In the aftermath of the jury verdict largely against Samsung in its California patent battle with Apple, some questions have arisen in the legal community about possible misconduct by the jury during its deliberations. The concern over how the jury reached its decision followed several media interviews by the jury foreman in which he made statements indicating that outside information was a component of the jury’s decision making process.
It is important to state first that the word “misconduct” is used in this article strictly in a non-pejorative manner. “Misconduct” for the purposes of this article equates only with “improper actions,” and is not an attack on the credibility or character of the jury members.
In an interview with Bloomberg Tuesday, jury foreman Velvin Hogan made several statements that have caught the interest of patent attorneys, as they indicate that Mr. Hogan and other jurors used their own understanding of intellectual property to make decisions outside of the bounds of evidence and law set by the court.
Mr. Hogan, who holds a 2002 patent on video compression, said in his interview: “I found it all very interesting because of my tech background…I wasn’t confused, but there was [sic] some of the jurors that were confused, so what we did in the jury room before we did anything…I told them ‘let’s lay out on the table any concerns or open questions you may have that’s left over, and let’s just get that out of the way first.’”
“Some of the jurors weren’t sure of the patent prosecution process. Some weren’t sure of how prior art could either render a patent acceptable or whether it could invalidate it,” he added.
The primary question of concern is who answered the questions raised by confused jury members and what source they used to answer those questions. Speaking with The Verge Thursday, Mr. Hogan said that several jurors asked him questions about “the more nuanced issues in play.” Did Mr. Hogan answer those questions exclusively with the information provided by the judge’s instructions, or did he use his own knowledge and experience to instruct the confused jurors on the meaning of certain terms and theories?
The jury instructions (PDF) given by the court prior to the jury’s deliberations state:
“It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. You must follow the law as I give it to you whether you agree with it or not. And you must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. That means that you must decide the case solely on the evidence before you. You will recall that you took an oath to do so,” Final Jury Instruction No. 1.
“The trial is now over. The evidence you are to consider in deciding what the facts are consists of: 1. the sworn testimony of any witness; 2. the exhibits which are received into evidence; and 3. any facts to which the lawyers have agreed,” Final Jury Instruction No. 5
Support for the idea that the jury instructions limit jurors to discussing facts, theories, and definitions that derive exclusively from those presented at trial and by the court comes from In re Malone, 12 Cal. 4th 935 (1996). Identifying that general personal experiences “necessarily inform” a juror’s view of the evidence, a juror “should not discuss an opinion explicitly based on specialized information obtained from outside sources. Such injection of external information in the form of a juror’s own claim to expertise or specialized knowledge of a matter at issue is misconduct,” Id. at 936.
Apple v. Samsung Jury Foreman Velvin Hogan
If a juror uses or discusses with other jurors personal experiences that relate to the legal issue being decided but are not those based on evidence or definitions provided by the court, it can serve as grounds to overturn the jury’s verdict. There are many court decisions that uphold this principle, but we will focus on the ones that relate to California and the Ninth Circuit, where the trial took place.
“A jury should reach a verdict that is based solely upon the evidence admitted at trial.” United States v. Bagnariol, 665 F.2d 877, 844 (9th Cir. 1981).
Pure “personal experiences,” taken as a whole, do not constitute evidence. But statements or interpretations, based on personal experiences, become evidence if they are not identical to the ones directed by the court, and are unjust because they deny the parties a chance to object. “A juror’s communication of extraneous information implicates the Confrontation Clause.” Sassounian v. Roe, 230 F.3d 1097, 1108 (9th Cir. 2000).
Mr. Hogan stated in his interviews that he helped other jurors understand the legal topics at issue and how they applied: “Some of the jurors weren’t sure of the patent prosecution process,” he told Bloomberg. If Mr. Hogan, using his personal experience with patents, provided a definition or clarification of any part of the process that was not brought up in trial or described in the judge’s instructions, that becomes testimony, a form of evidence.
Other California cases that address how personal experiences can become evidence in the jury room include the following:
In Whitlock v. Foster Wheeler, LLC, 72 Cal.Rptr.3d 369 (Cal. App. 2008), which dealt with asbestos exposure onboard a U.S. Navy vessel, the verdict was overturned after the court learned that a juror, a former Naval officer, informed the other members of the jury about his experiences in the way ship maintenance is performed.
In McDonald v. Southern Pacific Transportation Co., 83 Cal.Rptr.2d 734 (Cal.App. 1999), which involved an accident at a railway crossing, the verdict was overturned after it became known that a juror, who had worked in transportation, discussed with the jury technical and practical aspects about placing crossing gates and sensors at the track.
In Young v. Brunicardi, 187 Cal.App. 3d 1344 (1986), which dealt with an automobile accident, the jury verdict was overturned after a juror, a former police officer, instructed members of the jury on the applicability of the law, telling them that a defendant could not be negligent if there was no violation of the Vehicle Code. “Communication to fellow jurors of information on an issue under litigation except in open court and in the manner provided by law constitutes misconduct,” Id. at 1349.
The Young court also made mention of the fact that the former police officer’s statements “carried substantial authority” with the other jurors because they were aware of his past employment. Id. at 351. Mr. Hogan’s “tech background,” and experience with the patent application process may have similarly caused some members of the jury to accept his interpretations on the applicability of the patent claims.
Other jurisdictions agree:
Lumbermens Mutual Casualty Co. v. Cummings, 618 S.W.2d 883 (Tex. Civ. App. 1981): A worker’s compensation judgment was reversed and the causes remanded for a new trial because jurors discussed their own personal experiences with back problems.
Elston v. Sherman Coca-Cola & Dr. Pepper Co., 596 S.W.2d 215 (Tex. Civ. App. 1980): A negligence judgment was reversed and the case was remanded for a new trial because jurors discussed their own work experiences and these discussions had an effect on the award for loss of future earnings.
Russ v. State, 95 So.2d 594, 600 (Fla. 1957): “Where a juror on deliberation [relies on or] relates to the other jurors material facts claimed to be within his personal knowledge, but which are not adduced in evidence … it is misconduct which may vitiate the verdict.”
The reasons for these limitations on what information jurors can use or discuss during deliberations are based on the inherent complexity of legal and technical issues. Patent law in particular is a highly complex and ever evolving topic that dedicated patent attorneys spend their entire careers attempting to master. While jurors may have experience in the patent process, drawing on their own knowledge to supplement or supplant that provided by the court is a recipe for disaster.
“Most inventors don’t actually know the law as well as they think they do,” Jonathan D’Silva, an intellectual property attorney with the firm MacDonald, Illig, Jones & Britton LLP, told The Mac Observer.
“Everyone comes in to a patent filing or a patent trial with preconceptions of intellectual property law and some think they know more than they really do. That’s because patent law is not a pool, it’s an ocean. Even the slightest variation of a term can completely change everything. So for a jury foreman to apply his experience, and to lead other jurors in their deliberations based on his experience, I can’t even begin to imagine what variations that might introduce. Depending on what he told them, he could have completely misled the jurors in making their decision,” Mr. D’Silva added.
Another attorney, who asked not to be identified due to potential conflicts of interest arising from matters not directly related to the patent litigation, told us: “The most troubling matter is the suggestion that the foreman may have introduced evidence in the form of his own interpretation of how to explain the claims and law to the other jurors. Regardless of which party his interpretation may have prejudiced, it is essential to the sanctity of our legal system that both parties know exactly how the foreman described the law and claims, as these are items that should not be up for debate during deliberations.”
Both Samsung and Apple are preparing for the forthcoming injunction and damages hearings in September and December. The Korean company is also preparing a series of appeals on various aspects of the case, including a request to overturn the jury’s verdict.