: Wednesday, November 11, 2009 8:42 AM

APPENDIX H 249

- 1 -

(A) QUALIFICATIONS INSTRUCTION Many of you have cell phones, computers, and other electronic devices. Even though you have not yet been selected as a juror, there are some strict rules that you must follow about using your cell phones, electronic devices and computers. Jurors are forbidden to use any device to search the Internet or to find out anything related to any cases in the courthouse. Between now and your discharge from jury duty by the judge, you must not give or receive any information about your jury service to anyone, including friends, co-workers, and family members. You may tell those who need to know that you have been called for jury duty and where you are. If you are selected to serve on the jury for a specific case, you may tell people that you are serving on a jury in a case and how long the case may take. But you must not give anyone any information about the case itself or the people involved in the case. You must also warn people not to try to say anything to you or write to you about your jury service or the case. This includes all face-to-face, electronic, telephone or computer communications. I want to stress that this rule means you must not use electronic devices or computers to communicate about this case, to ask for or receive information about this case from anyone. Jurors shall not engage in tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages to or from anyone about this case or your jury service. You must not do any research or look up words, names, [maps], or anything else that may have anything to do with this case. This includes reading newspapers, watching television or using a computer, cell phone, the Internet, any electronic device, or any other means at all, to get information related to this case or the people and places involved in this case. This applies whether you are in the courthouse, at home, or anywhere else. After you are called to the courtroom, the judge will give you specific instructions about these matters. A judge will tell you when you are released from this instruction. All of us are depending on you to follow these rules, so that there will be a fair and lawful resolution of every case.

NOTE ON USE

The portion of this instruction dealing with communication with others and outside research may need to be modified to include other specified means of communication or research as technology develops. … (B) PRELIMINARY INSTRUCTIONS


Deleted: You must not

Deleted: when you have been

Deleted: d

Deleted: provide

Deleted: that you have been called for jury duty

Deleted: picked for a jury

Deleted: have been picked for a jury

Deleted: However,

Deleted: In this age of electronic communication, I want to stress that you must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, about your jury service. You must not disclose your thoughts about your jury service or ask for advice on how to decide any case. ¶¶

APPENDIX H 250

- 2 -

PRELIMINARY INSTRUCTION

[Prior to Voir Dire] …

In order to have a fair and lawful trial, there are rules that all jurors must follow. the first rule is that jurors must decide the case on only the evidence presented in the courtroom. Jurors shall not talk to or communicate with anyone, including friends and family members, by any means, about this case, the people, places and events involved, or your jury service. Jurors shall not disclose their thoughts about this case. Jurors shall notask for or receive advice from anyone by any means on how to decide this case. I want to stress that this rule means you must not use electronic devices or computers to communicate about this case, to ask for or receive information about this case from anyone. Jurors shall not engage in tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages to or from anyone about this case or your jury service. You must not do any research or look up words, names, [maps], or anything else that may have anything to do with this case. This includes reading newspapers, watching television or using a computer, cell phone, the Internet, any electronic device, or any other means at all, to get information related to this case or the people and places involved in this case. This applies whether you are in the courthouse, at home, or anywhere else. All of us are depending on you to follow these rules, so that there will be a fair and lawful resolution to this case. If you become aware of any violation of these instructions or any other instruction I give in this case, you must tell me by giving a note to the bailiff.

Deleted: A basic

Deleted: only

Deleted: You must

Deleted: and

Deleted: You must

Deleted: your

Deleted: or

Deleted: including

APPENDIX H 251

To: Graham, Wendell; Tom Edwards; Tracy Gunn; Jodi B Jennings; Amos, Joseph; [email protected]; [email protected]; Judge Jennifer Bailey; [email protected]; Boyer, Tyrie; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Judge Gary M. Farmer; Kate Simmons; Fulford, Jeffrey; Gertz, Sally; Judge Jacqueline R. Griffin; Charles Kahn; C.J. Marston; [email protected]; Judge Edward LaRose; [email protected]; Gail Posey; [email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; [email protected]; Wagner, Alan; Campo, Alla n; Bagley, Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro (Pe te); Francis, Gregorio; Hinkle, Donald; Ingra m, J.; Kest, John; Lytal, Lake; McCloy, Dixon; Rose nbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, C ynthia; Iacone, Diane; Cour tney StringfieldCc: [email protected]; [email protected]; [email protected]; Lester GarringerSubject: Re: instructions on jurors & electronic devices Tom and Committee, At some point in the process, the joint subcommittee (crim and civil) considered the language "including the lawyers, parties, the judge," but even that added language would exclude witnesses. The idea is that the collective term already includes all persons involved in the case. How about Googling other jurors? It's a question of how far we go with any list and how long we want to make our instructions.[1] I personally think judges can use their own discretion to put this type of information out to jurors, and we should go with the standard instruction as is. This Friday Judge Barton and I are teaching judges "Communication with the Jury" in Inverness, and we will discuss (as I believe our note on use says), that preliminary instructions may be modified slightly to suit the case and the local or individual preferences of the judge. We will discuss language like this that may supplement the instruction, or the judge may stick strictly to the standard. Plus any lawyer who feels strongly about this can handle it in voir dire. But there is a down side in the judge or lawyer doing so (see next paragraph). A text on juror behavior by Amy Posey that we considered in writing the Bar Journal article discussed the concept of the specifying prohibited behavior to jurors (such as "don't Google the lawyers") as causing a "reactance effect" in which jurors may be tempted to do exactly what was denied them by power of suggestion. [Posey, Amy and Wrightsman, Lawrence S., TRIAL CONSULTING, at p. 145 (Oxford Univ. Press 2005)]. I am not saying this prevents us from telling jurors what not to do, but I am saying that this addition may suggest to some a very specific and easy way to satisfy their curiosity about lawyers or judge. I do not feel strongly enough to oppose Tom's suggestion. I am merely saying more specific instruction was considered at length and rejected on a quite reasonable basis, and I think we need to get on with this process. Ralph

[1] In fact, when I was a judge, on the very first break I always told the jurors they were not to discuss the case and anyone involved in the case, including the parties, the lawyers, or me,the judge, among themselves or with anyone else. I then told them they could tell those who needed to know, like their boss, loved ones, or babysitter, that they were under consideration to be on a jury and that jury duty may last [whenever it may be over]. Other than that... no discussing anything about the case. However, the context of that early instruction had to do with keeping jurors from discussing the case; not researching about it it. However, it was supplemental to the standard and shows what judges can lawfully do if they want to. ----- Original Message ----- From: "Graham, Wendell" <[email protected]>

APPENDIX H 252

To: "Tom Edwards" <[email protected]>; "Ralph Artigliere" <[email protected]>; "Tracy Gunn" <[email protected]>; "Jodi B Jennings" <[email protected]>; "Amos, Joseph" <[email protected]>; <[email protected]>; <[email protected]>; <[email protected]>; <[email protected]>; "Boyer, Tyrie" <[email protected]>; <[email protected]>; <[email protected]>; <[email protected]>; <[email protected]>; <[email protected]>; "Farmer, Gary" <[email protected]>; <[email protected]>; "Fulford, Jeffrey" <[email protected]>; "Gertz, Sally" <[email protected]>; <[email protected]>; <[email protected]>; <[email protected]>; <[email protected]>; "LaRose, Edward" <[email protected]>; <[email protected]>; <[email protected]>; <[email protected]>; "Whitmore, Laura" <[email protected]>; "Richards, John" <[email protected]>; "Tracy Wasserman" <[email protected]>; <[email protected]>; "Mary Masferrer" <[email protected]>; <[email protected]>; "Wagner, Alan" <[email protected]>; "Campo, Alla n" <[email protected]>; "Bagley, Jerald" <[email protected]>; "Barnett, Karen" <[email protected]>; "Burlington, Philip" <[email protected]>; <[email protected]>; "DeMahy, Pedro (Pe te)" <[email protected]>; "Francis, Gregorio" <[email protected]>; "Hinkle, Donald" <[email protected]>; "Ingra m, J." <[email protected]>; "Kest, John" <[email protected]>; "Lytal, Lake" <[email protected]>; "McCloy, Dixon" <[email protected]>; "Rose nbloum, Louis" <[email protected]>; "Roth, Neal" <[email protected]>; "Russo, Elizabeth" <[email protected]>; "Sass, C ynthia" <[email protected]>; "Iacone, Diane" <[email protected]>; "Cour tney Stringfield" <[email protected]>Cc: <[email protected]>; <[email protected]>; <[email protected]>; <[email protected]>Sent: Wednesday, November 11, 2009 12:25 AMSubject: RE: instructions on jurors & electronic devices I agree. A worthy tweek, but make only if it can be done without delaying submission to court.

--- original message ---From: "Tom Edwards" <[email protected]>Subject: RE: instructions on jurors & electronic devicesDate: November 10, 2009Time: 4:38:55 PM

I think the instruction looks good though I have one question andthought --- I missed the second day and I don't know if there was debateor discussion about including the word "attorney" or "lawyer" in thephrase that is used throughout the instructions below: to get information related to this case or the people, {attorneys} andplaces involved in this case My understanding is that jurors now commonly search web sites and namesof attorneys involved in trials and it may be good to spell it out

Thomas S. Edwards, Jr. Edwards & Ragatz, P.A. Personal Injury and Commercial Trials 501 Riverside Ave., Suite 601, Jacksonville, Florida 32202 Phone 904.399.1609/800.366.1609/Fax 904.399.1615 Email: [email protected] <mailto:[email protected]> WebSite: edwardsragatz.com THIS E-MAIL TRANSMISSION IS PRIVILEGED AND CONFIDENTIAL. IF YOU ARE NOTTHE INTENDED RECIPIENT, DO NOT READ, DISTRIBUTE OR REPRODUCE THISTRANSMISSION (INCLUDING ANY ATTACHMENTS). IF YOU HAVE RECEIVED THIS

APPENDIX H 253

E-MAIL IN ERROR, PLEASE NOTIFY THE SENDER BY E-MAIL REPLY AND THENDELETE THIS E-MAIL. IRS Circular 230 Disclosure. To ensure compliancewith requirements imposed by the IRS, we inform you that any federal taxadvice contained in this communication (including any attachments) wasnot intended or written to be used, and cannot be used by any taxpayer,for the purpose of (i) avoiding penalties under the Internal RevenueCode or (ii) promoting, marketing or recommending to another party anytransaction or matter addressed herein.

________________________________

From: Ralph Artigliere [mailto:[email protected]] Sent: Tuesday, November 10, 2009 3:40 PMTo: Tracy Gunn; 'Jodi B Jennings'; 'Amos, Joseph';[email protected]; [email protected];[email protected]; [email protected]; 'Boyer, Tyrie';[email protected]; [email protected];[email protected]; [email protected]; [email protected]; TomEdwards; 'Farmer, Gary'; [email protected]; 'Fulford, Jeffrey';'Gertz, Sally'; [email protected]; [email protected];[email protected]; [email protected]; [email protected]; 'LaRose,Edward'; [email protected]; [email protected];[email protected]; 'Whitmore, Laura'; 'Richards, John'; 'TracyWasserman'; [email protected]; 'Mary Masferrer'; [email protected];'Wagner, Alan'; 'Campo, Allan'; 'Bagley, Jerald'; 'Barnett, Karen';'Burlington, Philip'; [email protected]; 'DeMahy, Pedro(Pete)'; 'Francis, Gregorio'; 'Hinkle, Donald'; 'Ingram, J.'; 'Kest,John '; 'Lytal, Lake'; 'McCloy, Dixon'; 'Rosenbloum, Louis'; 'Roth,Neal'; 'Russo, Elizabeth'; 'Sass, Cynthia'; 'Iacone, Diane'; CourtneyStringfieldCc: [email protected]; [email protected];[email protected]; [email protected]: Re: instructions on jurors & electronic devices

Good to go as far as I am concerned. Ralph

----- Original Message ----- From: Tracy Gunn <mailto:[email protected]> To: 'Jodi B Jennings' <mailto:[email protected]> ; 'Amos,Joseph' <mailto:[email protected]> ; [email protected] ; 'Artigliere, Ralph' <mailto:[email protected]> ; [email protected] ; [email protected] ; [email protected] ; 'Boyer, Tyrie' <mailto:[email protected]> ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ;

APPENDIX H 254

'Edwards, Thomas' <mailto:[email protected]> ; 'Farmer, Gary'<mailto:[email protected]> ; [email protected] ; 'Fulford,Jeffrey' <mailto:[email protected]> ; 'Gertz, Sally'<mailto:[email protected]> ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; 'LaRose, Edward' <mailto:[email protected]>; [email protected] ; [email protected] ; [email protected] ; 'Whitmore, Laura'<mailto:[email protected]> ; 'Richards, John'<mailto:[email protected]> ; 'Tracy Wasserman'<mailto:[email protected]> ; [email protected] ; 'MaryMasferrer' <mailto:[email protected]> ; [email protected] ; 'Wagner,Alan' <mailto:[email protected]> ; 'Campo, Allan'<mailto:[email protected]> ; 'Bagley, Jerald'<mailto:[email protected]> ; 'Barnett, Karen'<mailto:[email protected]> ; 'Burlington, Philip'<mailto:[email protected]> ; [email protected] ; 'DeMahy, Pedro (Pete)' <mailto:[email protected]> ; 'Francis,Gregorio' <mailto:[email protected]> ; 'Hinkle, Donald'<mailto:[email protected]> ; 'Ingram, J.' <mailto:[email protected]>; 'Kest, John ' <mailto:[email protected]> ; 'Lytal, Lake'<mailto:[email protected]> ; 'McCloy, Dixon'<mailto:[email protected]> ; 'Rosenbloum, Louis'<mailto:[email protected]> ; 'Roth, Neal'<mailto:[email protected]> ; 'Russo, Elizabeth'<mailto:[email protected]> ; 'Sass, Cynthia'<mailto:[email protected]> ; 'Iacone, Diane'<mailto:[email protected]> ; 'Stringfield, Courtney'<mailto:[email protected]> Cc: [email protected] ; [email protected] ; [email protected] ; [email protected] Sent: Tuesday, November 10, 2009 2:55 PMSubject: RE: instructions on jurors & electronic devices

Would everyone please let Rebecca know by Friday 11/13 if youhave any comments or concerns about this final version. Thank you.

Tracy Raffles Gunn

Board Certified Appellate Attorney

GUNN APPELLATE PRACTICE P.A.

400 North Ashley Drive Suite 2055

Tampa, FL 33602

phone (813) 254-3183

fax (813) 254-3258

APPENDIX H 255

email [email protected]

From: Jodi B Jennings [mailto:[email protected]] Sent: Friday, November 06, 2009 2:51 PMTo: Amos, Joseph; [email protected]; Artigliere, Ralph; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Edwards, Thomas; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; TracyWasserman; [email protected]; Mary Masferrer; [email protected];Wagner, Alan; Gunn, Tracy; Campo, Allan; Bagley, Jerald; Barnett, Karen;Burlington, Philip; [email protected]; DeMahy, Pedro (Pete);Francis, Gregorio; Hinkle, Donald; Ingram, J.; Kest, John ; Lytal, Lake;McCloy, Dixon; Rosenbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass,Cynthia; Iacone, Diane; Stringfield, CourtneyCc: [email protected]; [email protected]; [email protected]; [email protected]: Fw: instructions on jurors & electronic devices

----- Forwarded by Jodi B Jennings/The Florida Bar on 11/06/200902:47 PM -----


11/06/2009 01:52 PM

To

"Jodi B Jennings" <[email protected]>

cc

<[email protected]>, <[email protected]>

Subject

instructions on jurors & electronic devices

APPENDIX H 256

Attached for your review are the revised instructions on jurorsusing electronic devices, incorporating the revisions that we discussedat the October meeting. There is one change to the notes on use that wewould like to bring to your attention. At the meeting, the committeedecided to add a note on use in the middle of preliminary instruction1.0 stating: This instruction may need to be modified to include other meansof communication as technology develops. The subcommittee voted to move this note to the end ofinstruction 1.0, rather than to keep it in the middle. This placementmakes more sense because there is already a note on use at the end ofinstruction 1.0. The subcommittee also recommends adding this type of note toeach of the four instructions we are proposing. The subcommittee revisedthe language of this note on use slightly and added the following noteto the end of each of the four instructions:

NOTE ON USE

The portion of this instruction dealing with communication withothers and outside research may need to be modified to include otherspecified means of communication or research as technology develops. Rebecca Mercier Vargas, Esq. Board Certified Appellate Lawyer Kreusler-Walsh, Compiani, & Vargas P.A. 501 South Flagler Drive, Suite 503 West Palm Beach, Florida 33401 Telephone: (561) 659-5455 Facsimile: (561) 820-8762

--------------------------------------------------------------------------------

CONFIDENTIALITY NOTICE: This email message, including anyattachments, is a confidential attorney-client communication. If you arenot the intended recipient, please contact me and destroy all copies ofthe original message and attachments. [attachment "E-device JI proposed revisions.doc" deleted by Jodi B Jennings/The Florida Bar]

APPENDIX H 257

Judge Edward LaRose <[email protected]>

11/11/2009 09:12 AM

To Tracy Gunn <[email protected]>, 'Jodi B Jennings' <[email protected]>, "'Amos, Joseph'" <[email protected]>, "[email protected]"


bcc


Looks OK .From: Tracy Gunn [[email protected]]Sent: Tuesday, November 10, 2009 2:55 PMTo: 'Jodi B Jennings'; 'Amos, Joseph'; [email protected]; 'Artigliere, Ralph'; [email protected]; Judge Jennifer Bailey; [email protected]; 'Boyer, Tyrie'; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; 'Edwards, Thomas'; Judge Gary M. Farmer; Kate Simmons; 'Fulford, Jeffrey'; 'Gertz, Sally'; [email protected]; Judge Jacqueline R. Griffin; Charles Kahn; C.J. Marston; [email protected]; Judge Edward LaRose; [email protected]; Gail Posey; [email protected]; 'Whitmore, Laura'; 'Richards, John'; 'Tracy Wasserman'; [email protected]; 'Mary Masferrer'; [email protected]; 'Wagner, Alan'; 'Campo, Allan'; 'Bagley, Jerald'; 'Barnett, Karen'; 'Burlington, Philip'; [email protected]; 'DeMahy, Pedro (Pete)'; 'Francis, Gregorio'; 'Hinkle, Donald'; 'Ingram, J.'; 'Kest, John '; 'Lytal, Lake'; 'McCloy, Dixon'; 'Rosenbloum, Louis'; 'Roth, Neal'; 'Russo, Elizabeth'; 'Sass, Cynthia'; 'Iacone, Diane'; 'Stringfield, Courtney'Cc: [email protected]; [email protected]; [email protected]; Lester GarringerSubject: RE: instructions on jurors & electronic devices

Would everyone please let Rebecca know by Friday 11/13 if you have any comments or concerns about this final version. Thank you. Tracy Raffles GunnBoard Certified Appellate AttorneyGUNN APPELLATE PRACTICE P.A.400 North Ashley Drive Suite 2055Tampa, FL 33602phone (813) 254-3183fax (813) 254-3258email [email protected] From: Jodi B Jennings [mailto:[email protected]] Sent: Friday, November 06, 2009 2:51 PMTo: Amos, Joseph; [email protected]; Artigliere, Ralph; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Edwards, Thomas; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; [email protected]; Wagner, Alan; Gunn, Tracy; Campo, Allan; Bagley, Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro

APPENDIX H 258

(Pete); Francis, Gregorio; Hinkle, Donald; Ingram, J.; Kest, John ; Lytal, Lake; McCloy, Dixon; Rosenbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, Cynthia; Iacone, Diane; Stringfield, CourtneyCc: [email protected]; [email protected]; [email protected]; [email protected]: Fw: instructions on jurors & electronic devices


11/06/2009 01:52 PM




NOTE ON USE


APPENDIX H 259

--------------------------------------------------------------------------------



APPENDIX H 260

"Ross McCloy" <[email protected]>

11/11/2009 09:33 AM

To "Graham, Wendell" <[email protected]>, "Tom Edwards" <[email protected]>, "Ralph Artigliere" <[email protected]>, "Tracy Gunn"


bcc


Agree. All else looks good.

Dixon Ross McCloy, Jr., Esq.Harrison, Sale, McCloy, Duncan & Jackson, Chtd.P.O. Drawer 1579Panama City, FL 32402Phone: (850) 769-3434Fax: (850) 769-6121 ***************************************************************************NOTICE TO RECIPIENT: This e-mail message is intended only for theindividual or entity to which it is addressed and may containconfidential information and/or attachments that are legally privileged.If you are not the intended recipient, any review, use, dissemination,distribution, or copying of this e-mail is strictly prohibited. If youhave received this e-mail in error, please notify us immediately byreturn e-mail or by telephone and delete this message. Please note thatif this e-mail contains a forwarded message, an attachment, or is areply to a prior message, some or all of the contents of this messagemay not have been produced by Harrison, Sale, McCloy, Duncan & Jackson,Chtd.-----Original Message-----From: Graham, Wendell [mailto:[email protected]] Sent: Tuesday, November 10, 2009 11:26 PMTo: Tom Edwards; Ralph Artigliere; Tracy Gunn; Jodi B Jennings; Amos,Joseph; [email protected]; [email protected];[email protected]; [email protected]; Boyer, Tyrie;[email protected]; [email protected];[email protected]; [email protected]; [email protected];Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally;[email protected]; [email protected]; [email protected];[email protected]; LaRose, Edward; [email protected];[email protected]; [email protected]; Whitmore, Laura;Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer;[email protected]; Wagner, Alan; Campo, Alla n; Bagley, Jerald;Barnett, Karen; Burlington, Philip; [email protected];DeMahy, Pedro (Pe te); Francis, Gregorio; Hinkle, Donald; Ingra m, J.;Kest, John; Lytal, Lake; Ross McCloy; Rose nbloum, Louis; Roth, Neal;Russo, Elizabeth; Sass, C ynthia; Iacone, Diane; Cour tney StringfieldCc: [email protected]; [email protected];[email protected]; [email protected]: RE: instructions on jurors & electronic devices

I agree. A worthy tweek, but make only if it can be done withoutdelaying submission to court.

APPENDIX H 261



Thomas S. Edwards, Jr. Edwards & Ragatz, P.A. Personal Injury and Commercial Trials 501 Riverside Ave., Suite 601, Jacksonville, Florida 32202 Phone 904.399.1609/800.366.1609/Fax 904.399.1615 Email: [email protected] <mailto:[email protected]> WebSite: edwardsragatz.com THIS E-MAIL TRANSMISSION IS PRIVILEGED AND CONFIDENTIAL. IF YOU ARE NOTTHE INTENDED RECIPIENT, DO NOT READ, DISTRIBUTE OR REPRODUCE THISTRANSMISSION (INCLUDING ANY ATTACHMENTS). IF YOU HAVE RECEIVED THISE-MAIL IN ERROR, PLEASE NOTIFY THE SENDER BY E-MAIL REPLY AND THENDELETE THIS E-MAIL. IRS Circular 230 Disclosure. To ensure compliancewith requirements imposed by the IRS, we inform you that any federal taxadvice contained in this communication (including any attachments) wasnot intended or written to be used, and cannot be used by any taxpayer,for the purpose of (i) avoiding penalties under the Internal RevenueCode or (ii) promoting, marketing or recommending to another party anytransaction or matter addressed herein.

________________________________

From: Ralph Artigliere [mailto:[email protected]] Sent: Tuesday, November 10, 2009 3:40 PMTo: Tracy Gunn; 'Jodi B Jennings'; 'Amos, Joseph';[email protected]; [email protected];[email protected]; [email protected]; 'Boyer, Tyrie';[email protected]; [email protected];[email protected]; [email protected]; [email protected]; TomEdwards; 'Farmer, Gary'; [email protected]; 'Fulford, Jeffrey';'Gertz, Sally'; [email protected]; [email protected];[email protected]; [email protected]; [email protected]; 'LaRose,Edward'; [email protected]; [email protected];[email protected]; 'Whitmore, Laura'; 'Richards, John'; 'TracyWasserman'; [email protected]; 'Mary Masferrer'; [email protected];'Wagner, Alan'; 'Campo, Allan'; 'Bagley, Jerald'; 'Barnett, Karen';'Burlington, Philip'; [email protected]; 'DeMahy, Pedro(Pete)'; 'Francis, Gregorio'; 'Hinkle, Donald'; 'Ingram, J.'; 'Kest,

APPENDIX H 262

John '; 'Lytal, Lake'; 'McCloy, Dixon'; 'Rosenbloum, Louis'; 'Roth,Neal'; 'Russo, Elizabeth'; 'Sass, Cynthia'; 'Iacone, Diane'; CourtneyStringfieldCc: [email protected]; [email protected];[email protected]; [email protected]: Re: instructions on jurors & electronic devices


----- Original Message ----- From: Tracy Gunn <mailto:[email protected]> To: 'Jodi B Jennings' <mailto:[email protected]> ; 'Amos,

Joseph' <mailto:[email protected]> ; [email protected] ; 'Artigliere, Ralph' <mailto:[email protected]> ; [email protected] ; [email protected] ; [email protected] ; 'Boyer, Tyrie' <mailto:[email protected]> ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; 'Edwards, Thomas' <mailto:[email protected]> ; 'Farmer, Gary'<mailto:[email protected]> ; [email protected] ; 'Fulford,Jeffrey' <mailto:[email protected]> ; 'Gertz, Sally'<mailto:[email protected]> ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; 'LaRose, Edward' <mailto:[email protected]>; [email protected] ; [email protected] ; [email protected] ; 'Whitmore, Laura'<mailto:[email protected]> ; 'Richards, John'<mailto:[email protected]> ; 'Tracy Wasserman'<mailto:[email protected]> ; [email protected] ; 'MaryMasferrer' <mailto:[email protected]> ; [email protected] ; 'Wagner,Alan' <mailto:[email protected]> ; 'Campo, Allan'<mailto:[email protected]> ; 'Bagley, Jerald'<mailto:[email protected]> ; 'Barnett, Karen'<mailto:[email protected]> ; 'Burlington, Philip'<mailto:[email protected]> ; [email protected] ; 'DeMahy, Pedro (Pete)' <mailto:[email protected]> ; 'Francis,Gregorio' <mailto:[email protected]> ; 'Hinkle, Donald'<mailto:[email protected]> ; 'Ingram, J.' <mailto:[email protected]>; 'Kest, John ' <mailto:[email protected]> ; 'Lytal, Lake'<mailto:[email protected]> ; 'McCloy, Dixon'<mailto:[email protected]> ; 'Rosenbloum, Louis'<mailto:[email protected]> ; 'Roth, Neal'<mailto:[email protected]> ; 'Russo, Elizabeth'<mailto:[email protected]> ; 'Sass, Cynthia'<mailto:[email protected]> ; 'Iacone, Diane'<mailto:[email protected]> ; 'Stringfield, Courtney'<mailto:[email protected]>

Cc: [email protected] ; [email protected] ; [email protected] ; [email protected]

Sent: Tuesday, November 10, 2009 2:55 PM Subject: RE: instructions on jurors & electronic devices


APPENDIX H 263

Tracy Raffles Gunn




Tampa, FL 33602

phone (813) 254-3183

fax (813) 254-3258


From: Jodi B Jennings [mailto:[email protected]] Sent: Friday, November 06, 2009 2:51 PM To: Amos, Joseph; [email protected]; Artigliere, Ralph;

[email protected]; [email protected]; [email protected]; Boyer, Tyrie; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Edwards, Thomas; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; TracyWasserman; [email protected]; Mary Masferrer; [email protected];Wagner, Alan; Gunn, Tracy; Campo, Allan; Bagley, Jerald; Barnett, Karen;Burlington, Philip; [email protected]; DeMahy, Pedro (Pete);Francis, Gregorio; Hinkle, Donald; Ingram, J.; Kest, John ; Lytal, Lake;McCloy, Dixon; Rosenbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass,Cynthia; Iacone, Diane; Stringfield, Courtney

Cc: [email protected]; [email protected]; [email protected]; [email protected]

Subject: Fw: instructions on jurors & electronic devices

----- Forwarded by Jodi B Jennings/The Florida Bar on 11/06/2009

02:47 PM -----


11/06/2009 01:52 PM

To


cc


Subject

APPENDIX H 264


Attached for your review are the revised instructions on jurors

using electronic devices, incorporating the revisions that we discussedat the October meeting. There is one change to the notes on use that wewould like to bring to your attention. At the meeting, the committeedecided to add a note on use in the middle of preliminary instruction1.0 stating:

This instruction may need to be modified to include other means

of communication as technology develops. The subcommittee voted to move this note to the end of

instruction 1.0, rather than to keep it in the middle. This placementmakes more sense because there is already a note on use at the end ofinstruction 1.0.

The subcommittee also recommends adding this type of note to

each of the four instructions we are proposing. The subcommittee revisedthe language of this note on use slightly and added the following noteto the end of each of the four instructions:

NOTE ON USE

The portion of this instruction dealing with communication with

others and outside research may need to be modified to include otherspecified means of communication or research as technology develops.

Rebecca Mercier Vargas, Esq. Board Certified Appellate Lawyer Kreusler-Walsh, Compiani, & Vargas P.A. 501 South Flagler Drive, Suite 503 West Palm Beach, Florida 33401 Telephone: (561) 659-5455 Facsimile: (561) 820-8762

--------------------------------------------------------------------------------

CONFIDENTIALITY NOTICE: This email message, including anyattachments, is a confidential attorney-client communication. If you arenot the intended recipient, please contact me and destroy all copies ofthe original message and attachments.

APPENDIX H 265


11/12/2009 12:48 PM

To Rebecca Mercier-Vargas <[email protected]>, Joseph Amos <[email protected]>, "Caldwell, Jr. , Dick" <[email protected]>, Tracy Gunn

cc "Barton, James " <[email protected]>, "Lang, Joseph H." <[email protected]>, "Wagner, Alan" <[email protected]>, Amy Skees

bcc

Subject RE: Proposed article for Orange Co. Bar Ass'n publication

Rebecca, I think the final version looks great. Thanks again for all your hard work. On the issue of specifying categories of people who should not be googled, I am in favor of language such as: the judge, attorneys, witnesses, jurors, court personnel, or any other person in any way related to this case, i.e. specific, but also all‐encompassing. lcb From: Rebecca Mercier-Vargas [mailto:[email protected]] Sent: Thursday, November 12, 2009 12:02 PMTo: Joseph Amos; Caldwell, Jr. , Dick; Tracy Gunn; Lucy Chernow Brown; Ralph Artigliere; Barton, James ; [email protected]; Amy Skees; Jodi B JenningsCc: Barton, James ; Lang, Joseph H.; Wagner, Alan; Amy Skees; Ramkissoon, ZitaSubject: RE: Proposed article for Orange Co. Bar Ass'n publication I also think the article is a great idea and well-written. One minor comment—you could add Oregon to the list of states considering amending their instructions to address this issue.


From: Joseph Amos [mailto:[email protected]] Sent: Thursday, November 12, 2009 10:19 AMTo: Caldwell, Jr. , Dick; Tracy Gunn; Lucy Chernow Brown; Ralph Artigliere; Rebecca Mercier-Vargas; Barton, James ; [email protected]; Amy Skees; Jodi B JenningsCc: Barton, James ; Lang, Joseph H.; Wagner, Alan; Amy Skees; Ramkissoon, ZitaSubject: RE: Proposed article for Orange Co. Bar Ass'n publication Nice work; and the timing of publication works out well----Joe Joseph L. Amos, Jr.Attorney at LawFisher, Rushmer, Werrenrath,Dickson, Talley & Dunlap, P.A.P.O. Box 712Orlando, FL 32802-0712(407) 843-2111 - main office(407) 535-4868 - direct telephone

APPENDIX H 266

(407) 535-4795 - direct fax

From: Caldwell, Jr. , Dick [mailto:[email protected]] Sent: Tuesday, November 10, 2009 3:13 PMTo: Tracy Gunn; Joseph Amos; Lucy Chernow Brown; Ralph Artigliere; Rebecca Mercier-Vargas; Barton, James ; [email protected]; Amy Skees; Jodi B JenningsCc: Barton, James ; Lang, Joseph H.; Wagner, Alan; Amy Skees; Ramkissoon, ZitaSubject: RE: Proposed article for Orange Co. Bar Ass'n publicationThx., Tracy. Yes, those clarifications sound very appropriate, and I'll insert them into the final version. I'll also forward the paper to Judge Kest and Bill Hahn as you suggest. By the bye, I just got word from LaShawnda that her next issue won't come out until January. By that time, the Artigliere-Barton-Hahn article may have already been published, and it's conceivable that our report to the Supreme Court may have been submitted. I'll stay on top of developments in any event.

From: Tracy Gunn [mailto:[email protected]] Sent: Tuesday, November 10, 2009 3:02 PMTo: Caldwell, Jr. , Dick; 'Joseph Amos'; 'Lucy Chernow Brown'; 'Ralph Artigliere'; 'Rebecca Mercier-Vargas'; 'Barton, James '; [email protected]; 'Amy Skees'; 'Jodi B Jennings'Cc: 'Barton, James '; 'Lang, Joseph H.'; 'Wagner, Alan'; 'Amy Skees'; Ramkissoon, ZitaSubject: RE: Proposed article for Orange Co. Bar Ass'n publicationDick, thank you for sharing this with us. It’s really well done. I’ll leave it to the subcommittee and those cited or quoted to comment specifically on the content. On a quick reading I do have one suggestion. You have outlined some of the committee decisions and recommendations at the top of page 3. To avoid any confusion, would you consider making it clear that (1) the committee has not yet submitted a final proposal (as far as I know the criminal com has not even met or voted on this, and our committee just received the final revisions last week), and (2) the court will need to approve any committee proposal? Also, just a suggestion – do you want to also send this to Bill Hahn and Judge Kest since their work is cited? Best regards,Tracy Tracy Raffles GunnBoard Certified Appellate AttorneyGUNN APPELLATE PRACTICE P.A.400 North Ashley Drive Suite 2055Tampa, FL 33602phone (813) 254-3183fax (813) 254-3258email [email protected] From: Caldwell, Jr. , Dick [mailto:[email protected]]

APPENDIX H 267

Sent: Tuesday, November 10, 2009 2:40 PMTo: Joseph Amos; Lucy Chernow Brown; Ralph Artigliere; Rebecca Mercier-Vargas; [email protected]; Barton, James ; [email protected]; Amy Skees; Jodi B JenningsCc: [email protected]; Barton, James ; Lang, Joseph H.; Wagner, Alan; Amy Skees; Ramkissoon, ZitaSubject: Proposed article for Orange Co. Bar Ass'n publication All: one of the lawyers in our Orlando office, LaShawnda Jackson, is co-editor of "The Briefs ," the OCBA monthly publication, and has put out a call for articles. I drafted up the attached short paper, which hopefully gives an overview of the issue of juror "internet" use, and refers to our upcoming submission to the Supreme Court. As you can see, it cites the Jim Edwards and Artigliere-Barton-Hahn articles, and draws on discussions in the Committee and subcommittee concerning possible approaches. Because the paper refers to things which haven't come out yet (at least as of this moment), such as our Committee's submission, and the Artigliere-Barton-Hahn article, it seemed appropriate to run this past the group to see if everybody was OK with me submitting it at this time. Let me know any thoughts at your early convenience. I'd like to get this over to LaShawnda ASAP.

From: Caldwell, Jr. , Dick Sent: Thursday, October 29, 2009 12:52 PMTo: 'Joseph Amos'; Lucy Chernow Brown; Ralph Artigliere; Rebecca Mercier-Vargas; [email protected]; Barton, James ; [email protected]; Amy Skees; Jodi B JenningsCc: [email protected]; Barton, James ; Lang, Joseph H.; Wagner, Alan; Amy SkeesSubject: RE: revised instructions on electronic devices following civil 10/09 meeting Joe: Dec. 11 is open on the calendar, and I'm glad to sit in.

From: Joseph Amos [mailto:[email protected]] Sent: Thursday, October 29, 2009 10:51 AMTo: Lucy Chernow Brown; Ralph Artigliere; Rebecca Mercier-Vargas; [email protected]; Barton, James ; Caldwell, Jr. , Dick; [email protected]; Amy Skees; Jodi B JenningsCc: [email protected]; Barton, James ; Lang, Joseph H.; Wagner, Alan; Amy SkeesSubject: RE: revised instructions on electronic devices following civil 10/09 meeting All, I've reviewed all recent emails (responding to Rebecca's of 10/26) and also agree with Ralph's comments and input. Unless there are other suggestions, I believe the next step was, after our subcomm agreed, to forward the final proposed revisions to the whole committee, for final input. ( Hopefully any tweaking by the larger committee will be minimal ---dare we hope ? but tis true we benefit from many eyes and minds) Then, our proposed draft goes to the Criminal JI committee for their meeting in December.

APPENDIX H 268

That meeting is in Tampa, Dec 11. I'll go to that and Dick, I welcome your company if you're available. Anyone else who would like to attend is encouraged to do so. Let me know and we can talk about that later next month. Thank you Rebecca for volunteering (once again) to begin drafting now the report which eventually is submitted to the Fla Supreme Court. Our deadline is January 11, 2010 and is to be a joint report/approach with the Criminal committee. Anyone who would like to contribute, also please do so and connect with Rebecca. Our teleconferences generated alot of good sound suggestions for explaining and educating jurors on this topic, and doing so in the jury assembly room. It's my opinion the more concrete recommendations we make and include in the final report, the better. That's probably the best place too for us to mention the different ways various trial courts manage cell phones, PDAs etc. Tracy, I remember the issue of "publishing " coming up during our recent meeting, but don't remember the resolution or plan. Are we to publish our proposal in the Bar Briefs ? Guidance please. I believe that covers it--- let me know if I've overlooked something, or a point of procedure. Thanks to everyone for the continued work. ---Joe Joseph L. Amos, Jr.Attorney at LawFisher, Rushmer, Werrenrath,Dickson, Talley & Dunlap, P.A.P.O. Box 712Orlando, FL 32802-0712(407) 843-2111 - main office(407) 535-4868 - direct telephone(407) 535-4795 - direct fax

From: Lucy Chernow Brown [mailto:[email protected]] Sent: Monday, October 26, 2009 1:25 PMTo: Ralph Artigliere; Rebecca Mercier-Vargas; [email protected]; Joseph Amos; Barton, James ; Caldwell, Jr. , Dick; [email protected]; Amy Skees; Jodi B JenningsSubject: RE: revised instructions on electronic devices following civil 10/09 meeting I agree and concur with Ralph's comments, in their entirety. lcb From: Ralph Artigliere [mailto:[email protected]] Sent: Monday, October 26, 2009 11:53 AMTo: Rebecca Mercier-Vargas; [email protected]; [email protected]; Lucy Chernow Brown; Barton, James ; Caldwell, Jr. , Dick; [email protected]; Amy Pratt; Jodi B JenningsSubject: Re: revised instructions on electronic devices following civil 10/09 meeting Rebecca--

APPENDIX H 269

Nice job, as always. Did we get a phone conference time agreed upon? Here is my input re your questions: The Note on change in technology needs to go at the end with the other notes on use, otherwise it may be mistaken as part of the instruction. I might suggest that we can do this without asterisk by expanding the note slightly: "The portions of this instruction dealing with communication with others and outside research may need to be modified to include other specified means of communication or research as technology develops." I suggest that we repeat the note for each instruction to which it applies, not just the first one. With regard to 700, I personally do not feel we should say the judge may need to modify the instruction if cell phones and ipods are collected up during deliberations. To me that implicitly supports the idea that the judge has the option to allow cell phones to go into the jury room. I think that is bad practice and should not be encouraged, even by implication. If the judge collects cell phones, he or she can deal with what the jurors are told. Since we are not suggesting language, there is no need to mention it in my view. I think the format you used for 7.2 was clear to me. We may want to put an explanation in the report narrative that goes along with these so there is no doubt why there are two submissions of the same instruction. Ralph ----- Original Message ----- From: Rebecca Mercier-Vargas To: [email protected] ; [email protected] ; [email protected] ; [email protected] ; Barton, James ; Caldwell, Jr. , Dick ; [email protected] ; Amy Pratt ; Jodi B Jennings Sent: Monday, October 26, 2009 10:30 AMSubject: revised instructions on electronic devices following civil 10/09 meeting It was great seeing all of you at our meeting. I’ve attached for your review the revised instructions, as discussed at our meeting. As I was reviewing these changes, I came up with a few questions for you all that I thought we could address before circulating this to the full committee. First, in instruction 1.0, at the meeting we the committee decided to add a note on use in the middle of this instruction:


I have two questions about this: (1) placement—should the note be in the middle of 1.0 or at the end of the instruction, with the existing note on use; and (2) should we add a similar note on use to all the other instructions (qualifications, 1.1, and 700). I think this concept applies to each of the instructions we are proposing and would suggest adding this note to each instruction. Second, I believe that the committee agreed to add a note on use to the closing instruction (700) stating that the trial judge might need to modify this instruction if he or she is collecting the cell phones during deliberations. However, we did not draft any language for this note. Was it your understanding that we were going to add a note to this effect? Third, please take a look at instruction 7.2. I used italicized language to show the changes that have

APPENDIX H 270

already been suggested and are pending in instruction 700. Let me know if you think this format will make this clear to the court. Thanks very much.


--------------------------------------------------------------------------------






APPENDIX H 271

"Robert E. Austin, Jr." <[email protected]>

11/16/2009 10:15 AM

To "Tracy Gunn" <[email protected]>, "'Lucy Chernow Brown'" <[email protected]>, "'Rebecca Mercier-Vargas'" <[email protected]>, "'Caldwell, Jr. ,


bcc

Subject Re: instructions on jurors & electronic devices

Agreed. I will forward our proposal to the the business jury instructions committee. Bob Robert E. Austin, Jr.Robert E. Austin, Jr. Law Offices1330 Citizens Blvd., Ste. 401P. O. Box 490200Leesburg, FL 34749-0200352-728-1020352-728-0595 (fax)----- Original Message ----- From: Tracy Gunn To: 'Lucy Chernow Brown' ; 'Rebecca Mercier-Vargas' ; 'Caldwell, Jr. , Dick' ; 'Ralph Artigliere' ; 'Graham, Wendell' ; 'Tom Edwards' ; 'Jodi B Jennings' ; 'Amos, Joseph' ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; 'Boyer, Tyrie' ; 'Mary Ellis' ; [email protected] ; [email protected] ; 'Farmer, Gary' ; [email protected] ; 'Fulford, Jeffrey' ; 'Gertz, Sally' ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; 'LaRose, Edward' ; [email protected] ; [email protected] ; [email protected] ; 'Whitmore, Laura' ; 'Richards, John' ; 'Tracy Wasserman' ; [email protected] ; 'Mary Masferrer' ; 'Wagner, Alan' ; 'Campo, Alla n' ; 'Bagley, Jerald' ; 'Barnett, Karen' ; 'Burlington, Philip' ; [email protected] ; 'DeMahy, Pedro (Pe te)' ; 'Francis, Gregorio' ; 'Hinkle, Donald' ; 'Ingra m, J.' ; 'Kest, John' ; 'Lytal, Lake' ; 'McCloy, Dixon' ; 'Rose nbloum, Louis' ; 'Roth, Neal' ; 'Russo, Elizabeth' ; 'Sass, C ynthia' ; 'Iacone, Diane' ; 'Cour tney Stringfield' Cc: [email protected] ; [email protected] ; [email protected] ; [email protected] Sent: Monday, November 16, 2009 9:35 AMSubject: RE: instructions on jurors & electronic devicesAs always, thanks to everyone for your thoughtful consideration. As you all know, we are in an unusual time crunch with this project given the Court’s deadline and request that we submit a joint instruction with the criminal committee. We all worked very hard to get these instructions through the drafting process prior to the October meeting so that we could finalize them at that meeting. We did finalize the instructions at the October meeting, with a few notes on use approved in principle and left to the subcommittee to prepare and circulate for final approval. We do not have another Committee meeting prior to the Court’s deadline.

APPENDIX H 272

It appears that the attachment to Rebecca’s 11/6 email accurately reflects what the full Committee (along with the liaison from the criminal committee) agreed upon at the October meeting. With the exception of Jim Barton’s minor procedural additional to the note on the qualification instructions, I haven’t seen anyone raise any issues with the notes that the subcommittee prepared to effectuate the Committee’s decisions at the October meeting. Even absent time constraints, while a few members have proposed revisions to the approved language, it appears from these email discussions that the majority of the Committee still prefers to use the previously approved language. Importantly, the version approved at the October meeting was approved by the criminal subcommittee and liaison, and allows us to present a joint proposal as ordered by the Court. Because of all these factors, I am going to suggest that we let the subcommittee move forward with preparing the submission to the court as approved at the October meeting. The alternate language discussed in all of these emails will be included in our submission and will be available for the Court to consider. If anyone disagrees with this procedure, please let me know. Best regards,Tracy Tracy Raffles GunnBoard Certified Appellate AttorneyGUNN APPELLATE PRACTICE P.A.400 North Ashley Drive Suite 2055Tampa, FL 33602phone (813) 254-3183fax (813) 254-3258email [email protected] From: Lucy Chernow Brown [mailto:[email protected]] Sent: Monday, November 16, 2009 8:19 AMTo: Rebecca Mercier-Vargas; Caldwell, Jr. , Dick; Ralph Artigliere; Graham, Wendell; Tom Edwards; Tracy Gunn; Jodi B Jennings; Amos, Joseph; [email protected]; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; Mary Ellis; [email protected]; [email protected]; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; Wagner, Alan; Campo, Alla n; Bagley, Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro (Pe te); Francis, Gregorio; Hinkle, Donald; Ingra m, J.; Kest, John; Lytal, Lake; McCloy, Dixon; Rose nbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, C ynthia; Iacone, Diane; Cour tney StringfieldCc: [email protected]; [email protected]; [email protected]; [email protected]: RE: instructions on jurors & electronic devices As I think about this again, I believe we should stick with the shorter, more general language we originally agreed on in the subcommittee. lcb

APPENDIX H 273

From: Rebecca Mercier-Vargas [mailto:[email protected]] Sent: Thursday, November 12, 2009 4:26 PMTo: Caldwell, Jr. , Dick; Ralph Artigliere; Graham, Wendell; Tom Edwards; Tracy Gunn; Jodi B Jennings; Amos, Joseph; [email protected]; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; Lucy Chernow Brown; Mary Ellis; [email protected]; [email protected]; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; Wagner, Alan; Campo, Alla n; Bagley, Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro (Pe te); Francis, Gregorio; Hinkle, Donald; Ingra m, J.; Kest, John; Lytal, Lake; McCloy, Dixon; Rose nbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, C ynthia; Iacone, Diane; Cour tney StringfieldCc: [email protected]; [email protected]; [email protected]; [email protected]: RE: instructions on jurors & electronic devices I wanted to chime in with some additional background on whether to instruct jurors not to perform on the “people and places” related to the case or to give jurors a longer and more specific list of the types of people they should not be researching. When the subcommittees looked at this issue, we discussed using a longer version that specifically listed all the different types of people that jurors should not be looking up on the Internet. The list of people involved in the case grew pretty long (parties, witnesses, attorneys, judges). The more inclusive instruction seemed a bit unwieldy. In addition, some members of the criminal instructions subcommittee voiced strong reservations about the overall length of these instructions. For these reasons, my preference is to stick with the current shorter version. This is the current version from preliminary instruction 1.0:

You must not do any research or look up words, names, [maps], or anything else that may have anything to do with this case. This includes reading newspapers, watching television or using a computer, cell phone, the Internet, any electronic device, or any other means at all, to get information related to this case or the people and places involved in this case. This applies whether you are in the courthouse, at home, or anywhere else. If the committee disagrees and wants to go with a more specific list, I think that we would need a second sentence after “the people and places involved in this case,” such as “This means you should not be getting information about the parties, witnesses, attorneys, judge, or other people involved in this case.” Rebecca Mercier Vargas, Esq.Board Certified Appellate LawyerKreusler-Walsh, Compiani & Vargas P.A.501 South Flagler Drive, Suite 503West Palm Beach, Florida 33401Telephone: (561) 659-5455Facsimile: (561) 820-8762

From: Caldwell, Jr. , Dick [mailto:[email protected]] Sent: Wednesday, November 11, 2009 9:54 AMTo: Ralph Artigliere; Graham, Wendell; Tom Edwards; Tracy Gunn; Jodi B Jennings; Amos, Joseph; [email protected]; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; [email protected]; [email protected];

APPENDIX H 274

[email protected]; [email protected]; Farmer, Gary; [email protected]; Fulford,Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; Rebecca Mercier-Vargas; Wagner, Alan; Campo, Alla n; Bagley, Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro (Pe te); Francis, Gregorio; Hinkle, Donald; Ingra m, J.; Kest, John; Lytal, Lake; McCloy, Dixon; Rose nbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, C ynthia; Iacone, Diane; Cour tney StringfieldCc: [email protected]; [email protected]; [email protected]; [email protected]: RE: instructions on jurors & electronic devices I agree with Ralph's comments. The article by Mike Hoenig which was circulated before the last meeting discusses the importance of voire dire in both educating jurors on what not to do, and in ferreting out those individuals who are likely to disregard the instructions. Good lawyers and judges can handle these situations as they arise.

From: Ralph Artigliere [mailto:[email protected]] Sent: Wednesday, November 11, 2009 8:42 AMTo: Graham, Wendell; Tom Edwards; Tracy Gunn; Jodi B Jennings; Amos, Joseph; [email protected]; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; [email protected]; [email protected]; [email protected]; [email protected]; Caldwell, Jr. , Dick; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; [email protected]; Wagner, Alan; Campo, Alla n; Bagley, Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro (Pe te); Francis, Gregorio; Hinkle, Donald; Ingra m, J.; Kest, John; Lytal, Lake; McCloy, Dixon; Rose nbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, C ynthia; Iacone, Diane; Cour tney StringfieldCc: [email protected]; [email protected]; [email protected]; [email protected]: Re: instructions on jurors & electronic devicesTom and Committee, At some point in the process, the joint subcommittee (crim and civil) considered the language "including the lawyers, parties, the judge," but even that added language would exclude witnesses. The idea is that the collective term already includes all persons involved in the case. How about Googling other jurors? It's a question of how far we go with any list and how long we want to make our instructions.[1] I personally think judges can use their own discretion to put this type of information out to jurors, and we should go with the standard instruction as is. This Friday Judge Barton and I are teaching judges "Communication with the Jury" in Inverness, and we will discuss (as I believe our note on use says), that preliminary instructions may be modified slightly to suit the case and the local or individual preferences of the judge. We will discuss language like this that may supplement the instruction, or the judge may stick strictly to the standard. Plus any lawyer who feels strongly about this can handle it in voir dire. But there is a down side in the judge or lawyer doing so (see next paragraph). A text on juror behavior by Amy Posey that we considered in writing the Bar Journal article discussed the concept of the specifying prohibited behavior to jurors (such as "don't Google the lawyers") as causing a "reactance effect"

APPENDIX H 275

in which jurors may be tempted to do exactly what was denied them by power of suggestion. [Posey, Amy and Wrightsman, Lawrence S., TRIAL CONSULTING, at p. 145 (Oxford Univ. Press 2005)]. I am not saying this prevents us from telling jurors what not to do, but I am saying that this addition may suggest to some a very specific and easy way to satisfy their curiosity about lawyers or judge. I do not feel strongly enough to oppose Tom's suggestion. I am merely saying more specific instruction was considered at length and rejected on a quite reasonable basis, and I think we need to get on with this process. Ralph

[1] In fact, when I was a judge, on the very first break I always told the jurors they were not to discuss the case and anyone involved in the case, including the parties, the lawyers, or me,the judge, among themselves or with anyone else. I then told them they could tell those who needed to know, like their boss, loved ones, or babysitter, that they were under consideration to be on a jury and that jury duty may last [whenever it may be over]. Other than that... no discussing anything about the case. However, the context of that early instruction had to do with keeping jurors from discussing the case; not researching about it it. However, it was supplemental to the standard and shows what judges can lawfully do if they want to. ----- Original Message ----- From: "Graham, Wendell" <[email protected]>To: "Tom Edwards" <[email protected]>; "Ralph Artigliere" <[email protected]>; "Tracy Gunn" <[email protected]>; "Jodi B Jennings" <[email protected]>; "Amos, Joseph" <[email protected]>; <[email protected]>; <[email protected]>; <[email protected]>; <[email protected]>; "Boyer, Tyrie" <[email protected]>; <[email protected]>; <[email protected]>; <[email protected]>; <[email protected]>; <[email protected]>; "Farmer, Gary" <[email protected]>; <[email protected]>; "Fulford, Jeffrey" <[email protected]>; "Gertz, Sally" <[email protected]>; <[email protected]>; <[email protected]>; <[email protected]>; <[email protected]>; "LaRose, Edward" <[email protected]>; <[email protected]>; <[email protected]>; <[email protected]>; "Whitmore, Laura" <[email protected]>; "Richards, John" <[email protected]>; "Tracy Wasserman" <[email protected]>; <[email protected]>; "Mary Masferrer" <[email protected]>; <[email protected]>; "Wagner, Alan" <[email protected]>; "Campo, Alla n" <[email protected]>; "Bagley, Jerald" <[email protected]>; "Barnett, Karen" <[email protected]>; "Burlington, Philip" <[email protected]>; <[email protected]>; "DeMahy, Pedro (Pe te)" <[email protected]>; "Francis, Gregorio" <[email protected]>; "Hinkle, Donald" <[email protected]>; "Ingra m, J." <[email protected]>; "Kest, John" <[email protected]>; "Lytal, Lake" <[email protected]>; "McCloy, Dixon" <[email protected]>; "Rose nbloum, Louis" <[email protected]>; "Roth, Neal" <[email protected]>; "Russo, Elizabeth" <[email protected]>; "Sass, C ynthia" <[email protected]>; "Iacone, Diane" <[email protected]>; "Cour tney Stringfield" <[email protected]>Cc: <[email protected]>; <[email protected]>; <[email protected]>; <[email protected]>Sent: Wednesday, November 11, 2009 12:25 AMSubject: RE: instructions on jurors & electronic devices I agree. A worthy tweek, but make only if it can be done without delaying submission to court.

--- original message ---From: "Tom Edwards" <[email protected]>Subject: RE: instructions on jurors & electronic devicesDate: November 10, 2009

APPENDIX H 276

Time: 4:38:55 PM



________________________________

From: Ralph Artigliere [mailto:[email protected]] Sent: Tuesday, November 10, 2009 3:40 PMTo: Tracy Gunn; 'Jodi B Jennings'; 'Amos, Joseph';[email protected]; [email protected];[email protected]; [email protected]; 'Boyer, Tyrie';[email protected]; [email protected];[email protected]; [email protected]; [email protected]; TomEdwards; 'Farmer, Gary'; [email protected]; 'Fulford, Jeffrey';'Gertz, Sally'; [email protected]; [email protected];[email protected]; [email protected]; [email protected]; 'LaRose,Edward'; [email protected]; [email protected];[email protected]; 'Whitmore, Laura'; 'Richards, John'; 'TracyWasserman'; [email protected]; 'Mary Masferrer'; [email protected];'Wagner, Alan'; 'Campo, Allan'; 'Bagley, Jerald'; 'Barnett, Karen';

APPENDIX H 277

'Burlington, Philip'; [email protected]; 'DeMahy, Pedro(Pete)'; 'Francis, Gregorio'; 'Hinkle, Donald'; 'Ingram, J.'; 'Kest,John '; 'Lytal, Lake'; 'McCloy, Dixon'; 'Rosenbloum, Louis'; 'Roth,Neal'; 'Russo, Elizabeth'; 'Sass, Cynthia'; 'Iacone, Diane'; CourtneyStringfieldCc: [email protected]; [email protected];[email protected]; [email protected]: Re: instructions on jurors & electronic devices


----- Original Message ----- From: Tracy Gunn <mailto:[email protected]> To: 'Jodi B Jennings' <mailto:[email protected]> ; 'Amos,Joseph' <mailto:[email protected]> ; [email protected] ; 'Artigliere, Ralph' <mailto:[email protected]> ; [email protected] ; [email protected] ; [email protected] ; 'Boyer, Tyrie' <mailto:[email protected]> ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; 'Edwards, Thomas' <mailto:[email protected]> ; 'Farmer, Gary'<mailto:[email protected]> ; [email protected] ; 'Fulford,Jeffrey' <mailto:[email protected]> ; 'Gertz, Sally'<mailto:[email protected]> ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; 'LaRose, Edward' <mailto:[email protected]>; [email protected] ; [email protected] ; [email protected] ; 'Whitmore, Laura'<mailto:[email protected]> ; 'Richards, John'<mailto:[email protected]> ; 'Tracy Wasserman'<mailto:[email protected]> ; [email protected] ; 'MaryMasferrer' <mailto:[email protected]> ; [email protected] ; 'Wagner,Alan' <mailto:[email protected]> ; 'Campo, Allan'<mailto:[email protected]> ; 'Bagley, Jerald'<mailto:[email protected]> ; 'Barnett, Karen'<mailto:[email protected]> ; 'Burlington, Philip'<mailto:[email protected]> ; [email protected] ; 'DeMahy, Pedro (Pete)' <mailto:[email protected]> ; 'Francis,Gregorio' <mailto:[email protected]> ; 'Hinkle, Donald'<mailto:[email protected]> ; 'Ingram, J.' <mailto:[email protected]>; 'Kest, John ' <mailto:[email protected]> ; 'Lytal, Lake'<mailto:[email protected]> ; 'McCloy, Dixon'<mailto:[email protected]> ; 'Rosenbloum, Louis'<mailto:[email protected]> ; 'Roth, Neal'<mailto:[email protected]> ; 'Russo, Elizabeth'<mailto:[email protected]> ; 'Sass, Cynthia'<mailto:[email protected]> ; 'Iacone, Diane'<mailto:[email protected]> ; 'Stringfield, Courtney'<mailto:[email protected]> Cc: [email protected] ; [email protected] ;

APPENDIX H 278

[email protected] ; [email protected] Sent: Tuesday, November 10, 2009 2:55 PMSubject: RE: instructions on jurors & electronic devices


Tracy Raffles Gunn




Tampa, FL 33602

phone (813) 254-3183

fax (813) 254-3258



APPENDIX H 279



11/06/2009 01:52 PM

To


cc


Subject



NOTE ON USE

The portion of this instruction dealing with communication withothers and outside research may need to be modified to include otherspecified means of communication or research as technology develops.

APPENDIX H 280

Rebecca Mercier Vargas, Esq. Board Certified Appellate Lawyer Kreusler-Walsh, Compiani, & Vargas P.A. 501 South Flagler Drive, Suite 503 West Palm Beach, Florida 33401 Telephone: (561) 659-5455 Facsimile: (561) 820-8762

--------------------------------------------------------------------------------



APPENDIX H 281

"Boyer, Tyrie" <[email protected]>

11/16/2009 10:22 AM

To "Ralph Artigliere" <[email protected]>, "Lucy Chernow Brown" <[email protected]>, "Rebecca Mercier-Vargas" <[email protected]>, "Caldwell, Jr. , Dick"


bcc


me too

From: Ralph Artigliere [mailto:[email protected]] Sent: Monday, November 16, 2009 9:33 AMTo: Lucy Chernow Brown; Rebecca Mercier-Vargas; Caldwell, Jr. , Dick; Graham, Wendell; Tom Edwards; Tracy Gunn; Jodi B Jennings; Amos, Joseph; [email protected]; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; Mary Ellis; [email protected]; [email protected]; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; Wagner, Alan; Campo, Alla n; Bagley, Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro (Pe te); Francis, Gregorio; Hinkle, Donald; Ingra m, J.; Kest, John; Lytal, Lake; McCloy, Dixon; Rose nbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, C ynthia; Iacone, Diane; Cour tney StringfieldCc: [email protected]; [email protected]; [email protected]; [email protected]: Re: instructions on jurors & electronic devices

I agree with Lucy----- Original Message ----- From: Lucy Chernow Brown To: Rebecca Mercier-Vargas ; Caldwell, Jr. , Dick ; Ralph Artigliere ; Graham, Wendell ; Tom Edwards ; Tracy Gunn ; Jodi B Jennings ; Amos, Joseph ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; Boyer, Tyrie ; Mary Ellis ; [email protected] ; [email protected] ; Farmer, Gary ; [email protected] ; Fulford, Jeffrey ; Gertz, Sally ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; LaRose, Edward ; [email protected] ; [email protected] ; [email protected] ; Whitmore, Laura ; Richards, John ; Tracy Wasserman ; [email protected] ; Mary Masferrer ; Wagner, Alan ; Campo, Alla n ; Bagley, Jerald ; Barnett, Karen ; Burlington, Philip ; [email protected] ; DeMahy, Pedro (Pe te) ; Francis, Gregorio ; Hinkle, Donald ; Ingra m, J. ; Kest, John ; Lytal, Lake ; McCloy, Dixon ; Rose nbloum, Louis ; Roth, Neal ; Russo, Elizabeth ; Sass, C ynthia ; Iacone, Diane ; Cour tney Stringfield Cc: [email protected] ; [email protected] ; [email protected] ; [email protected] Sent: Monday, November 16, 2009 8:19 AMSubject: RE: instructions on jurors & electronic devicesAs I think about this again, I believe we should stick with the shorter, more general language we originally agreed on in the subcommittee. lcb From: Rebecca Mercier-Vargas [mailto:[email protected]] Sent: Thursday, November 12, 2009 4:26 PM

APPENDIX H 282

To: Caldwell, Jr. , Dick; Ralph Artigliere; Graham, Wendell; Tom Edwards; Tracy Gunn; Jodi B Jennings;Amos, Joseph; [email protected]; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; Lucy Chernow Brown; Mary Ellis; [email protected]; [email protected]; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; Wagner, Alan; Campo, Alla n; Bagley, Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro (Pe te); Francis, Gregorio; Hinkle, Donald; Ingra m, J.; Kest, John; Lytal, Lake; McCloy, Dixon; Rose nbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, C ynthia; Iacone, Diane; Cour tney StringfieldCc: [email protected]; [email protected]; [email protected]; [email protected]: RE: instructions on jurors & electronic devices I wanted to chime in with some additional background on whether to instruct jurors not to perform on the “people and places” related to the case or to give jurors a longer and more specific list of the types of people they should not be researching. When the subcommittees looked at this issue, we discussed using a longer version that specifically listed all the different types of people that jurors should not be looking up on the Internet. The list of people involved in the case grew pretty long (parties, witnesses, attorneys, judges). The more inclusive instruction seemed a bit unwieldy. In addition, some members of the criminal instructions subcommittee voiced strong reservations about the overall length of these instructions. For these reasons, my preference is to stick with the current shorter version. This is the current version from preliminary instruction 1.0:


From: Caldwell, Jr. , Dick [mailto:[email protected]] Sent: Wednesday, November 11, 2009 9:54 AMTo: Ralph Artigliere; Graham, Wendell; Tom Edwards; Tracy Gunn; Jodi B Jennings; Amos, Joseph; [email protected]; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; [email protected]; [email protected]; [email protected]; [email protected]; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected];

APPENDIX H 283

[email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; Rebecca Mercier-Vargas; Wagner, Alan; Campo, Alla n; Bagley, Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro (Pe te); Francis, Gregorio; Hinkle, Donald; Ingra m, J.; Kest, John; Lytal, Lake; McCloy, Dixon; Rose nbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, C ynthia; Iacone, Diane; Cour tney StringfieldCc: [email protected]; [email protected]; [email protected]; [email protected]: RE: instructions on jurors & electronic devices I agree with Ralph's comments. The article by Mike Hoenig which was circulated before the last meeting discusses the importance of voire dire in both educating jurors on what not to do, and in ferreting out those individuals who are likely to disregard the instructions. Good lawyers and judges can handle these situations as they arise.

From: Ralph Artigliere [mailto:[email protected]] Sent: Wednesday, November 11, 2009 8:42 AMTo: Graham, Wendell; Tom Edwards; Tracy Gunn; Jodi B Jennings; Amos, Joseph; [email protected]; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; [email protected]; [email protected]; [email protected]; [email protected]; Caldwell, Jr. , Dick; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; [email protected]; Wagner, Alan; Campo, Alla n; Bagley, Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro (Pe te); Francis, Gregorio; Hinkle, Donald; Ingra m, J.; Kest, John; Lytal, Lake; McCloy, Dixon; Rose nbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, C ynthia; Iacone, Diane; Cour tney StringfieldCc: [email protected]; [email protected]; [email protected]; [email protected]: Re: instructions on jurors & electronic devicesTom and Committee, At some point in the process, the joint subcommittee (crim and civil) considered the language "including the lawyers, parties, the judge," but even that added language would exclude witnesses. The idea is that the collective term already includes all persons involved in the case. How about Googling other jurors? It's a question of how far we go with any list and how long we want to make our instructions.[1] I personally think judges can use their own discretion to put this type of information out to jurors, and we should go with the standard instruction as is. This Friday Judge Barton and I are teaching judges "Communication with the Jury" in Inverness, and we will discuss (as I believe our note on use says), that preliminary instructions may be modified slightly to suit the case and the local or individual preferences of the judge. We will discuss language like this that may supplement the instruction, or the judge may stick strictly to the standard. Plus any lawyer who feels strongly about this can handle it in voir dire. But there is a down side in the judge or lawyer doing so (see next paragraph). A text on juror behavior by Amy Posey that we considered in writing the Bar Journal article discussed the concept of the specifying prohibited behavior to jurors (such as "don't Google the lawyers") as causing a "reactance effect" in which jurors may be tempted to do exactly what was denied them by power of suggestion. [Posey, Amy and Wrightsman, Lawrence S., TRIAL CONSULTING, at p. 145 (Oxford Univ. Press 2005)]. I am not saying this prevents us from telling jurors what not to do, but I am saying that this addition may suggest to some a very

APPENDIX H 284

specific and easy way to satisfy their curiosity about lawyers or judge. I do not feel strongly enough to oppose Tom's suggestion. I am merely saying more specific instruction was considered at length and rejected on a quite reasonable basis, and I think we need to get on with this process. Ralph



I think the instruction looks good though I have one question and

APPENDIX H 285

thought --- I missed the second day and I don't know if there was debateor discussion about including the word "attorney" or "lawyer" in thephrase that is used throughout the instructions below: to get information related to this case or the people, {attorneys} andplaces involved in this case My understanding is that jurors now commonly search web sites and namesof attorneys involved in trials and it may be good to spell it out


________________________________

From: Ralph Artigliere [mailto:[email protected]] Sent: Tuesday, November 10, 2009 3:40 PMTo: Tracy Gunn; 'Jodi B Jennings'; 'Amos, Joseph';[email protected]; [email protected];[email protected]; [email protected]; 'Boyer, Tyrie';[email protected]; [email protected];[email protected]; [email protected]; [email protected]; TomEdwards; 'Farmer, Gary'; [email protected]; 'Fulford, Jeffrey';'Gertz, Sally'; [email protected]; [email protected];[email protected]; [email protected]; [email protected]; 'LaRose,Edward'; [email protected]; [email protected];[email protected]; 'Whitmore, Laura'; 'Richards, John'; 'TracyWasserman'; [email protected]; 'Mary Masferrer'; [email protected];'Wagner, Alan'; 'Campo, Allan'; 'Bagley, Jerald'; 'Barnett, Karen';'Burlington, Philip'; [email protected]; 'DeMahy, Pedro(Pete)'; 'Francis, Gregorio'; 'Hinkle, Donald'; 'Ingram, J.'; 'Kest,John '; 'Lytal, Lake'; 'McCloy, Dixon'; 'Rosenbloum, Louis'; 'Roth,

APPENDIX H 286

Neal'; 'Russo, Elizabeth'; 'Sass, Cynthia'; 'Iacone, Diane'; CourtneyStringfieldCc: [email protected]; [email protected];[email protected]; [email protected]: Re: instructions on jurors & electronic devices


----- Original Message ----- From: Tracy Gunn <mailto:[email protected]> To: 'Jodi B Jennings' <mailto:[email protected]> ; 'Amos,Joseph' <mailto:[email protected]> ; [email protected] ; 'Artigliere, Ralph' <mailto:[email protected]> ; [email protected] ; [email protected] ; [email protected] ; 'Boyer, Tyrie' <mailto:[email protected]> ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; 'Edwards, Thomas' <mailto:[email protected]> ; 'Farmer, Gary'<mailto:[email protected]> ; [email protected] ; 'Fulford,Jeffrey' <mailto:[email protected]> ; 'Gertz, Sally'<mailto:[email protected]> ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; 'LaRose, Edward' <mailto:[email protected]>; [email protected] ; [email protected] ; [email protected] ; 'Whitmore, Laura'<mailto:[email protected]> ; 'Richards, John'<mailto:[email protected]> ; 'Tracy Wasserman'<mailto:[email protected]> ; [email protected] ; 'MaryMasferrer' <mailto:[email protected]> ; [email protected] ; 'Wagner,Alan' <mailto:[email protected]> ; 'Campo, Allan'<mailto:[email protected]> ; 'Bagley, Jerald'<mailto:[email protected]> ; 'Barnett, Karen'<mailto:[email protected]> ; 'Burlington, Philip'<mailto:[email protected]> ; [email protected] ; 'DeMahy, Pedro (Pete)' <mailto:[email protected]> ; 'Francis,Gregorio' <mailto:[email protected]> ; 'Hinkle, Donald'<mailto:[email protected]> ; 'Ingram, J.' <mailto:[email protected]>; 'Kest, John ' <mailto:[email protected]> ; 'Lytal, Lake'<mailto:[email protected]> ; 'McCloy, Dixon'<mailto:[email protected]> ; 'Rosenbloum, Louis'<mailto:[email protected]> ; 'Roth, Neal'<mailto:[email protected]> ; 'Russo, Elizabeth'<mailto:[email protected]> ; 'Sass, Cynthia'<mailto:[email protected]> ; 'Iacone, Diane'<mailto:[email protected]> ; 'Stringfield, Courtney'<mailto:[email protected]> Cc: [email protected] ; [email protected] ; [email protected] ; [email protected] Sent: Tuesday, November 10, 2009 2:55 PMSubject: RE: instructions on jurors & electronic devices

APPENDIX H 287


Tracy Raffles Gunn




Tampa, FL 33602

phone (813) 254-3183

fax (813) 254-3258




APPENDIX H 288


11/06/2009 01:52 PM

To


cc


Subject



NOTE ON USE

The portion of this instruction dealing with communication withothers and outside research may need to be modified to include otherspecified means of communication or research as technology develops. Rebecca Mercier Vargas, Esq.

APPENDIX H 289

Board Certified Appellate Lawyer Kreusler-Walsh, Compiani, & Vargas P.A. 501 South Flagler Drive, Suite 503 West Palm Beach, Florida 33401 Telephone: (561) 659-5455 Facsimile: (561) 820-8762

--------------------------------------------------------------------------------



APPENDIX H 290


11/16/2009 01:01 PM

To "Alan F. Wagner" <[email protected]>, "'Rebecca Mercier-Vargas'" <[email protected]>, "'Caldwell Jr. Dick'" <[email protected]>, "'Ralph


bcc


I agree also. lcb From: Alan F. Wagner [mailto:[email protected]] Sent: Monday, November 16, 2009 11:45 AMTo: Lucy Chernow Brown; 'Rebecca Mercier-Vargas'; 'Caldwell Jr. Dick'; 'Ralph Artigliere'; 'Graham Wendell'; 'Tom Edwards'; 'Jodi B Jennings'; 'Amos Joseph'; [email protected]; [email protected]; [email protected]; [email protected]; 'Boyer Tyrie'; Mary Ellis; [email protected]; [email protected]; 'Farmer Gary'; [email protected]; 'Fulford Jeffrey'; 'Gertz Sally'; [email protected]; [email protected]; [email protected]; [email protected]; 'LaRose Edward'; [email protected]; [email protected]; [email protected]; 'Whitmore Laura'; 'Richards John'; 'Tracy Wasserman'; [email protected]; 'Mary Masferrer'; 'Campo Alla n'; 'Bagley Jerald'; 'Barnett Karen'; 'Burlington Philip'; [email protected]; 'DeMahy Pedro (Pe te)'; 'Francis Gregorio'; 'Hinkle Donald'; 'Ingra m J.'; 'Kest John'; 'Lytal Lake'; 'McCloy Dixon'; 'Rose nbloum Louis'; 'Roth Neal'; 'Russo Elizabeth'; 'Sass C ynthia'; 'Iacone Diane'; 'Cour tney Stringfield'; Tracy GunnCc: [email protected]; [email protected]; [email protected]; [email protected]: RE: instructions on jurors & electronic devices

Agreed. Sounds like a plan! Alan Wagner -------Original Message------- From: Tracy GunnDate: 11/16/2009 9:35:50 AMTo: 'Lucy Chernow Brown'; 'Rebecca Mercier-Vargas'; 'Caldwell, Jr. , Dick'; 'Ralph Artigliere'; 'Graham, Wendell'; 'Tom Edwards'; 'Jodi B Jennings'; 'Amos, Joseph'; [email protected]; [email protected]; [email protected]; [email protected]; 'Boyer, Tyrie'; 'Mary Ellis'; [email protected]; [email protected]; 'Farmer, Gary'; [email protected]; 'Fulford, Jeffrey'; 'Gertz, Sally'; [email protected]; [email protected]; [email protected]; [email protected]; 'LaRose, Edward'; [email protected]; [email protected]; [email protected]; 'Whitmore, Laura'; 'Richards, John'; 'Tracy Wasserman'; [email protected]; 'Mary Masferrer'; 'Wagner, Alan'; 'Campo, Alla n'; 'Bagley, Jerald'; 'Barnett, Karen'; 'Burlington, Philip'; [email protected]; 'DeMahy, Pedro \(Pe te\)'; 'Francis, Gregorio'; 'Hinkle, Donald'; 'Ingra m, J.'; 'Kest, John'; 'Lytal, Lake'; 'McCloy, Dixon'; 'Rose nbloum, Louis'; 'Roth, Neal'; 'Russo, Elizabeth'; 'Sass, C ynthia'; 'Iacone, Diane'; 'Cour tney Stringfield'Cc: [email protected]; [email protected]; [email protected]; [email protected]: RE: instructions on jurors & electronic devices

APPENDIX H 291

As always, thanks to everyone for your thoughtful consideration. As you all know, we are in an unusual time crunch with this project given the Court’s deadline and request that we submit a joint instruction with the criminal committee. We all worked very hard to get these instructions through the drafting process prior to the October meeting so that we could finalize them at that meeting. We did finalize the instructions at the October meeting, with a few notes on use approved in principle and left to the subcommittee to prepare and circulate for final approval. We do not have another Committee meeting prior to the Court’s deadline. It appears that the attachment to Rebecca’s 11/6 email accurately reflects what the full Committee (along with the liaison from the criminal committee) agreed upon at the October meeting. With the exception of Jim Barton’s minor procedural additional to the note on the qualification instructions, I haven’t seen anyone raise any issues with the notes that the subcommittee prepared to effectuate the Committee’s decisions at the October meeting. Even absent time constraints, while a few members have proposed revisions to the approved language, it appears from these email discussions that the majority of the Committee still prefers to use the previously approved language. Importantly, the version approved at the October meeting was approved by the criminal subcommittee and liaison, and allows us to present a joint proposal as ordered by the Court. Because of all these factors, I am going to suggest that we let the subcommittee move forward with preparing the submission to the court as approved at the October meeting. The alternate language discussed in all of these emails will be included in our submission and will be available for the Court to consider. If anyone disagrees with this procedure, please let me know. Best regards,Tracy Tracy Raffles GunnBoard Certified Appellate AttorneyGUNN APPELLATE PRACTICE P.A.400 North Ashley Drive Suite 2055Tampa, FL 33602phone (813) 254-3183fax (813) 254-3258email [email protected] From: Lucy Chernow Brown [mailto:[email protected]] Sent: Monday, November 16, 2009 8:19 AMTo: Rebecca Mercier-Vargas; Caldwell, Jr. , Dick; Ralph Artigliere; Graham, Wendell; Tom Edwards; Tracy Gunn; Jodi B Jennings; Amos, Joseph; [email protected]; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; Mary Ellis; [email protected]; [email protected]; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards,

APPENDIX H 292

John; Tracy Wasserman; [email protected]; Mary Masferrer; Wagner, Alan; Campo, Alla n; Bagley,Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro (Pe te); Francis, Gregorio; Hinkle, Donald; Ingra m, J.; Kest, John; Lytal, Lake; McCloy, Dixon; Rose nbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, C ynthia; Iacone, Diane; Cour tney StringfieldCc: [email protected]; [email protected]; [email protected]; [email protected]: RE: instructions on jurors & electronic devices As I think about this again, I believe we should stick with the shorter, more general language we originally agreed on in the subcommittee. lcb From: Rebecca Mercier-Vargas [mailto:[email protected]] Sent: Thursday, November 12, 2009 4:26 PMTo: Caldwell, Jr. , Dick; Ralph Artigliere; Graham, Wendell; Tom Edwards; Tracy Gunn; Jodi B Jennings; Amos, Joseph; [email protected]; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; Lucy Chernow Brown; Mary Ellis; [email protected]; [email protected]; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; Wagner, Alan; Campo, Alla n; Bagley, Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro (Pe te); Francis, Gregorio; Hinkle, Donald; Ingra m, J.; Kest, John; Lytal, Lake; McCloy, Dixon; Rose nbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, C ynthia; Iacone, Diane; Cour tney StringfieldCc: [email protected]; [email protected]; [email protected]; [email protected]: RE: instructions on jurors & electronic devices I wanted to chime in with some additional background on whether to instruct jurors not to perform on the “people and places” related to the case or to give jurors a longer and more specific list of the types of people they should not be researching. When the subcommittees looked at this issue, we discussed using a longer version that specifically listed all the different types of people that jurors should not be looking up on the Internet. The list of people involved in the case grew pretty long (parties, witnesses, attorneys, judges). The more inclusive instruction seemed a bit unwieldy. In addition, some members of the criminal instructions subcommittee voiced strong reservations about the overall length of these instructions. For these reasons, my preference is to stick with the current shorter version. This is the current version from preliminary instruction 1.0:

You must not do any research or look up words, names, [maps], or anything else that may have anything to do with this case. This includes reading newspapers, watching television or using a computer, cell phone, the Internet, any electronic device, or any other means at all, to get information related to this case or the people and places involved in this case. This applies whether you are in the courthouse, at home, or anywhere else. If the committee disagrees and wants to go with a more specific list, I think that we would need a second sentence after “the people and places involved in this case,” such as “This means you should not be getting information about the parties, witnesses, attorneys, judge, or other people involved in this case.” Rebecca Mercier Vargas, Esq.Board Certified Appellate LawyerKreusler-Walsh, Compiani & Vargas P.A.501 South Flagler Drive, Suite 503

APPENDIX H 293

West Palm Beach, Florida 33401Telephone: (561) 659-5455Facsimile: (561) 820-8762

From: Caldwell, Jr. , Dick [mailto:[email protected]] Sent: Wednesday, November 11, 2009 9:54 AMTo: Ralph Artigliere; Graham, Wendell; Tom Edwards; Tracy Gunn; Jodi B Jennings; Amos, Joseph; [email protected]; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; [email protected]; [email protected]; [email protected]; [email protected]; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; Rebecca Mercier-Vargas; Wagner, Alan; Campo, Alla n; Bagley, Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro (Pe te); Francis, Gregorio; Hinkle, Donald; Ingra m, J.; Kest, John; Lytal, Lake; McCloy, Dixon; Rose nbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, C ynthia; Iacone, Diane; Cour tney StringfieldCc: [email protected]; [email protected]; [email protected]; [email protected]: RE: instructions on jurors & electronic devices I agree with Ralph's comments. The article by Mike Hoenig which was circulated before the last meeting discusses the importance of voire dire in both educating jurors on what not to do, and in ferreting out those individuals who are likely to disregard the instructions. Good lawyers and judges can handle these situations as they arise.

From: Ralph Artigliere [mailto:[email protected]] Sent: Wednesday, November 11, 2009 8:42 AMTo: Graham, Wendell; Tom Edwards; Tracy Gunn; Jodi B Jennings; Amos, Joseph; [email protected]; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; [email protected]; [email protected]; [email protected]; [email protected]; Caldwell, Jr. , Dick; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; [email protected]; Wagner, Alan; Campo, Alla n; Bagley, Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro (Pe te); Francis, Gregorio; Hinkle, Donald; Ingra m, J.; Kest, John; Lytal, Lake; McCloy, Dixon; Rose nbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, C ynthia; Iacone, Diane; Cour tney StringfieldCc: [email protected]; [email protected]; [email protected]; [email protected]: Re: instructions on jurors & electronic devicesTom and Committee, At some point in the process, the joint subcommittee (crim and civil) considered the language "including the lawyers, parties, the judge," but even that added language would exclude witnesses. The idea is that the collective term already includes all persons involved in the case. How about Googling other jurors? It's a question of how far we go with any list and how long we want to make our instructions.[1] I personally think judges can use their own discretion to put this type of information out to jurors, and we should go with the standard instruction as is. This Friday Judge Barton and I are teaching judges "Communication with the Jury" in Inverness, and we will discuss (as I believe our note on use says), that preliminary instructions may be modified slightly

APPENDIX H 294

to suit the case and the local or individual preferences of the judge. We will discuss language like this that may supplement the instruction, or the judge may stick strictly to the standard. Plus any lawyer who feels strongly about this can handle it in voir dire. But there is a down side in the judge or lawyer doing so (see next paragraph). A text on juror behavior by Amy Posey that we considered in writing the Bar Journal article discussed the concept of the specifying prohibited behavior to jurors (such as "don't Google the lawyers") as causing a "reactance effect" in which jurors may be tempted to do exactly what was denied them by power of suggestion. [Posey, Amy and Wrightsman, Lawrence S., TRIAL CONSULTING, at p. 145 (Oxford Univ. Press 2005)]. I am not saying this prevents us from telling jurors what not to do, but I am saying that this addition may suggest to some a very specific and easy way to satisfy their curiosity about lawyers or judge. I do not feel strongly enough to oppose Tom's suggestion. I am merely saying more specific instruction was considered at length and rejected on a quite reasonable basis, and I think we need to get on with this process. Ralph


APPENDIX H 295




________________________________

From: Ralph Artigliere [mailto:[email protected]] Sent: Tuesday, November 10, 2009 3:40 PMTo: Tracy Gunn; 'Jodi B Jennings'; 'Amos, Joseph';[email protected]; [email protected];[email protected]; [email protected]; 'Boyer, Tyrie';[email protected]; [email protected];[email protected]; [email protected]; [email protected]; TomEdwards; 'Farmer, Gary'; [email protected]; 'Fulford, Jeffrey';'Gertz, Sally'; [email protected]; [email protected];[email protected]; [email protected]; [email protected]; 'LaRose,Edward'; [email protected]; [email protected];

APPENDIX H 296

[email protected]; 'Whitmore, Laura'; 'Richards, John'; 'TracyWasserman'; [email protected]; 'Mary Masferrer'; [email protected];'Wagner, Alan'; 'Campo, Allan'; 'Bagley, Jerald'; 'Barnett, Karen';'Burlington, Philip'; [email protected]; 'DeMahy, Pedro(Pete)'; 'Francis, Gregorio'; 'Hinkle, Donald'; 'Ingram, J.'; 'Kest,John '; 'Lytal, Lake'; 'McCloy, Dixon'; 'Rosenbloum, Louis'; 'Roth,Neal'; 'Russo, Elizabeth'; 'Sass, Cynthia'; 'Iacone, Diane'; CourtneyStringfieldCc: [email protected]; [email protected];[email protected]; [email protected]: Re: instructions on jurors & electronic devices


----- Original Message ----- From: Tracy Gunn <mailto:[email protected]> To: 'Jodi B Jennings' <mailto:[email protected]> ; 'Amos,Joseph' <mailto:[email protected]> ; [email protected] ; 'Artigliere, Ralph' <mailto:[email protected]> ; [email protected] ; [email protected] ; [email protected] ; 'Boyer, Tyrie' <mailto:[email protected]> ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; 'Edwards, Thomas' <mailto:[email protected]> ; 'Farmer, Gary'<mailto:[email protected]> ; [email protected] ; 'Fulford,Jeffrey' <mailto:[email protected]> ; 'Gertz, Sally'<mailto:[email protected]> ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; 'LaRose, Edward' <mailto:[email protected]>; [email protected] ; [email protected] ; [email protected] ; 'Whitmore, Laura'<mailto:[email protected]> ; 'Richards, John'<mailto:[email protected]> ; 'Tracy Wasserman'<mailto:[email protected]> ; [email protected] ; 'MaryMasferrer' <mailto:[email protected]> ; [email protected] ; 'Wagner,Alan' <mailto:[email protected]> ; 'Campo, Allan'<mailto:[email protected]> ; 'Bagley, Jerald'<mailto:[email protected]> ; 'Barnett, Karen'<mailto:[email protected]> ; 'Burlington, Philip'<mailto:[email protected]> ; [email protected] ; 'DeMahy, Pedro (Pete)' <mailto:[email protected]> ; 'Francis,Gregorio' <mailto:[email protected]> ; 'Hinkle, Donald'<mailto:[email protected]> ; 'Ingram, J.' <mailto:[email protected]>; 'Kest, John ' <mailto:[email protected]> ; 'Lytal, Lake'<mailto:[email protected]> ; 'McCloy, Dixon'<mailto:[email protected]> ; 'Rosenbloum, Louis'<mailto:[email protected]> ; 'Roth, Neal'<mailto:[email protected]> ; 'Russo, Elizabeth'<mailto:[email protected]> ; 'Sass, Cynthia'<mailto:[email protected]> ; 'Iacone, Diane'

APPENDIX H 297

<mailto:[email protected]> ; 'Stringfield, Courtney'<mailto:[email protected]> Cc: [email protected] ; [email protected] ; [email protected] ; [email protected] Sent: Tuesday, November 10, 2009 2:55 PMSubject: RE: instructions on jurors & electronic devices


Tracy Raffles Gunn




Tampa, FL 33602

phone (813) 254-3183

fax (813) 254-3258



APPENDIX H 298



11/06/2009 01:52 PM

To


cc


Subject



NOTE ON USE

APPENDIX H 299


--------------------------------------------------------------------------------



APPENDIX H 300

"Tom Edwards" <[email protected]>

11/16/2009 09:58 AM

To "Tracy Gunn" <[email protected]>, "Lucy Chernow Brown" <[email protected]>, "Rebecca Mercier-Vargas" <[email protected]>, "Caldwell, Jr. , Dick"


bcc


I agree Tracy -- great job getting this through quickly --

Thomas S. Edwards, Jr.

Edwards & Ragatz, P.A. Personal Injury and Commercial Trials 501 Riverside Ave., Suite 601, Jacksonville, Florida 32202 Phone 904.399.1609/800.366.1609/Fax 904.399.1615 Email: [email protected] Web Site: edwardsragatz.com THIS E-MAIL TRANSMISSION IS PRIVILEGED AND CONFIDENTIAL. IF YOU ARE NOT THE INTENDED RECIPIENT, DO NOT READ, DISTRIBUTE OR REPRODUCE THIS TRANSMISSION (INCLUDING ANY ATTACHMENTS). IF YOU HAVE RECEIVED THIS E-MAIL IN ERROR, PLEASE NOTIFY THE SENDER BY E-MAIL REPLY AND THEN DELETE THIS E-MAIL. IRS Circular 230 Disclosure. To ensure compliance with requirements imposed by the IRS, we inform you that any federal tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used by any taxpayer, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

From: Tracy Gunn [mailto:[email protected]] Sent: Monday, November 16, 2009 9:35 AMTo: 'Lucy Chernow Brown'; 'Rebecca Mercier-Vargas'; 'Caldwell, Jr. , Dick'; 'Ralph Artigliere'; 'Graham, Wendell'; Tom Edwards; 'Jodi B Jennings'; 'Amos, Joseph'; [email protected]; [email protected]; [email protected]; [email protected]; 'Boyer, Tyrie'; 'Mary Ellis'; [email protected]; [email protected]; 'Farmer, Gary'; [email protected]; 'Fulford, Jeffrey'; 'Gertz, Sally'; [email protected]; [email protected]; [email protected]; [email protected]; 'LaRose, Edward'; [email protected]; [email protected]; [email protected]; 'Whitmore, Laura'; 'Richards, John'; 'Tracy Wasserman'; [email protected]; 'Mary Masferrer'; 'Wagner, Alan'; 'Campo, Alla n'; 'Bagley, Jerald'; 'Barnett, Karen'; 'Burlington, Philip'; [email protected]; 'DeMahy, Pedro (Pe te)'; 'Francis, Gregorio'; 'Hinkle, Donald'; 'Ingra m, J.'; 'Kest, John'; 'Lytal, Lake'; 'McCloy, Dixon'; 'Rose nbloum, Louis'; 'Roth, Neal'; 'Russo, Elizabeth'; 'Sass, C ynthia'; 'Iacone, Diane'; Courtney StringfieldCc: [email protected]; [email protected]; [email protected]; [email protected]: RE: instructions on jurors & electronic devices

As always, thanks to everyone for your thoughtful consideration. As you all know, we are in an

APPENDIX H 301

unusual time crunch with this project given the Court’s deadline and request that we submit a joint instruction with the criminal committee. We all worked very hard to get these instructions through the drafting process prior to the October meeting so that we could finalize them at that meeting. We did finalize the instructions at the October meeting, with a few notes on use approved in principle and left to the subcommittee to prepare and circulate for final approval. We do not have another Committee meeting prior to the Court’s deadline. It appears that the attachment to Rebecca’s 11/6 email accurately reflects what the full Committee (along with the liaison from the criminal committee) agreed upon at the October meeting. With the exception of Jim Barton’s minor procedural additional to the note on the qualification instructions, I haven’t seen anyone raise any issues with the notes that the subcommittee prepared to effectuate the Committee’s decisions at the October meeting. Even absent time constraints, while a few members have proposed revisions to the approved language, it appears from these email discussions that the majority of the Committee still prefers to use the previously approved language. Importantly, the version approved at the October meeting was approved by the criminal subcommittee and liaison, and allows us to present a joint proposal as ordered by the Court. Because of all these factors, I am going to suggest that we let the subcommittee move forward with preparing the submission to the court as approved at the October meeting. The alternate language discussed in all of these emails will be included in our submission and will be available for the Court to consider. If anyone disagrees with this procedure, please let me know. Best regards,Tracy Tracy Raffles GunnBoard Certified Appellate AttorneyGUNN APPELLATE PRACTICE P.A.400 North Ashley Drive Suite 2055Tampa, FL 33602phone (813) 254-3183fax (813) 254-3258email [email protected] From: Lucy Chernow Brown [mailto:[email protected]] Sent: Monday, November 16, 2009 8:19 AMTo: Rebecca Mercier-Vargas; Caldwell, Jr. , Dick; Ralph Artigliere; Graham, Wendell; Tom Edwards; Tracy Gunn; Jodi B Jennings; Amos, Joseph; [email protected]; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; Mary Ellis; [email protected]; [email protected]; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; Wagner, Alan; Campo, Alla n; Bagley,

APPENDIX H 302

Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro (Pe te); Francis,Gregorio; Hinkle, Donald; Ingra m, J.; Kest, John; Lytal, Lake; McCloy, Dixon; Rose nbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, C ynthia; Iacone, Diane; Cour tney StringfieldCc: [email protected]; [email protected]; [email protected]; [email protected]: RE: instructions on jurors & electronic devices As I think about this again, I believe we should stick with the shorter, more general language we originally agreed on in the subcommittee. lcb From: Rebecca Mercier-Vargas [mailto:[email protected]] Sent: Thursday, November 12, 2009 4:26 PMTo: Caldwell, Jr. , Dick; Ralph Artigliere; Graham, Wendell; Tom Edwards; Tracy Gunn; Jodi B Jennings; Amos, Joseph; [email protected]; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; Lucy Chernow Brown; Mary Ellis; [email protected]; [email protected]; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; Wagner, Alan; Campo, Alla n; Bagley, Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro (Pe te); Francis, Gregorio; Hinkle, Donald; Ingra m, J.; Kest, John; Lytal, Lake; McCloy, Dixon; Rose nbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, C ynthia; Iacone, Diane; Cour tney StringfieldCc: [email protected]; [email protected]; [email protected]; [email protected]: RE: instructions on jurors & electronic devices I wanted to chime in with some additional background on whether to instruct jurors not to perform on the “people and places” related to the case or to give jurors a longer and more specific list of the types of people they should not be researching. When the subcommittees looked at this issue, we discussed using a longer version that specifically listed all the different types of people that jurors should not be looking up on the Internet. The list of people involved in the case grew pretty long (parties, witnesses, attorneys, judges). The more inclusive instruction seemed a bit unwieldy. In addition, some members of the criminal instructions subcommittee voiced strong reservations about the overall length of these instructions. For these reasons, my preference is to stick with the current shorter version. This is the current version from preliminary instruction 1.0:

You must not do any research or look up words, names, [maps], or anything else that may have anything to do with this case. This includes reading newspapers, watching television or using a computer, cell phone, the Internet, any electronic device, or any other means at all, to get information related to this case or the people and places involved in this case. This applies whether you are in the courthouse, at home, or anywhere else. If the committee disagrees and wants to go with a more specific list, I think that we would need a second sentence after “the people and places involved in this case,” such as “This means you should not be getting information about the parties, witnesses, attorneys, judge, or other people involved in this case.” Rebecca Mercier Vargas, Esq.Board Certified Appellate LawyerKreusler-Walsh, Compiani & Vargas P.A.501 South Flagler Drive, Suite 503

APPENDIX H 303

West Palm Beach, Florida 33401Telephone: (561) 659-5455Facsimile: (561) 820-8762

From: Caldwell, Jr. , Dick [mailto:[email protected]] Sent: Wednesday, November 11, 2009 9:54 AMTo: Ralph Artigliere; Graham, Wendell; Tom Edwards; Tracy Gunn; Jodi B Jennings; Amos, Joseph; [email protected]; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; [email protected]; [email protected]; [email protected]; [email protected]; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; Rebecca Mercier-Vargas; Wagner, Alan; Campo, Alla n; Bagley, Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro (Pe te); Francis, Gregorio; Hinkle, Donald; Ingra m, J.; Kest, John; Lytal, Lake; McCloy, Dixon; Rose nbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, C ynthia; Iacone, Diane; Cour tney StringfieldCc: [email protected]; [email protected]; [email protected]; [email protected]: RE: instructions on jurors & electronic devices I agree with Ralph's comments. The article by Mike Hoenig which was circulated before the last meeting discusses the importance of voire dire in both educating jurors on what not to do, and in ferreting out those individuals who are likely to disregard the instructions. Good lawyers and judges can handle these situations as they arise.

From: Ralph Artigliere [mailto:[email protected]] Sent: Wednesday, November 11, 2009 8:42 AMTo: Graham, Wendell; Tom Edwards; Tracy Gunn; Jodi B Jennings; Amos, Joseph; [email protected]; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; [email protected]; [email protected]; [email protected]; [email protected]; Caldwell, Jr. , Dick; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; [email protected]; Wagner, Alan; Campo, Alla n; Bagley, Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro (Pe te); Francis, Gregorio; Hinkle, Donald; Ingra m, J.; Kest, John; Lytal, Lake; McCloy, Dixon; Rose nbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, C ynthia; Iacone, Diane; Cour tney StringfieldCc: [email protected]; [email protected]; [email protected]; [email protected]: Re: instructions on jurors & electronic devicesTom and Committee, At some point in the process, the joint subcommittee (crim and civil) considered the language "including the lawyers, parties, the judge," but even that added language would exclude witnesses. The idea is that the collective term already includes all persons involved in the case. How about Googling other jurors? It's a question of how far we go with any list and how long we want to make our instructions.[1] I personally think judges can use their own discretion to put this type of information out to jurors, and we should go

APPENDIX H 304

with the standard instruction as is. This Friday Judge Barton and I are teaching judges "Communication with the Jury" in Inverness, and we will discuss (as I believe our note on use says), that preliminary instructions may be modified slightly to suit the case and the local or individual preferences of the judge. We will discuss language like this that may supplement the instruction, or the judge may stick strictly to the standard. Plus any lawyer who feels strongly about this can handle it in voir dire. But there is a down side in the judge or lawyer doing so (see next paragraph). A text on juror behavior by Amy Posey that we considered in writing the Bar Journal article discussed the concept of the specifying prohibited behavior to jurors (such as "don't Google the lawyers") as causing a "reactance effect" in which jurors may be tempted to do exactly what was denied them by power of suggestion. [Posey, Amy and Wrightsman, Lawrence S., TRIAL CONSULTING, at p. 145 (Oxford Univ. Press 2005)]. I am not saying this prevents us from telling jurors what not to do, but I am saying that this addition may suggest to some a very specific and easy way to satisfy their curiosity about lawyers or judge. I do not feel strongly enough to oppose Tom's suggestion. I am merely saying more specific instruction was considered at length and rejected on a quite reasonable basis, and I think we need to get on with this process. Ralph

[1] In fact, when I was a judge, on the very first break I always told the jurors they were not to discuss the case and anyone involved in the case, including the parties, the lawyers, or me,the judge, among themselves or with anyone else. I then told them they could tell those who needed to know, like their boss, loved ones, or babysitter, that they were under consideration to be on a jury and that jury duty may last [whenever it may be over]. Other than that... no discussing anything about the case. However, the context of that early instruction had to do with keeping jurors from discussing the case; not researching about it it. However, it was supplemental to the standard and shows what judges can lawfully do if they want to. ----- Original Message ----- From: "Graham, Wendell" <[email protected]>To: "Tom Edwards" <[email protected]>; "Ralph Artigliere" <[email protected]>; "Tracy Gunn" <[email protected]>; "Jodi B Jennings" <[email protected]>; "Amos, Joseph" <[email protected]>; <[email protected]>; <[email protected]>; <[email protected]>; <[email protected]>; "Boyer, Tyrie" <[email protected]>; <[email protected]>; <[email protected]>; <[email protected]>; <[email protected]>; <[email protected]>; "Farmer, Gary" <[email protected]>; <[email protected]>; "Fulford, Jeffrey" <[email protected]>; "Gertz, Sally" <[email protected]>; <[email protected]>; <[email protected]>; <[email protected]>; <[email protected]>; "LaRose, Edward" <[email protected]>; <[email protected]>; <[email protected]>; <[email protected]>; "Whitmore, Laura" <[email protected]>; "Richards, John" <[email protected]>; "Tracy Wasserman" <[email protected]>; <[email protected]>; "Mary Masferrer" <[email protected]>; <[email protected]>; "Wagner, Alan" <[email protected]>; "Campo, Alla n" <[email protected]>; "Bagley, Jerald" <[email protected]>; "Barnett, Karen" <[email protected]>; "Burlington, Philip" <[email protected]>; <[email protected]>; "DeMahy, Pedro (Pe te)" <[email protected]>; "Francis, Gregorio" <[email protected]>; "Hinkle, Donald" <[email protected]>; "Ingra m, J." <[email protected]>; "Kest, John" <[email protected]>; "Lytal, Lake" <[email protected]>; "McCloy, Dixon" <[email protected]>; "Rose nbloum, Louis" <[email protected]>; "Roth, Neal" <[email protected]>; "Russo, Elizabeth" <[email protected]>; "Sass, C ynthia" <[email protected]>; "Iacone, Diane" <[email protected]>; "Cour tney Stringfield" <[email protected]>Cc: <[email protected]>; <[email protected]>; <[email protected]>; <[email protected]>Sent: Wednesday, November 11, 2009 12:25 AMSubject: RE: instructions on jurors & electronic devices

APPENDIX H 305

I agree. A worthy tweek, but make only if it can be done without delaying submission to court.




________________________________

From: Ralph Artigliere [mailto:[email protected]] Sent: Tuesday, November 10, 2009 3:40 PMTo: Tracy Gunn; 'Jodi B Jennings'; 'Amos, Joseph';[email protected]; [email protected];[email protected]; [email protected]; 'Boyer, Tyrie';[email protected]; [email protected];[email protected]; [email protected]; [email protected]; Tom

APPENDIX H 306

Edwards; 'Farmer, Gary'; [email protected]; 'Fulford, Jeffrey';'Gertz, Sally'; [email protected]; [email protected];[email protected]; [email protected]; [email protected]; 'LaRose,Edward'; [email protected]; [email protected];[email protected]; 'Whitmore, Laura'; 'Richards, John'; 'TracyWasserman'; [email protected]; 'Mary Masferrer'; [email protected];'Wagner, Alan'; 'Campo, Allan'; 'Bagley, Jerald'; 'Barnett, Karen';'Burlington, Philip'; [email protected]; 'DeMahy, Pedro(Pete)'; 'Francis, Gregorio'; 'Hinkle, Donald'; 'Ingram, J.'; 'Kest,John '; 'Lytal, Lake'; 'McCloy, Dixon'; 'Rosenbloum, Louis'; 'Roth,Neal'; 'Russo, Elizabeth'; 'Sass, Cynthia'; 'Iacone, Diane'; CourtneyStringfieldCc: [email protected]; [email protected];[email protected]; [email protected]: Re: instructions on jurors & electronic devices


----- Original Message ----- From: Tracy Gunn <mailto:[email protected]> To: 'Jodi B Jennings' <mailto:[email protected]> ; 'Amos,Joseph' <mailto:[email protected]> ; [email protected] ; 'Artigliere, Ralph' <mailto:[email protected]> ; [email protected] ; [email protected] ; [email protected] ; 'Boyer, Tyrie' <mailto:[email protected]> ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; 'Edwards, Thomas' <mailto:[email protected]> ; 'Farmer, Gary'<mailto:[email protected]> ; [email protected] ; 'Fulford,Jeffrey' <mailto:[email protected]> ; 'Gertz, Sally'<mailto:[email protected]> ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; 'LaRose, Edward' <mailto:[email protected]>; [email protected] ; [email protected] ; [email protected] ; 'Whitmore, Laura'<mailto:[email protected]> ; 'Richards, John'<mailto:[email protected]> ; 'Tracy Wasserman'<mailto:[email protected]> ; [email protected] ; 'MaryMasferrer' <mailto:[email protected]> ; [email protected] ; 'Wagner,Alan' <mailto:[email protected]> ; 'Campo, Allan'<mailto:[email protected]> ; 'Bagley, Jerald'<mailto:[email protected]> ; 'Barnett, Karen'<mailto:[email protected]> ; 'Burlington, Philip'<mailto:[email protected]> ; [email protected] ; 'DeMahy, Pedro (Pete)' <mailto:[email protected]> ; 'Francis,Gregorio' <mailto:[email protected]> ; 'Hinkle, Donald'<mailto:[email protected]> ; 'Ingram, J.' <mailto:[email protected]>; 'Kest, John ' <mailto:[email protected]> ; 'Lytal, Lake'<mailto:[email protected]> ; 'McCloy, Dixon'

APPENDIX H 307

<mailto:[email protected]> ; 'Rosenbloum, Louis'<mailto:[email protected]> ; 'Roth, Neal'<mailto:[email protected]> ; 'Russo, Elizabeth'<mailto:[email protected]> ; 'Sass, Cynthia'<mailto:[email protected]> ; 'Iacone, Diane'<mailto:[email protected]> ; 'Stringfield, Courtney'<mailto:[email protected]> Cc: [email protected] ; [email protected] ; [email protected] ; [email protected] Sent: Tuesday, November 10, 2009 2:55 PMSubject: RE: instructions on jurors & electronic devices


Tracy Raffles Gunn




Tampa, FL 33602

phone (813) 254-3183

fax (813) 254-3258


From: Jodi B Jennings [mailto:[email protected]] Sent: Friday, November 06, 2009 2:51 PMTo: Amos, Joseph; [email protected]; Artigliere, Ralph; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Edwards, Thomas; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; TracyWasserman; [email protected]; Mary Masferrer; [email protected];Wagner, Alan; Gunn, Tracy; Campo, Allan; Bagley, Jerald; Barnett, Karen;Burlington, Philip; [email protected]; DeMahy, Pedro (Pete);Francis, Gregorio; Hinkle, Donald; Ingram, J.; Kest, John ; Lytal, Lake;

APPENDIX H 308

McCloy, Dixon; Rosenbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass,Cynthia; Iacone, Diane; Stringfield, CourtneyCc: [email protected]; [email protected]; [email protected]; [email protected]: Fw: instructions on jurors & electronic devices



11/06/2009 01:52 PM

To


cc


Subject



APPENDIX H 309

NOTE ON USE


--------------------------------------------------------------------------------


Please be advised that Florida has a broad public records law, and all correspondence to me via email may be subject to disclosure. Under Florida records law (SB80 effective 7-01-06), email addresses are public records. If you do not want your email address released in response to a public records request, do not send public records request to this entity. Instead, contact this office by phone or in writing.[attachment "Thomas S Edwards Jr .vcf" deleted by Jodi B Jennings/The Florida Bar]

APPENDIX H 310

"Jeff Fulford" <[email protected]>

11/16/2009 01:34 PM

To "'Sammy Cacciatore'" <[email protected]>, "'Caldwell, Jr. , Dick'" <[email protected]>, <[email protected]>, <[email protected]>,


bcc


Me too. ‘Great job’ to Tracy and the subcommittee. Jeff From: Sammy Cacciatore [mailto:[email protected]] Sent: Monday, November 16, 2009 1:20 PMTo: Caldwell, Jr. , Dick; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Vanessa McCurry; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]: [email protected]; [email protected]; [email protected]; [email protected]: RE: instructions on jurors & electronic devices I agree with Tracy's idea. I also agree with Dick's comments. Sammy

From: Caldwell, Jr. , Dick [mailto:[email protected]] Sent: Monday, November 16, 2009 10:01 AMTo: [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Sammy Cacciatore; Vanessa McCurry; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]: [email protected]; [email protected]; [email protected]; [email protected]: Re: instructions on jurors & electronic devices

I agree. I have no real problem with, for example, Judge Farmer's suggestions, but as Bob Austin and I were discussing the other day, the time constraints dictate that we move ahead with what we've got.

From: Tracy Gunn <[email protected]> To: 'Lucy Chernow Brown' <[email protected]>; 'Rebecca Mercier-Vargas' <[email protected]>; Caldwell, Jr. , Dick; 'Ralph Artigliere' <[email protected]>; 'Graham,

APPENDIX H 311

Wendell' <[email protected]>; 'Tom Edwards' <[email protected]>; 'Jodi BJennings' <[email protected]>; 'Amos, Joseph' <[email protected]>; [email protected] <[email protected]>; [email protected] <[email protected]>; [email protected] <[email protected]>; [email protected] <[email protected]>; 'Boyer, Tyrie' <[email protected]>; 'Mary Ellis' <[email protected]>; [email protected] <[email protected]>; [email protected] <[email protected]>; 'Farmer, Gary' <[email protected]>; [email protected] <[email protected]>; 'Fulford, Jeffrey' <[email protected]>; 'Gertz, Sally' <[email protected]>; [email protected] <[email protected]>; [email protected] <[email protected]>; [email protected] <[email protected]>; [email protected] <[email protected]>; 'LaRose, Edward' <[email protected]>; [email protected] <[email protected]>; [email protected] <[email protected]>; [email protected] <[email protected]>; 'Whitmore, Laura' <[email protected]>; 'Richards, John' <[email protected]>; 'Tracy Wasserman' <[email protected]>; [email protected] <[email protected]>; 'Mary Masferrer' <[email protected]>; 'Wagner, Alan' <[email protected]>; 'Campo, Alla n' <[email protected]>; 'Bagley, Jerald' <[email protected]>; 'Barnett, Karen' <[email protected]>; 'Burlington, Philip' <[email protected]>; [email protected] <[email protected]>; 'DeMahy, Pedro (Pe te)' <[email protected]>; 'Francis, Gregorio' <[email protected]>; 'Hinkle, Donald' <[email protected]>; 'Ingra m, J.' <[email protected]>; 'Kest, John' <[email protected]>; 'Lytal, Lake' <[email protected]>; 'McCloy, Dixon' <[email protected]>; 'Rose nbloum, Louis' <[email protected]>; 'Roth, Neal' <[email protected]>; 'Russo, Elizabeth' <[email protected]>; 'Sass, C ynthia' <[email protected]>; 'Iacone, Diane' <[email protected]>; 'Cour tney Stringfield' <[email protected]> Cc: [email protected] <[email protected]>; [email protected] <[email protected]>; [email protected] <[email protected]>; [email protected] <[email protected]> Sent: Mon Nov 16 09:35:19 2009Subject: RE: instructions on jurors & electronic devices As always, thanks to everyone for your thoughtful consideration. As you all know, we are in an unusual time crunch with this project given the Court’s deadline and request that we submit a joint instruction with the criminal committee. We all worked very hard to get these instructions through the drafting process prior to the October meeting so that we could finalize them at that meeting. We did finalize the instructions at the October meeting, with a few notes on use approved in principle and left to the subcommittee to prepare and circulate for final approval. We do not have another Committee meeting prior to the Court’s deadline. It appears that the attachment to Rebecca’s 11/6 email accurately reflects what the full Committee (along with the liaison from the criminal committee) agreed upon at the October meeting. With the exception of Jim Barton’s minor procedural additional to the note on the qualification instructions, I haven’t seen anyone raise any issues with the notes that the subcommittee prepared to effectuate the Committee’s decisions at the October meeting. Even absent time constraints, while a few members have proposed revisions to the approved language, it appears from these email discussions that the majority of the Committee still prefers to use the previously approved language. Importantly, the

APPENDIX H 312

version approved at the October meeting was approved by the criminal subcommittee and liaison, and allows us to present a joint proposal as ordered by the Court. Because of all these factors, I am going to suggest that we let the subcommittee move forward with preparing the submission to the court as approved at the October meeting. The alternate language discussed in all of these emails will be included in our submission and will be available for the Court to consider. If anyone disagrees with this procedure, please let me know. Best regards,Tracy Tracy Raffles GunnBoard Certified Appellate AttorneyGUNN APPELLATE PRACTICE P.A.400 North Ashley Drive Suite 2055Tampa, FL 33602phone (813) 254-3183fax (813) 254-3258email [email protected] From: Lucy Chernow Brown [mailto:[email protected]] Sent: Monday, November 16, 2009 8:19 AMTo: Rebecca Mercier-Vargas; Caldwell, Jr. , Dick; Ralph Artigliere; Graham, Wendell; Tom Edwards; Tracy Gunn; Jodi B Jennings; Amos, Joseph; [email protected]; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; Mary Ellis; [email protected]; [email protected]; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; Wagner, Alan; Campo, Alla n; Bagley, Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro (Pe te); Francis, Gregorio; Hinkle, Donald; Ingra m, J.; Kest, John; Lytal, Lake; McCloy, Dixon; Rose nbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, C ynthia; Iacone, Diane; Cour tney StringfieldCc: [email protected]; [email protected]; [email protected]; [email protected]: RE: instructions on jurors & electronic devices As I think about this again, I believe we should stick with the shorter, more general language we originally agreed on in the subcommittee. lcb From: Rebecca Mercier-Vargas [mailto:[email protected]] Sent: Thursday, November 12, 2009 4:26 PMTo: Caldwell, Jr. , Dick; Ralph Artigliere; Graham, Wendell; Tom Edwards; Tracy Gunn; Jodi B Jennings; Amos, Joseph; [email protected]; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; Lucy Chernow Brown; Mary Ellis; [email protected]; [email protected]; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected];

APPENDIX H 313

[email protected]; LaRose, Edward; [email protected]; [email protected];[email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; Wagner, Alan; Campo, Alla n; Bagley, Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro (Pe te); Francis, Gregorio; Hinkle, Donald; Ingra m, J.; Kest, John; Lytal, Lake; McCloy, Dixon; Rose nbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, C ynthia; Iacone, Diane; Cour tney StringfieldCc: [email protected]; [email protected]; [email protected]; [email protected]: RE: instructions on jurors & electronic devices I wanted to chime in with some additional background on whether to instruct jurors not to perform on the “people and places” related to the case or to give jurors a longer and more specific list of the types of people they should not be researching. When the subcommittees looked at this issue, we discussed using a longer version that specifically listed all the different types of people that jurors should not be looking up on the Internet. The list of people involved in the case grew pretty long (parties, witnesses, attorneys, judges). The more inclusive instruction seemed a bit unwieldy. In addition, some members of the criminal instructions subcommittee voiced strong reservations about the overall length of these instructions. For these reasons, my preference is to stick with the current shorter version. This is the current version from preliminary instruction 1.0:


From: Caldwell, Jr. , Dick [mailto:[email protected]] Sent: Wednesday, November 11, 2009 9:54 AMTo: Ralph Artigliere; Graham, Wendell; Tom Edwards; Tracy Gunn; Jodi B Jennings; Amos, Joseph; [email protected]; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; [email protected]; [email protected]; [email protected]; [email protected]; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected];

APPENDIX H 314

[email protected]; LaRose, Edward; [email protected]; [email protected];[email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; Rebecca Mercier-Vargas; Wagner, Alan; Campo, Alla n; Bagley, Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro (Pe te); Francis, Gregorio; Hinkle, Donald; Ingra m, J.; Kest, John; Lytal, Lake; McCloy, Dixon; Rose nbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, C ynthia; Iacone, Diane; Cour tney StringfieldCc: [email protected]; [email protected]; [email protected]; [email protected]: RE: instructions on jurors & electronic devices I agree with Ralph's comments. The article by Mike Hoenig which was circulated before the last meeting discusses the importance of voire dire in both educating jurors on what not to do, and in ferreting out those individuals who are likely to disregard the instructions. Good lawyers and judges can handle these situations as they arise.

From: Ralph Artigliere [mailto:[email protected]] Sent: Wednesday, November 11, 2009 8:42 AMTo: Graham, Wendell; Tom Edwards; Tracy Gunn; Jodi B Jennings; Amos, Joseph; [email protected]; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; [email protected]; [email protected]; [email protected]; [email protected]; Caldwell, Jr. , Dick; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; [email protected]; Wagner, Alan; Campo, Alla n; Bagley, Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro (Pe te); Francis, Gregorio; Hinkle, Donald; Ingra m, J.; Kest, John; Lytal, Lake; McCloy, Dixon; Rose nbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, C ynthia; Iacone, Diane; Cour tney StringfieldCc: [email protected]; [email protected]; [email protected]; [email protected]: Re: instructions on jurors & electronic devicesTom and Committee, At some point in the process, the joint subcommittee (crim and civil) considered the language "including the lawyers, parties, the judge," but even that added language would exclude witnesses. The idea is that the collective term already includes all persons involved in the case. How about Googling other jurors? It's a question of how far we go with any list and how long we want to make our instructions.[1] I personally think judges can use their own discretion to put this type of information out to jurors, and we should go with the standard instruction as is. This Friday Judge Barton and I are teaching judges "Communication with the Jury" in Inverness, and we will discuss (as I believe our note on use says), that preliminary instructions may be modified slightly to suit the case and the local or individual preferences of the judge. We will discuss language like this that may supplement the instruction, or the judge may stick strictly to the standard. Plus any lawyer who feels strongly about this can handle it in voir dire. But there is a down side in the judge or lawyer doing so (see next paragraph).

APPENDIX H 315

A text on juror behavior by Amy Posey that we considered in writing the Bar Journal article discussed the concept of the specifying prohibited behavior to jurors (such as "don't Google the lawyers") as causing a "reactance effect" in which jurors may be tempted to do exactly what was denied them by power of suggestion. [Posey, Amy and Wrightsman, Lawrence S., TRIAL CONSULTING, at p. 145 (Oxford Univ. Press 2005)]. I am not saying this prevents us from telling jurors what not to do, but I am saying that this addition may suggest to some a very specific and easy way to satisfy their curiosity about lawyers or judge.

I do not feel strongly enough to oppose Tom's suggestion. I am merely saying more specific instruction was considered at length and rejected on a quite reasonable basis, and I think we need to get on with this process. Ralph


APPENDIX H 316




________________________________

From: Ralph Artigliere [mailto:[email protected]] Sent: Tuesday, November 10, 2009 3:40 PMTo: Tracy Gunn; 'Jodi B Jennings'; 'Amos, Joseph';[email protected]; [email protected];[email protected]; [email protected]; 'Boyer, Tyrie';[email protected]; [email protected];[email protected]; [email protected]; [email protected]; TomEdwards; 'Farmer, Gary'; [email protected]; 'Fulford, Jeffrey';'Gertz, Sally'; [email protected]; [email protected];[email protected]; [email protected]; [email protected]; 'LaRose,

APPENDIX H 317

Edward'; [email protected]; [email protected];[email protected]; 'Whitmore, Laura'; 'Richards, John'; 'TracyWasserman'; [email protected]; 'Mary Masferrer'; [email protected];'Wagner, Alan'; 'Campo, Allan'; 'Bagley, Jerald'; 'Barnett, Karen';'Burlington, Philip'; [email protected]; 'DeMahy, Pedro(Pete)'; 'Francis, Gregorio'; 'Hinkle, Donald'; 'Ingram, J.'; 'Kest,John '; 'Lytal, Lake'; 'McCloy, Dixon'; 'Rosenbloum, Louis'; 'Roth,Neal'; 'Russo, Elizabeth'; 'Sass, Cynthia'; 'Iacone, Diane'; CourtneyStringfieldCc: [email protected]; [email protected];[email protected]; [email protected]: Re: instructions on jurors & electronic devices


----- Original Message ----- From: Tracy Gunn <mailto:[email protected]> To: 'Jodi B Jennings' <mailto:[email protected]> ; 'Amos,Joseph' <mailto:[email protected]> ; [email protected] ; 'Artigliere, Ralph' <mailto:[email protected]> ; [email protected] ; [email protected] ; [email protected] ; 'Boyer, Tyrie' <mailto:[email protected]> ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; 'Edwards, Thomas' <mailto:[email protected]> ; 'Farmer, Gary'<mailto:[email protected]> ; [email protected] ; 'Fulford,Jeffrey' <mailto:[email protected]> ; 'Gertz, Sally'<mailto:[email protected]> ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; 'LaRose, Edward' <mailto:[email protected]>; [email protected] ; [email protected] ; [email protected] ; 'Whitmore, Laura'<mailto:[email protected]> ; 'Richards, John'<mailto:[email protected]> ; 'Tracy Wasserman'<mailto:[email protected]> ; [email protected] ; 'MaryMasferrer' <mailto:[email protected]> ; [email protected] ; 'Wagner,Alan' <mailto:[email protected]> ; 'Campo, Allan'<mailto:[email protected]> ; 'Bagley, Jerald'<mailto:[email protected]> ; 'Barnett, Karen'<mailto:[email protected]> ; 'Burlington, Philip'<mailto:[email protected]> ; [email protected] ; 'DeMahy, Pedro (Pete)' <mailto:[email protected]> ; 'Francis,Gregorio' <mailto:[email protected]> ; 'Hinkle, Donald'<mailto:[email protected]> ; 'Ingram, J.' <mailto:[email protected]>; 'Kest, John ' <mailto:[email protected]> ; 'Lytal, Lake'<mailto:[email protected]> ; 'McCloy, Dixon'<mailto:[email protected]> ; 'Rosenbloum, Louis'<mailto:[email protected]> ; 'Roth, Neal'<mailto:[email protected]> ; 'Russo, Elizabeth'<mailto:[email protected]> ; 'Sass, Cynthia'

APPENDIX H 318

<mailto:[email protected]> ; 'Iacone, Diane'<mailto:[email protected]> ; 'Stringfield, Courtney'<mailto:[email protected]> Cc: [email protected] ; [email protected] ; [email protected] ; [email protected] Sent: Tuesday, November 10, 2009 2:55 PMSubject: RE: instructions on jurors & electronic devices


Tracy Raffles Gunn




Tampa, FL 33602

phone (813) 254-3183

fax (813) 254-3258


From: Jodi B Jennings [mailto:[email protected]] Sent: Friday, November 06, 2009 2:51 PMTo: Amos, Joseph; [email protected]; Artigliere, Ralph; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Edwards, Thomas; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; TracyWasserman; [email protected]; Mary Masferrer; [email protected];Wagner, Alan; Gunn, Tracy; Campo, Allan; Bagley, Jerald; Barnett, Karen;Burlington, Philip; [email protected]; DeMahy, Pedro (Pete);Francis, Gregorio; Hinkle, Donald; Ingram, J.; Kest, John ; Lytal, Lake;McCloy, Dixon; Rosenbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass,Cynthia; Iacone, Diane; Stringfield, CourtneyCc: [email protected]; [email protected]; [email protected]; [email protected]

APPENDIX H 319

Subject: Fw: instructions on jurors & electronic devices



11/06/2009 01:52 PM

To


cc


Subject



NOTE ON USE

APPENDIX H 320


--------------------------------------------------------------------------------



APPENDIX H 321

Jodi B Jennings/The Florida Bar

11/18/2009 11:55 AM

To "Amos, Joseph" <[email protected]>, [email protected], "Artigliere, Ralph" <[email protected]>, [email protected],

cc [email protected], [email protected], [email protected], [email protected]

bcc

Subject Fw: jurors' use of electronic devices: ABOTA model instruction (drafted by Lincoln Connolly)

Please review the email below from Rebecca.

----- Forwarded by Jodi B Jennings/The Florida Bar on 11/18/2009 11:03 AM -----


11/18/2009 10:18 AM


cc <[email protected]>, <[email protected]>

Subject jurors' use of electronic devices: ABOTA model instruction (drafted by Lincoln Connolly)

For your information, I’ve attached for your review a motion requesting special instructions on the issue of jurors using electronic devices and communicating with others. Lincoln Connolly drafted this motion and special instruction. The special instruction is found on exhibit C to the motion (page 12). I am forwarding this instruction because I thought it would be of interest to the committee. However, I do not think that the committee needs to reopen the discussion or consider new issues. This is because the overall approach in the Connolly instruction is similar to what the committee has already voted to submit to the Court. We tracked down this instruction because Tracy read the following excerpt from ABOTA minutes: ***Civil Justice Committee Chair Wayne Hogan reported that they will post on the ABOTA website model jury instructions and guidelines for dealing with jury independent internet research, twittering, and unauthorized communications during trial proceedings.***I followed up with Wayne Hogan and obtained a copy of the attached instructions, which are referred to in the minutes. Hogan advised that his committee felt these instructions were comprehensive and could be used as a model for others proposing special instructions on this issue. Similar to the civil committee’s current proposal, the Connolly instruction modifies the existing preliminary instruction 1.1 given after jurors are sworn. Also similar to the committee’s proposal, the Connolly instruction focuses on telling jurors two things: (1) not to perform outside research on the internet; and (2) not to communicate with others about the case using electronic devices. Like our proposed amendments, the Connolly instruction takes a

APPENDIX H 322

comprehensive approach and lists the many different forms of prohibited electronic research and communication (newspapers, stories, blogs, websites, social networking websites, twittering, texting, etc.). One big difference with the Connolly instruction is that it spells out the negative consequences if jurors disobey this instruction: a mistrial at substantial expense to the parties and court, the juror’s dismissal from the case, contempt sanctions and possible jail time for the offending juror. At our October meeting, the civil committee discussed this approach at length. The committee decided not to emphasize the costs of a mistrial and the negative consequences for jurors who disobey the instruction.


--------------------------------------------------------------------------------


[attachment "Koehler Motion for Special Instruction re Internet etc.pdf" deleted by Jodi B Jennings/The Florida Bar]

APPENDIX H 323

APPENDIX H 324

APPENDIX H 325

APPENDIX H 326

APPENDIX H 327

APPENDIX H 328

APPENDIX H 329

APPENDIX H 330

APPENDIX H 331

APPENDIX H 332

APPENDIX H 333

APPENDIX H 334

APPENDIX H 335

"Karen Barnett" <[email protected]>

11/20/2009 04:43 PM


cc

bcc

Subject RE: jurors' use of electronic devices: ABOTA model instruction (drafted by Lincoln Connolly)

I quite agree with the ABOTA position. As I stated at the meeting, I think the negative consequences should be spelled out of them. I plan to discuss that with them in voir dire in detail, even though the proposed instruction does not. I would propose adding this language. Karen A. Barnett, EsquireBarnett & Gacio, P.A.442 W. Kennedy Blvd.Suite 200Tampa, Florida 33606813/224-9510, ext. 19813/224-9808 [email protected]

NOTICE: This e-mail is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521 and is legally privileged. This e-mail message and any files transmitted with it are also subject to the attorney-client privilege and attorney work-product doctrine, and contain confidential information intended only for the person(s) to whom this e-mail message is addressed. If you have received this e-mail message in error, please notify the sender immediately and destroy the original message without making a copy. Thank you.

From: Jodi B Jennings [mailto:[email protected]] Sent: Wednesday, November 18, 2009 11:55 AMTo: Amos, Joseph; [email protected]; Artigliere, Ralph; [email protected]; [email protected]; [email protected]; Boyer, Tyrie; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Edwards, Thomas; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; [email protected]; Wagner, Alan; Gunn, Tracy; Campo, Allan; Bagley, Jerald; Karen Barnett; Burlington, Philip; [email protected]; DeMahy, Pedro (Pete); Francis, Gregorio; Hinkle, Donald; Ingram, J.; Kest, John ; Lytal, Lake; McCloy, Dixon; Rosenbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, Cynthia; Iacone, Diane; Stringfield, CourtneyCc: [email protected]; [email protected]; [email protected]; [email protected]: Fw: jurors' use of electronic devices: ABOTA model instruction (drafted by Lincoln Connolly)

Please review the email below from Rebecca.

----- Forwarded by Jodi B Jennings/The Florida Bar on 11/18/2009 11:03 AM ----- "Rebecca Mercier -Vargas" <[email protected]>

11/18/2009 10:18 AM


Subject

jurors' use of electronic devices: ABOTA model instruction (drafted by Lincoln Connolly)

APPENDIX H 336

For your information, I’ve attached for your review a motion requesting special instructions on the issue of jurors using electronic devices and communicating with others. Lincoln Connolly drafted this motion and special instruction. The special instruction is found on exhibit C to the motion (page 12). I am forwarding this instruction because I thought it would be of interest to the committee. However, I do not think that the committee needs to reopen the discussion or consider new issues. This is because the overall approach in the Connolly instruction is similar to what the committee has already voted to submit to the Court. We tracked down this instruction because Tracy read the following excerpt from ABOTA minutes: ***Civil Justice Committee Chair Wayne Hogan reported that they will post on the ABOTA website model jury instructions and guidelines for dealing with jury independent internet research, twittering, and unauthorized communications during trial proceedings. *** I followed up with Wayne Hogan and obtained a copy of the attached instructions, which are referred to in the minutes. Hogan advised that his committee felt these instructions were comprehensive and could be used as a model for others proposing special instructions on this issue. Similar to the civil committee’s current proposal, the Connolly instruction modifies the existing preliminary instruction 1.1 given after jurors are sworn. Also similar to the committee’s proposal, the Connolly instruction focuses on telling jurors two things: (1) not to perform outside research on the internet; and (2) not to communicate with others about the case using electronic devices. Like our proposed amendments, the Connolly instruction takes a comprehensive approach and lists the many different forms of prohibited electronic research and communication (newspapers, stories, blogs, websites, social networking websites, twittering, texting, etc.). One big difference with the Connolly instruction is that it spells out the negative consequences if jurors disobey this instruction: a mistrial at substantial expense to the parties and court, the juror’s dismissal from the case, contempt sanctions and possible jail time for the offending juror. At our October meeting, the civil committee discussed this approach at length. The committee decided not to emphasize the costs of a mistrial and the negative consequences for jurors who disobey the instruction. Rebecca Mercier Vargas, Esq. Board Certified Appellate Lawyer

APPENDIX H 337

Kreusler-Walsh, Compiani, & Vargas P.A. 501 South Flagler Drive, Suite 503 West Palm Beach, Florida 33401 Telephone: (561) 659-5455 Facsimile: (561) 820-8762

--------------------------------------------------------------------------------



APPENDIX H 338


11/25/2009 03:52 PM

To "Jodi B Jennings" <[email protected]>, <[email protected]>, <[email protected]>

cc

bcc

Subject FW: instructions on jurors & electronic devices

I consider this the civil committee’s final version of the electronic device instructions. The only change was in response to Judge Barton’s comments. Have a great Thanksgiving. Rebecca Mercier Vargas, Esq.Board Certified Appellate LawyerKreusler-Walsh, Compiani & Vargas P.A.501 South Flagler Drive, Suite 503West Palm Beach, Florida 33401Telephone: (561) 659-5455Facsimile: (561) 820-8762

From: Rebecca Mercier-Vargas Sent: Monday, November 23, 2009 3:23 PMTo: 'Barton, James 'Cc: Jodi B Jennings; Tracy Raffles Gunn ([email protected]); [email protected]; Ralph Artigliere ([email protected])Subject: RE: instructions on jurors & electronic devices Jim: Attached is a revised draft of the instructions, incorporating your comment. I read your comment as suggesting that we add this sentence at the beginning of the note on use to the first instruction, given in the qualifications stage. Please let me know if I misunderstood your comment. Thanks very much Rebecca Mercier Vargas, Esq.Board Certified Appellate LawyerKreusler-Walsh, Compiani & Vargas P.A.501 South Flagler Drive, Suite 503West Palm Beach, Florida 33401Telephone: (561) 659-5455Facsimile: (561) 820-8762

From: Barton, James [mailto:[email protected]] Sent: Wednesday, November 11, 2009 10:56 AMTo: Jodi B Jennings; Amos, Joseph; [email protected]; Artigliere, Ralph; [email protected]; [email protected]; Boyer, Tyrie; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Edwards, Thomas; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; Charles Kahn, Jr; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; Rebecca Mercier-Vargas; Wagner, Alan; Gunn, Tracy; Campo, Allan; Bagley, Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro

APPENDIX H 339

(Pete); Francis, Gregorio; Hinkle, Donald; Ingram, J.; Kest, John ; Lytal, Lake; McCloy, Dixon; Rosenbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, Cynthia; Iacone, Diane; Stringfield, CourtneyCc: [email protected]; [email protected]; [email protected]; [email protected]: RE: instructions on jurors & electronic devices My only suggestion would be to add a sentence to the Note On Use to the first instruction intended for the prospective jurors: This instruction should be given in addition to and at the conclusion of the instructions normally given to the prospective jurors. From: Jodi B Jennings [mailto:[email protected]] Sent: Friday, November 06, 2009 2:51 PMTo: Amos, Joseph; [email protected]; Artigliere, Ralph; [email protected]; [email protected]; Barton, James ; Boyer, Tyrie; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Edwards, Thomas; Farmer, Gary; [email protected]; Fulford, Jeffrey; Gertz, Sally; [email protected]; [email protected]; Charles Kahn, Jr; [email protected]; [email protected]; LaRose, Edward; [email protected]; [email protected]; [email protected]; Whitmore, Laura; Richards, John; Tracy Wasserman; [email protected]; Mary Masferrer; [email protected]; Wagner, Alan; Gunn, Tracy; Campo, Allan; Bagley, Jerald; Barnett, Karen; Burlington, Philip; [email protected]; DeMahy, Pedro (Pete); Francis, Gregorio; Hinkle, Donald; Ingram, J.; Kest, John ; Lytal, Lake; McCloy, Dixon; Rosenbloum, Louis; Roth, Neal; Russo, Elizabeth; Sass, Cynthia; Iacone, Diane; Stringfield, CourtneyCc: [email protected]; [email protected]; [email protected]; [email protected]: Fw: instructions on jurors & electronic devices


11/06/2009 01:52 PM



Attached for your review are the revised instructions on jurors using electronic devices, incorporating the revisions that we discussed at the October meeting. There is one change to the notes on use that we would like to bring to your attention. At the meeting, the committee decided to add a note on use in the middle of preliminary instruction 1.0 stating: This instruction may need to be modified to include other means of communication as technology develops. The subcommittee voted to move this note to the end of instruction 1.0, rather than to keep it in the middle. This placement makes more sense because there is already a note on use at the end

APPENDIX H 340

of instruction 1.0. The subcommittee also recommends adding this type of note to each of the four instructions we are proposing. The subcommittee revised the language of this note on use slightly and added the following note to the end of each of the four instructions:

NOTE ON USE


--------------------------------------------------------------------------------


copies of the original message and attachments. [attachment "electronic device instructions following civil 10-09 meeting (00013202).DOC" deleted by Jodi B Jennings/The Florida Bar]

APPENDIX H 341









NOTE ON USE

This instruction should be given in addition to and at the conclusion of the instructions normally given to the prospective jurors. The portion of this instruction dealing with communication with others

APPENDIX H 342

means of communication or research as technology develops.

APPENDIX H 343


















APPENDIX H 344













devices or computers to communicate about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages to or from anyone about this case or your jury service.

APPENDIX H 345




Voir Dire:








APPENDIX H 346





NOTE ON USE

1. The publication of this recommended instruction is not intended to intrude upon the trial judge’s own style and manner of delivery. It may be useful in cataloging the subjects to be covered in an introductory instruction.


with others and outside research may need to be modified to include other specified means of communication or research as technology develops.

APPENDIX H 347


















APPENDIX H 348
















APPENDIX H 349


What are the rules?






APPENDIX H 350







NOTE ON USE 1. The publication of this recommended instruction is not intended

to intrude upon the trial judge's own style and manner of delivery. It may be useful in cataloging the subjects to be covered in an introductory instruction.

APPENDIX H 351

2. The portion of this instruction dealing with communication with others and outside research may need to be modified to include other specified means of communication or research as technology develops.

APPENDIX H 352




During deliberations, jurors must communicate about the case only with one another and only when all jurors are present in the jury room. You will have in the jury room all of the evidence that was received during the trial. In reaching your decision, do not do any research on your own or as a group. Do not use dictionaries, the Internet, or any other reference materials. Do not investigate the case or conduct any experiments. Do not contact anyone to assist you, such as a family accountant, doctor, or lawyer. Do not visit or view the scene of any event involved in this case. or look at maps or pictures on the Internet. If you happen to pass by the scene, do not stop or investigate. All jurors must see or hear the same evidence at the same time. Do not read, listen to, or watch any news accounts of this trial.




APPENDIX H 353



notes and immediately destroy them. No one will ever read your notes. In reaching your verdict, do not let bias, sympathy, prejudice, public opinion, or any other sentiment for or against any party to influence your decision. Your verdict must be based on the evidence that has been received and the law on which I have instructed you.




When you go to the jury room, the first thing you should do is choose a presiding juror to act as foreperson during your deliberations. The foreperson should see to it that your discussions are orderly and that everyone has a fair chance to be heard.


APPENDIX H 354














APPENDIX H 355

other specified means of communication or research as technology develops.

2.3. Rule 2.430(l), Florida Rules of Judicial Administration, provides


3.4 .Quotient verdict. The committee recommends that no instruction generally be given to admonish the jury against returning a “quotient verdict.”

4.5. When it is impracticable to take all of the evidence into the jury


APPENDIX H 356










APPENDIX H 357




opinion, or any other sentiment for or against any party to influence your decision. Your verdict must be based on the evidence that has been received and the law on which I have instructed you.







is select one of your number to act as the foreperson to preside over your deliberations and sign your verdict[s]. Your verdict[s] must be unanimous, that is, your verdict[s] must be agreed to by each of you. choose a presiding juror to act as a foreperson during your deliberations. The foreperson should see to it that your discussions are orderly and that everyone has a fair chance to be heard.

APPENDIX H 358












APPENDIX H 359

- 19 -

NOTES ON USE










APPENDIX H 360