Can jurors decide a case based not on evidence presented at trial, but instead on a jurors’ personal experience?

Footnote 7 from the Mississippi Supreme Court’s non-decision in Sears v. Learmonth created significant teeth gnashing on  this question in the legal community—at least among lawyers who read the footnotes.

Footnote 7 was the majority’s response to Justice Dickinson’s dissent that argued that the jury could not have awarded more that $1,781,094 in economic damages unless they did not follow their instructions. Footnote 7 states:

“Is the dissent suggesting, contrary to the instructions provided, that the jury was not ‘permitted to draw such reasonable inferences from the testimony and exhibits’ as they felt were ‘justified in the light of common experience’ and/or that the jury was prohibited from making ‘deductions and reach[ing] conclusions which reason and common sense’ led them ‘to draw from the facts..established by the testimony and evidence[?]’

For example, expert testimony regarding the ‘household services figures’ was based on the assumption of paying a person minimum wage, which was an assumption that the jury was free to reject and determine that the services could not be procured for minimum wage. The ‘common experience’ of the jurors may have been contrary to that assumption…”

To which I reply if I’m in the dissent that yes, that’s exactly what I’m saying.

Keep in mind that in making this statement, the Court was stating that the jury may have awarded more than minimum wage for household services based on jurors’ personal experiences. How do you think this argument would work out for a plaintiff trying to keep a big economic damages verdict?

Compare footnote 7 to the federal court’s proposed model jury instruction on the use of electronic technology to conduct research on or communicate about a case. This instruction is newsworthy because it instructs jurors to tell on other jurors who violate the ban on using electronic devices to research the case. But the language I am focusing on here is:

“You may not use these electronic means to investigate or communicate about the case because it is important that you decide this case based solely on the evidence presented in this courtroom. Information on the Internet or available through social media might be wrong, incomplete, or inaccurate. You are only permitted to discuss the case with your fellow jurors during deliberations because they have seen and heard the same evidence you have. In our judicial system, it is important that you are not influenced by anything or anyone outside of this courtroom. Otherwise, your decision may be based on information known only by you and not your fellow jurors or the parties in the case. This would unfairly and adversely impact the judicial process.”

I’m having a hard time reconciling footnote 7 to the notion epitomized in this instruction that the jury should decide the case based only on the evidence presented in the courtroom and the court’s instructions. I’m also having a hard time getting my head around the fact that 8 of 9 members of the Mississippi Supreme Court joined in footnote 7. Unreal.

I get the perception that the Court was making a dodge in Sears. But what do we do with footnote 7? Ignore it? Cite it in future cases? What?

Finally, I like the model rule instruction to jurors that they report other jurors who violate the instruction. That should apply equally to any of the Court’s instructions. This includes the instruction to only deliberate based on evidence elicited in the courtroom, which the jury should not do. Regardless of what footnote 7 says.