The integrity of the jury is the primary responsibility of the trial judge.18 To maintain that integrity, the trial judge has discretionary authority to order sequestration of the jurors, whereby the jurors are isolated from contact with their families or the general public until after they reach a verdict or determine that they are incapable of reaching a verdict.19 The historical custom has been not to sequester a jury unless the defendant is charged with a capital crime.20 In determining whether to sequester a jury, the trial judge should consider the nature of the case, whether there is extraordinary public interest in the case and the possible prejudicial effect upon even one juror of interaction with the public, the news media, family and friends.21 If jurors are sequestered, they are instructed not to discuss the case, even with each other, except when the entire jury is assembled for that purpose as a group.22
The fear of some media publicity during a trial is seldom a sufficient reason for subjecting jurors to the inconvenience of sequestration, particularly where there has been no juror exposure to such news coverage.23 Rather, a party seeking sequestration must notify the court and demonstrate that media publicity during trial will be so massive and pervasive that it cannot be controlled by strict admonitions to the jurors.24
Assuming other factors warrant it, cost and inconvenience are not sufficient grounds for refusing to sequester a jury.25
When jurors are sequestered, either generally or during deliberations, the bailiff is assigned the task of protecting them against outside contact. Before the bailiff takes the jurors to the jury room to begin deliberations, the Prothonotary administers to the bailiff the following oath: Do you, (name), solemnly swear upon the Holy Bible of Almighty God, that you will conduct these jurors to some convenient room and keep them, and you will not allow any other person to speak to them, nor speak to them yourself, without leave of the court, except to ask them if they are agreed upon their verdict(s), so help you God?
After being sworn, the bailiff takes the jurors to the jury room.
18. Bailey v. State, 363 A.2d 312, 317 (Del. 1976), cert. denied, 429 U.S. 1072 (1977).
19. Claudio v. State, 585 A.2d 1278, 1301 n.58 (Del. 1991); Riley v. State, 496 A.2d 997, 1015 (Del. 1985), cert. denied, 478 U.S. 1022 (1986) (sequestration of jury is a matter of discretion, not a constitutional right); Hughes v. State, 490 A.2d 1034, 1049 (Del. 1985); Burke v. State, 484 A.2d 490, 500 (Del. 1984); McBride v. State, 477 A.2d 174, 192-93 (Del. 1984); Flamer v. State, 490 A.2d 104, 129 (Del. 1983), cert. denied, 464 U.S. 865 (1983) and cert.. denied, 474 U.S. 865 (1985); Hughes v. State, 437 A.2d 559, 577 (Del. 1981); Bailey v. State, 363 A.2d 312, 319 (Del. 1976), cert. denied, 429 U.S. 1072 (1977).
20. Hughes v. State, 437 A.2d 559, 577 (Del. 1981); Kominski v. State, 154 A.2d 691, 696 (Del. 1959), cert. denied, 361 U.S. 971 (1960); State v. Van Winkle, 86 A. 310 (Del. O. & T. 1913); State v. Brown, 36 A. 458, 459 (Del. O. & T. 1896).
21. Hughes v. State, 490 A.2d 1034, 1049 (Del. 1985); Hughes v. State, 437 A.2d 559, 577-78 (Del. 1981).
22. Claudio v. State, 585 A.2d 1278, 1301 n.58 (Del. 1991).
23. Riley v. State, 496 A.2d 997, 1015 (Del. 1985), cert. denied, 478 U.S. 1022 (1986).
24. McBride v. State, 477 A.2d 174, 193 (Del. 1984).
25. Hughes v. State, 437 A.2d 559, 577-578 (Del. 1981).
© 2010 David L. Finger