cdTOCtest

verdict already rendered is whether it has dispersed and
has had an opportunity to mingle with others.
Subsequent proceedings are allowed provided jury
remained in jury box or “otherwise within continuous
control of court.” State v. Fungone, 134 N.J.Super. 531,
535 (App. Div. 1975), certif. denied, 70 N.J. 526 (1976).

VIII. EXTRANEOUS INFLUENCES ON JU-

RORS; EX PARTE CONTACTS

A. Generally

The test is whether misconduct or irregular influence
had the capacity to influence the jury to reach a verdict
in a manner inconsistent with the legal proofs and court’s
charge. Panko v. Flintkote, 7 N.J. 55, 61 (1951); State v.
Bisaccia, 319 N.J.Super. at 12.

1. If yes, new trial granted without further inquiry
   into actual effect because test only requires capacity to
   influence jury. Panko v. Flintkote, 7 N.J. at 61; State v.
   Scherzer, 301 N.J.Super. at 486.


2. Evidence of actual effect of extraneous matter
   upon juror’s minds should be excluded. However,
   evidence as to existence of a condition or happening of an
   event with capacity for adverse prejudice should be
   received. State v. Kociolek, 20 N.J. 92 (1955); see In re
   Koslov, 19 N.J. at 239 (trial judge must seek out and
   expose outside factors impinging on jury’s freedom of
   action, impartiality and essential integrity); State v.
   Bisaccia, 319 N.J.Super. at 14-15.

B. Examples

1. If the record shows affirmatively that a
   communication had no tendency to influence the
   verdict, the judge’s impropriety in communicating with
   the jury out of defendant’s presence does not require
   reversal. State v. Auld, 2 N.J. 426 (1949); State v. Brown,
   275 N.J.Super. 329, 332-33 (App. Div.), certif. denied,
   138 N.J. 269 (1994). Even an unrecorded ex parte
   communication between the trial judge and a juror can
   be harmless error. Rushen v. Spain, 464 U.S. 114 (1983);
   see State v. Brown, 275 N.J.Super. at 333; State v. Vergilio,
   261 N.J.Super. 648, 653-54 (App. Div.), certif. denied,
   133 N.J. 443 (1993).


2. Conviction reversed where jurors consulted
   dictionary for definition to aid in deliberations.
   Palestroni v. Jacobs, 10 N.J.Super. 266, 269-76 (App.
   Div. 1950).


3. Courts will not tolerate conduct by court officers
   which might influence jurors in reaching verdict. State v.
   Walker, 33 N.J. 580 (1960) (sheriff referred to defendant
   as “murderer” outside court, within possible earshot of
   jurors, and arranged bus ride for jury without knowledge
   of court; court should have conducted inquiry), cert.
   denied, 371 U.S. 850 (1962).


4. Juror approached defense counsel in corridor and
   said “I’m surprised at you.” Counsel unsuccessfully
   requested that trial court interrogate juror to determine
   meaning of remark. Judge should have made inquiry, and
   prejudice presumed unless proven otherwise. State v.
   Marchitto, 132 N.J.Super. 511, 514-17 (App. Div.),
   certif. denied, 68 N.J. 163 (1975). However, juror’s
   perceived attempt to communicate with corrections
   officers during trial, while improper, did not warrant
   either removal or a mistrial. State v. Mance, 300
   N.J.Super. at 56-57.


5. Use of special interrogatories in criminal trial is
   generally discouraged due to their potential for
   destroying ability of jury to deliberate upon issue of guilt
   or innocence free of extraneous influences. State v. Simon,
   79 N.J. 191, 199-00 (1979). But properly prepared
   special verdict sheets, submitted with appropriate
   instructions, can alleviate most risks inherent in using
   them. Thus, trial courts in their discretion may submit
   special verdicts to juries where a compelling need to do so
   exists. R. 3:19-1(b); State v. Diaz, 144 N.J. 628, 643-45
   (1996) (where defendant charged with a substantive
   offense and possessing a weapon for unlawful purposes
   against another person or property); State v. Petties, 139
   N.J. 310, 320-21 (1995).


6. Alcohol and/or narcotics abuse by a juror during
   trial is not an “outside influence” pursuant to the federal
   rules of evidence about which jurors may testify to
   impeach their verdict. Tanner v. United States, 483 U.S.
   107 (1987).


7. Trial judges should not enter jury room during
   deliberations to seek clarification of a jury question ex
   parte. State v. Brown, 275 N.J.Super. at 331-34.

IX. PUBLICITY

A. Pretrial

All pretrial proceedings in criminal prosecutions

shall be open to the public and press. State v. Crandall,

120 N.J. 649, 659 (1990); State v. Williams, 93 N.J. at

63 ; see also Globe Newspaper Co. v. Superior Court, 457