Indiana Jury Rules

MOTION TO SEQUESTER JURORS PRIOR
TO AND DURING THE TRIAL OF THIS CASE

COMES NOW, by counsel, and moves this Court pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article 3, §§ 5, 12, 13, 14, 15, 16, 18, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31 & 32 of the Mississippi Constitution to sequester the jurors prior to and during this case. In support of his/her motion, states as follows:

1. In the course of many capital trials, those called for jury duty discuss the case amongst themselves prior to and during voir dire. This is incompatible with the defendant's right to a fair trial. Similarly, in the course of various capital trials, jurors have been exposed to extraneous influences which are also incompatible with a fair trial. The discovery of this taint of the jury process is generally a matter of pure chance. The only way to effectively protect the rights of the accused is to make sure that such occurrences do not happen.

2. The general rule concerning sequestration of jurors is reinforced by the fact that in the prior trial of this case, various improper contacts were made with jurors. For example, members of the jury are sometimes told that they will be permitted to call their families in the evening during the trial. On Sunday, jurors are sometimes apparently allowed to go to church, without notice to counsel, and without any assurance that the content of the service or the sermon by the minister would be appropriate under the circumstances. Cf. Stockton v. Commonwealth of Virginia, 852 F.2d 740, 743-44 (4th Cir. 1988), cert. denied, 109 S. Ct. 1354 (1989) (jurors in capital case should not have been exposed to opinions of person at restaurant at lunch). Additionally, on the weekend, jurors are sometimes allowed to visit with their families for a "picnic" at the motel where they are purportedly "sequestered."

3. It is error for the prosecution or the trial court to make contact with the jurors without the presence of the defense, even without evil intent. As the Mississippi Supreme Court has held, "[i]t is a matter of common knowledge that jurors ... are very susceptible to the influences of the judge .... [They] watch closely his conduct, and give attention to his language, that they may, if possible, ascertain his leaning to one side or the other, which, if known, often largely influences their verdict." Martin v. State, 415 So.2d 706, 708 (Miss. 1982) (quoting Green v. State, 97 Miss. 824, 838, 53 So. 415, 416 (Miss. 1910)). The Mississippi Supreme Court has also previously stated that: a jury's verdict must be based upon the evidence and not affected by extraneous influences. [This Court has] also repeatedly recognized the gravity and immeasurable solemnity of a jury's deliberations during the sentencing phase of a capital murder trial. The importance of this deliberation may at times cause inconvenience and hardship; however, to allow distractions and outside influences to infect the jury's thoughts at this critical juncture of the proceedings is to devalue human life. Fuselier v. State, 468 So.2d 45, 57 (Miss. 1985) (citations omitted); see also Williamson v. State, 512 So.2d 868, 882 (Miss. 1987).

4. Any extraneous contact with jurors will automatically result in reversal of any verdict. In Remmer v. United States, 347 U.S. 227, 74 S. Ct. 450, 98 L. Ed. 2d 654 (1954), the Supreme Court held that "[i]n a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial. . . ." Id. at 229 (emphasis supplied). There will be no inquiry into the effect of any extraneous influence. "All the authorities hold that, if [the jury] were exposed to improper influences, which might have produced the verdict, the presumption of law is against its purity; and testimony will not be heard to rebut this presump- tion. It is a conclusive presumption." Collins v. State, 54 So. 665, 665-66 (Miss. 1911); accord Rucker v. State, 248 Miss. 65, 158 So.2d 39, 42 (1963); Green v. State, 53 So. 415, 416 (Miss. 1910).

5. It may be necessary for the bailiffs to make passing contact with jurors to impart information regarding their sequestration. Such contact should only be made with great care, after this Court has carefully instructed the bailiffs on the limits of their contact, in the presence of the defense.

WHEREFORE, moves that the jurors be sequestered throughout the course of the trial and sentencing proceedings. Furthermore, unless the State stipulates to the truth of the allegations in this motion, or this Court grants the motion in toto, moves that an evidentiary hearing be held.

Respectfully submitted,

CERTIFICATE OF SERVICE

I certify that I have this date delivered, by hand, a true and correct copy of the above and foregoing Motion to

This the day of