No Presumption of Juror Misconduct from Non‑Daily Admonitions; Smith’s Jury‑Admonition Guidelines Reaffirmed and Modernized — Ushery v. State (Del. 2025)

Introduction

In Ushery v. State (Del. Sept. 8, 2025), the Delaware Supreme Court affirmed convictions for first-degree assault, first-degree robbery, and possession of a deadly weapon during the commission of a felony, arising from a violent robbery of a jewelry store. After a first trial ended in a mistrial, a second jury convicted the defendant, and the Superior Court sentenced him as a habitual offender. On appeal, the defendant advanced two principal theories of reversible error tied to juror management in the digital age:

• That the trial judge failed to admonish jurors daily not to discuss or research the case, and made a mid-trial “not concerned” comment that allegedly signaled indifference to extrajudicial exposure; and
• That a note from an alternate juror (Juror 15) posed questions suggesting possible extrajudicial research and unresolved hearing issues, which the court failed to investigate adequately or remedy by excusing the juror.

Importantly, the appellant urged the Court to adopt a new rule: if a trial court fails to admonish a jury not to discuss the case or conduct research, courts should apply a rebuttable presumption that jurors did so. The Supreme Court rejected that invitation, found no plain error on the record, and used the case to reaffirm and modernize Delaware’s longstanding guidance on jury admonitions for the realities of internet and social media.

Summary of the Opinion

• No presumption of misconduct from non-daily admonitions: The Court refused to presume juror misconduct merely because the trial judge did not repeat admonitions every day. It emphasized that admonitions were in fact given during voir dire, at the end of Day 1, and again in final instructions, and that daily admonitions are not mandatory under Delaware law.
• Plain-error review controls unpreserved claims: Because the defense did not object at trial to the frequency or content of admonitions—or to the judge’s “not concerned” remark—review was for plain error, a demanding standard not met here.
• “Not concerned” comment was contextual: Read in context, the trial judge’s remark that he was “not concerned” whether jurors had previously encountered publicity (e.g., video coverage) did not authorize extrajudicial research; it focused jurors on whether any exposure impaired their ability to remain fair and impartial. The judge simultaneously reminded jurors they were “stuck with the evidence … in court.”
• No abuse of discretion regarding Juror 15: The alternate juror’s questions, though speculative about evidence, did not indicate extrajudicial research or improper communications. The court’s refusal to investigate further or excuse the juror was not an abuse of discretion—especially where the juror did not deliberate.
• Hearing issue resolved: The record reflected that the court addressed Juror 15’s hearing concern; the juror later signaled the issue was resolved (thumbs-up). No plain error occurred.
• Guidance modernized: Reaffirming Smith v. State’s media-exposure guidelines from 1974, the Court “amplified” them for modern technology, urging trial courts to include explicit prohibitions on internet research, electronic communications, and social media use, consistent with Baird v. Owczarek and federal model instructions, while declining to mandate any specific script.
• Result: Convictions affirmed.

Analysis

Precedents Cited and Their Influence

• Smith v. State (Del. 1974): Established practical guidelines—not mandates—for trial judges to caution jurors against media exposure daily and to inquire regularly about exposure. In Ushery, the Court reaffirmed Smith, emphasized that failure to admonish daily is not per se reversible error, and updated the guidance to cover modern technology.
• Baird v. Owczarek (Del. 2014): Held that credible allegations of juror internet research in violation of explicit judicial instructions trigger a rebuttable presumption of prejudice and require an investigation; failure to investigate is reversible error. In Ushery, the Court distinguished Baird: there were no allegations or evidence that any juror conducted extrajudicial research, so the Baird presumption did not arise.
• Schwan v. State (Del. 2013): Juror removal decisions receive deference. If the trial court fails to sufficiently inquire into bias, the appellate court independently evaluates impartiality (akin to de novo). In Ushery, no further inquiry was required on this record; thus, deference applied and no abuse of discretion occurred.
• Wainwright v. State (Del. 1986): Articulated Delaware’s stringent plain-error standard: the error must be plain on the face of the record, basic and serious, and undermine fairness and integrity of the proceedings. Ushery’s claims fell short.
• Johnson v. State (Del. 2009): Courts presume juries follow instructions. Given the multiple admonitions here, that presumption favored affirmance.
• Parson v. State (Del. 1971); Hughes v. State (Del. 1985): Focus on whether exposure to extraneous information undermines juror impartiality. The “not concerned” comment was assessed through this lens.
• U.S. Supreme Court references: United States v. Wood (1936) (impartiality is a state of mind; no rigid test) and Mu’Min v. Virginia (1991) (trial courts have primary responsibility and discretion in pretrial publicity issues). These support deference to trial judges’ juror-management judgments.
• Other persuasive authority: United States v. Richardson (D.C. Cir. 1987) (daily repetition of admonitions is ideal but not automatically required); United States v. Fumo (3d Cir. 2011) and United States v. Ganias (2d Cir. 2014) (endorse modernized instructions addressing electronic communications and internet research).

Legal Reasoning

The Court’s analysis proceeds from the threshold standard of review. Because defense counsel did not contemporaneously object to the frequency of admonitions or to the mid-trial “not concerned” statement, the claims were reviewed for plain error. That standard cabins relief to defects obvious on the face of the record that seriously prejudice substantial rights and compromise the trial’s integrity.

Applying that standard, the Court rejected both the factual premise and the legal consequence of the defendant’s admonition claim:

• Admonitions were given: Jurors were cautioned during voir dire not to discuss the case or access media/internet; at the close of Day 1, the court again told them not to talk about the case, not to conduct “Google” or internet research, and not to read press; and in final instructions, the court reiterated that verdicts must be based solely on evidence in court and explained why independent research undermines the jury’s integrity as a unified fact-finding body.
• Daily admonitions are not mandatory: Smith’s daily-admonition practice is recommended, not required, and failure to repeat admonitions daily does not automatically amount to reversible error. The Court declined to presume misconduct in the interval between voir dire and the end-of-day instruction.
• “Not concerned” statement in context: Defense counsel raised the risk of jurors recalling media coverage after viewing the in-store video. The judge told jurors he was “not concerned” whether they had seen prior coverage; he was concerned only if any exposure impaired their ability to be “fair and impartial and objective.” The Court held reasonable jurors would not read this as permission to conduct research; rather, it framed impartiality as the touchstone and reinforced reliance on “evidence … in court.” Defense counsel, notably, responded “Thank you” when the judge previewed the instruction—a further reason plain error was not shown.

On the juror-specific issue, the Court concluded:

• No basis to infer extrajudicial research: Juror 15’s questions—about comparing eyeglasses and a possible translation confusion (“sundress” vs. “mask”)—were speculative comments on the evidence presented, not proof of outside research. Under Lovett v. State, “something more than unverified conjecture” is required to warrant investigation. Both parties’ preference to excuse the juror did not compel removal.
• Hearing concern adequately addressed: The court and bailiff attempted to resolve hearing-assistance technology; later, the juror signaled the issue was resolved. No record indicated the juror failed to hear critical testimony. Moreover, Juror 15 was an alternate and did not deliberate, mooting any claim of deliberative contamination.

Finally, the Court used the case to “amplify” Smith’s guidance—recognizing that juror instructions must evolve with technology—by urging trial judges to explicitly forbid internet research, electronic communications, and social media use regarding the case, and to consider end-of-day cautions and beginning-of-day exposure inquiries. It stopped short of mandating specific language, noting the pace of technological change and the need for judicial discretion.

Impact and Practical Implications

For Delaware trial courts

• Discretion preserved; vigilance encouraged: Daily admonitions remain best practice but are not mandatory. Judges retain broad discretion in timing and phrasing, but should modernize admonitions to cover smartphones, search engines, messaging apps, and social media platforms by name and category.
• Update model charges: Courts should periodically review pattern instructions to reflect new platforms and modalities (e.g., ephemeral messaging, AI chat tools), as the Court cautioned against mandating static scripts.
• Conduct targeted inquiries when warranted: If credible allegations arise that jurors violated no-research instructions (as in Baird), a prompt, court-led inquiry is required and a rebuttable presumption of prejudice will attach.
• Use clear, formal language: The Court suggested avoiding colloquialisms that could be misinterpreted; precision helps jurors understand the rationale for restricting outside information.
• Document accommodations: When hearing or other accessibility issues arise, make a record of remedial steps and confirm resolution with the juror.

For trial counsel

• Preserve, preserve, preserve: If you want daily admonitions, ask for them on the record. If a judicial comment could be misunderstood, request an immediate clarifying instruction. Preservation avoids the constraints of plain-error review.
• Bring evidence, not conjecture: To trigger a Baird-type inquiry, proffer concrete facts suggesting a juror received extraneous information or violated a direct instruction. Mere speculation—even about unusual juror questions—will not suffice.
• Propose modern instructions: Offer updated no-research/no-communication charges that cover contemporary technologies and platforms; ask the court to give the caution at end of each day and to conduct brief exposure checks each morning when warranted (e.g., high-profile trials).

For appellate practice

• Uphill plain-error path: Ushery underscores that unpreserved jury-admonition challenges rarely meet plain-error’s exacting threshold absent evidence of actual exposure or prejudice.
• No new presumption adopted: Delaware will not presume juror misconduct because admonitions were not repeated daily. The Baird presumption remains limited to credible allegations or evidence of a no-research instruction being violated.

Substantive law development

• Modernized Smith guidance is the “new” take-away: While the judgment is case-specific, the Court’s forward-looking admonition guidance will influence voir dire, interim cautions, and final instructions across Delaware courts, aligning local practice with national trends (e.g., Judicial Conference model instructions; Fumo; Ganias).
• State constitutional claim not reached: The Court noted appellant did not adequately brief a state constitutional theory; future litigants seeking state-specific protections should brief the Lloyd/Thomas factors (text, history, state traditions, structural differences, etc.).

Complex Concepts Simplified

• Plain error: An unobjected-to error that is obvious on the record, fundamental, and so prejudicial that it undermines the fairness and integrity of the trial. It is a high bar; most claims fail if not preserved at trial.
• Jury admonitions: Instructions telling jurors not to discuss the case outside the jury room and not to look up information (news, internet, social media). They protect the right to a verdict based solely on evidence admitted in court.
• Rebuttable presumption of prejudice (Baird): When there is credible evidence that a juror violated a no-research instruction and accessed external information, courts presume prejudice and must investigate; the State may attempt to rebut.
• Pretrial publicity vs. extrajudicial research: Exposure to news coverage before trial raises impartiality concerns but does not automatically require removal if the juror can remain fair. Extrajudicial research during trial is categorically prohibited and, if proven, is presumptively prejudicial.
• Alternate juror: A juror who hears the evidence but is excused before deliberations unless needed to replace a deliberating juror. Missteps by an alternate generally pose less risk to the validity of a verdict.
• Juror impartiality: A juror’s ability to decide the case based only on evidence presented in court and the judge’s instructions, without being influenced by outside information or bias.

Conclusion

Ushery v. State reinforces core jury-trial principles while pragmatically addressing modern realities. The Delaware Supreme Court declined to adopt a new presumption of juror misconduct simply because admonitions were not given every day. It found no plain error in the trial court’s handling of admonitions, a mid-trial comment about pretrial publicity, or an alternate juror’s speculative questions and resolved hearing issue. At the same time, the Court reaffirmed Smith’s media-exposure guidance and explicitly urged trial judges to update admonitions to cover electronic devices, internet research, and social media.

The decision’s practical message is twofold: first, juror instructions must be robust and modern, but their precise timing and wording lie within the trial court’s discretion; second, appellate relief demands evidence, not conjecture. Baird’s presumption of prejudice remains a potent remedy when credible allegations of no‑research violations arise, but absent such evidence, Delaware courts will presume jurors followed the instructions they were given. In that balance, Ushery provides a durable roadmap for managing juries in an era where the internet is ubiquitous yet the jury’s duty—to decide cases only on evidence presented in court—remains unchanged.