BY NILGÜN AYKENT ZAHOUR The Verdict Is In
Juries, Misconduct, and Social Media
NILGÜN AYKENT ZAHOUR is an Illinois-licensed attorney with over 26 years of experience in medical malpractice
defense, insurance defense, general litigation and appeals. She is the Founding Member of SM JUROR, INC.,
which provides nationwide juror monitoring for a juror’s Internet presence and also publishes The SM Juror
Misconduct Case Law Report, which analyzes juror misconduct cases involving social media, the Internet,
and texting, and offers attorneys illustrative and strategic options to preserve the issue at trial and on
appeal under the abuse of discretion standard of review. She can be reached toll-free at 1-844-SM-JUROR
or by email at nzahour@smjuror.com. www.smjuror.com
Excellent facts. Persuasive law. Outstanding
witnesses. Highly skilled attorneys and favorable rulings. With this recipe for success,
how could something go so terribly wrong
when the verdict was rendered? Who would
have thought that a computer, a smartphone or “friending” could make a lawyer’s
case disintegrate?
Jurors who are curious about evidence
or simply dissatisfied with its presentation at
trial can now aggressively and easily research
anyone or anything on the Internet. They
can secretly transform themselves into in-
vestigators, lawyers, and judges, without the
requisite education or training, and weigh
evidence that attorneys typically would want
barred by motions in limine. Despite con-
tinual admonitions from the trial court not
to conduct outside research on any aspect
of the case, nor to communicate with any-
one about it, some jurors “need” to investi-
gate matters until they can put together the
pieces of the puzzle all by themselves. Once
they think they have figured it all out, they
can’t wait to share their results with the oth-
er jurors. After all, who needs lawyers asking
questions when jurors can research facts on
their own? The Rules of Evidence don’t re-
ally apply; do they?
“Juror Misconduct 101”
In just a few clicks, a juror can “Google”
a legal definition like “first-degree murder”
or “premeditation” 1 to help them understand the case, explain their findings to other jurors, and then teach them “the law,”
as described by the Internet—whatever that
means. But what happens if that Internet
definition bears no resemblance to the actual jury instruction defining the legal term,
or adds to it, deletes from it, or is just plain
wrong? Answer: One party just lost their
case; or conversely, with the help of juror
monitoring, one side might have valid evidentiary support demonstrating juror misconduct as a basis for their motion for new
trial.
For example, jurors can research the
backgrounds of individual and corporate
parties or witnesses, legal terms, lawyers,
judges, reputations, medical procedures, or
the uses and adverse reactions of prescriptive
medications mentioned at trial. They can access distances and locations, media reports,
The Internet and social media play a
significant role in almost everyone’s lives.
As a result, lawyers must protect their clients against the overwhelming risk of juror
misconduct because jurors’ exposure to, and
consideration of, extraneous evidence from
these outside sources could taint the verdict.
Without juror monitoring, the integrity of
the verdict becomes threatened, leaving attorneys and their clients without evidentiary
support to move for a new trial, or pursue
the issue on appeal.
