Trials do not always live up to the dramatic portrayals seen on television, and not all jurors are enthusiastic about their courtroom duties. On the other hand, serving as a juror could offer the unique opportunity to unwind and take a break from the usual work routine. No matter the excuse, jurors are constantly nodding off and falling asleep during trial proceedings. In such instances, it raises the question of what judges and counsel are expected to do to address inattentive jurors.   

Criminal defendants are entitled to a fair and impartial jury under the Sixth and 14th Amendments to the United States Constitution. [1] Therefore, if it is determined that a juror engages in behaviors, such as nodding off or sleeping, that could lead to an unfair trial, that issue must be addressed.   

 As an intern at a prosecutor’s office, I have observed numerous instances of jurors nodding off, with only one case where the issue was resolved. During a direct examination, the judge noticed inattentive jurors and interrupted the examination without a request from counsel. He prompted the entire box to stand up and stretch, a beneficial intervention. However, what is the best solution when counsel notices a sleeping juror, but a judge does not? How can counsel address this issue while still presenting a compelling and influential case? How about if the juror is sleeping during opposing counsel’s arguments? The answers to these questions are all based on personal strategies.  

 One trial attorney suggests, “One of the most tactful ways to handle this [sleeping jurors] is to whisper to the court officer that one of the jurors is sleeping and ask if he would politely go over and wake him up.” [2] However, this solution may not be ideal because it risks losing rapport with the jury. After the court officer walks over, that sleeping juror perceives counsel as the person who disrupted their rest and caused them embarrassment in the presence of their peers. Once the personal connection is lost, that attorney lacks trust, credibility, and empathy in the eyes of the jury, influencing the jurors’ decision-making process to potentially not rule in counsel’s favor.  

 An alternative suggestion is for counsel to pause and ask the judge to meet at sidebar. This is a private conversation between counsel and the judge, which is distant from the jurors and, therefore, can have little to no influence on their opinions prior to coming to a verdict. As a result of the sidebar, “…the judge could dismiss the sleeping juror for juror misconduct or declare a mistrial. […] The judge could also seat an alternate juror.” [3]  

However, there are several disadvantages to this recommendation. The alternate juror may not be the best replacement for your client. Compared to the sleeping juror, the alternate juror could have stated information during the selection process that counsel believes could lead them to not rule in your favor. Ignoring the sleeping juror and letting them remain on the jury might be more beneficial in this situation. Sometimes, the juror could nod off during opposing counsel’s arguments, and allowing them to do so, although ethically controversial, could even be the best option. It is also essential to note that a conversation at sidebar is off the record, and “[t]hat could be a problem if one side decides to appeal and one of the issues that is being appealed concerns the judge’s decision…” [4] 

 A more appropriate solution is to add a sensory variant during the trial. A litigation training and trial consulting service suggests, “You can try raising and lowering your voice to emphasize important points, use sweeping hand gestures to pull a jury’s attention, or touch and move visual aids about the courtroom.” [5] A more subtle way to recapture a sleeping juror’s attention is to stray from the podium and move around. Get closer to that juror and speak with added emphasis to wake them up. Use more engaging graphics and animations during summations to maintain enthrallment. These methods avoid bringing direct attention to the juror nodding off and could foster tremendous respect and appreciation amongst the jury for how the attorney handled the situation.  

If the prosecuting attorney or the judge does not address the problem of a sleeping juror, the defense may raise the issue of juror misconduct. Subsequently, the defense must demonstrate that: “the juror did in fact sleep or otherwise not pay attention during the trial, and the juror missed important information that made it impossible to render a fair, informed, and impartial verdict.” [6] This proof is typically provided through the testimony of other jurors who observed the sleeping juror. Upon establishing misconduct, various remedies can be pursued, such as: “discharging the juror and replacing her with an alternate, holding the juror in contempt, instructing the jury that sleeping and inattentiveness won’t be tolerated, and that jurors who violate that order could be dismissed and sanctioned, granting a motion for mistrial (if the misconduct was discovered before the verdict), and granting a motion for a new trial (if the misconduct was discovered after the verdict).” [7] 

 Overall, sleeping jurors can impair the fairness of our criminal justice system. However, the approach to addressing them remains a controversial debate all based on personal strategies. As a litigator, it is crucial to maintain the jury’s attention because if they snooze you lose. 

 [1] Morgan v. Illinois, 504 U.S. 719 (1992); Duncan v. Louisiana, 391 U.S. 145 (1968). 

 [2] Gerry Oginski, Juror Falls Asleep During Trial, What Can I Do About It?, New York Medical Malpractice & Accident Trial Lawyer, https://www.oginski-law.com/blog/juror-falls-asleep-during-trial-what-can-i-do-about-it-.cfm?q=sleeping%20juror. 

[3] LawInfo Staff, What Happens if a Juror Falls Asleep in a Trial?, LawInfo (last updated Jan. 11, 2024), https://www.lawinfo.com/resources/criminal-defense/what-happens-if-a-juror-falls-asleep-in-a-tri.html#:~:text=If%20the%20sleeping%20juror’s%20inattentiveness,also%20seat%20an%20alternate%20juror. 

[4] Gerry Oginski, Why Do Attorneys Approach the Bench and Speak in Hushed Tones After Judge Agrees to a Sidebar?, New York Medical Malpractice & Accident Trial Lawyer, https://www.oginski-law.com/library/your-honor-i-would-like-a-sidebar-legal-issue-to-discuss-.cfm. 

[5] 3 Strategies to Keep Jurors on the Edge of their Seats, The Winning Litigator, https://winninglitigator.com/3-strategies-to-keep-jurors-on-the-edge-of-their-seats/#:~:text=Put%20The%20Jury%20In%20The%20Moment&text=One%20simple%20way%20in%20which,you%20are%20attempting%20to%20tell. 

[6] Celeste Bacchi, When Jurors Sleep or Don’t Pay Attention, NOLO, https://www.nolo.com/legal-encyclopedia/what-happens-jurors-sleep-dont-pay-attention-during-trial.html. 

[7] Id.