What do you say to a naked lady? That was the title of an early reality film in 1970. We won't go there, except to say that in the film, which used a hidden camera to record people's reactions, there was no doubt the woman was naked.
The question now before the court is what do you (or, more specifically, a judge) say to a sleeping juror when it's not certain she was sleeping . And what does he do about it if she was?
This isn't an academic question, but central to an actual case currently before the state's highest court, the Court of Appeals. And not just any case, but a murder case in which the defendant was convicted and sentenced to 31 years to life in prison.
One of the jurors appeared to be dozing in the courtroom, and the trial judge asked her if she was sleeping . She told him she was taking cough medicine that made her drowsy, which should have prompted further questioning about her level of consciousness and understanding of what was going on in the trial, whether she was fit to serve.
The judge did question the woman again, after another juror complained that in deliberations she was "just basically sleeping ," but stopped there when she denied it. Especially given her admission about drowsiness in the courtroom, and the seriousness of the charges against the defendant, he should have pushed further to determine whether she was sleeping in the jury room by asking more questions of her and other jurors .
The judges on the Court of Appeals stressed the difficulty of determining somnolence (the woman could possibly have just been closing her eyes or praying), which is true. But unlike a defendant's guilt, it doesn't have to be proved beyond the shadow of a doubt. If the judge had good reason to believe a juror missed testimony in the courtroom because she was sleeeping, and didn't or couldn't participate in deliberations in the jury room for the same reason, then she should have been dismissed and replaced by an alternate, or a mistrial declared and a new trial started.
Jurors don't have to be brilliant, but they should at least be awake.