and the weather. Jurors could be social media “friends” with the parties, witnesses or
experts testifying at trial, send them messages or blog about the trial. The list is endless, and if a juror wants the information,
be mindful of the fact that they may secretly
research it, despite any admonitions from
the judge. Maybe the trial is too lengthy,
too boring or too complicated, so for some
jurors, secretly “surfing” the Internet to
find information related to the trial could
be both exhilarating and comforting. And
unlike what occurs within the four walls of a
courtroom, the judge cannot always be the
gatekeeper of evidence, especially if neither
the judge nor the attorneys know what extraneous information was obtained.
Local procedures regarding jurors—
ranging from bringing their cell phones
or electronic devices into the courtroom
during trial or jury deliberations—are be-
coming less and less effective. Why? In to-
day’s society, virtually no one can part with
their cell phones, which are their electronic
lifelines to everyone and everything in the
outside world. Jurors still need their phones
to check in with their employers, friends and
family on breaks—before, during and after
trial—which are the only times they can do
so. They inform their contacts that
they are on jury duty, only
to field questions
about
the case or receive statements
and jokes telling them to “hurry
up” and find the defendant guilty.
Even if a juror does not respond to
comments from outsiders, does that
exposure affect the juror’s ability
to deliberate? Can thoughts planted
in the juror’s mind from extraneous
sources be erased?
In both civil and criminal cases,
“extraneous material considered by the
jury may be deemed prejudicial without
proof of actual prejudice if it relates to
the issues of the case and there is a reasonable possibility of prejudice.” 2
Taking away their smartphones will not
solve the problem because they can still
search the Internet at home. For example,
in State v. Falcone, 3 a juror wanted to know
what type of crime an individual must commit in order to have their photograph included in the police database. 4 Because that
type of question was not answered at trial,
a juror researched whether the defendant
had any prior convictions and then sent the
judge a note asking why the jury did not
hear evidence of the defendant’s criminal
history, wondering whether that evidence
was admissible. 5 Information about criminal
histories of parties and witnesses can be ascertained from the superior court website. 6
Curiosity and a few clicks on the computer could potentially nullify any trial court’s
order barring such evidence pursuant to a
lawyer’s motion in limine.
How about when a juror wants to
“solve” a pending issue in the case like
the distance between two points—
the defendant’s home to the victim’s
home. 7 A juror can listen to testimony about the locations and the time
it took to get from one place to the
other and then “verify” that information by doing a search, 8 but what
happens if the juror’s information
about the addresses was inaccurate
and conflicts with the evidence? 9
When a juror is exposed to extra-
neous evidence, questions must
be asked by the judge and the
attorneys to determine what im-
pact, if any, the evidence
may have had on the verdict,
and then what needs to be done about that
exposure.
Sometimes jurors like to play detective
and lawyer in hopes that they can prove or
disprove a party’s claim. In State v. Welch, 10
the defendant was a pool cleaner charged
with multiple counts of sexual exploitation
of a minor under the age of 15. One juror looked up weather data on the Internet
to determine if the defendant was actually
home on the day the child pornography was
viewed. 11 Since that weather data revealed
it was stormy on the day in question, the
juror deduced that the defendant was not
working and was at home to view the pornography. 12
Widespread Problem
For lawyers who are oblivious to the dangers of jurors researching online or communicating through social media during the
trial, just be aware that no one is off-limits. Jurors even research other jurors. 13 In
a death penalty case, one juror “Googled”
another juror and discovered that juror
made contributions to political parties opposed to the death penalty. 14 Sharing his research in a note to the trial judge, the juror
called the second juror a “stealth juror.” 15
Even instances where jurors “friend” each
other can raise a red flag of potential juror
misconduct. 16
Jurors can be very emotional or passion-
