ate about their duty, especially if the case
at trial is somehow analogous to something
the juror already experienced. In State v.
Nelson, 17 the facts of the case involved the
alleged murder of a teenage girl, and the
judge admonished all potential jurors to ignore media coverage of the case. One juror,
whose own teenage girl had been killed, had
very strong feelings about the case. 18 That
juror admittedly did as much research about
the case as possible19 and was excused from
the trial, but remaining jurors were questioned as to whether the juror shared any
of his findings. Sometimes a
juror feels compelled
to reach out
to the victim’s family to answer any questions the family may have had about the trial. Jurors have been known to post on the
memorial “webpage” of a victim, informing
the family that they served on the jury trial
of the deceased relative and offering to discuss the case with them. 20
Texting is also another problematic
source of juror misconduct. Lawyers cannot
monitor individual text messages that jurors
send to others. However, cases involving
juror texting are informative, especially because texting is slowly being replaced by instant messaging on social media.
Those public messages are fair game
for lawyers monitoring for potential juror
misconduct, where jurors may disclose or
receive certain information from outside
sources during trial. Juror texting has re-
sulted in multiple admonitions from judges
to stop jurors from using their cell phones
during trial. Jurors also have been known to
text during deliberations. 21
Jurors who are friends with lawyers or
law students can also encounter difficulties
when they text with each other, even if they
do not discuss the trial. 22 In State v. Moran, 23 a well-meaning juror did not talk to
her law student friend until the verdict for
a criminal trial was entered. The juror asked
the law student friend what “an aggravators
(sic.) trial was.” 24 After the law student explained it to her in a text, the juror informed
her law student friend that the jurors had to
return to court in a month for a sentencing
hearing. 25 An investigation of juror misconduct followed.
In a similar but even more compelling
scenario, a juror was texting and posting
on social media with an attorney friend. 26
After the criminal trial was over, in response to the juror’s question, the attorney friend texted an explanation of
what a post-verdict aggravation hearing was. 27 That juror then forwarded
the attorney’s text to another juror. 28
The second juror thanked the first juror for the helpful information, but
commented that they should not
repeat this information to anyone
because it “may look like independent research.” 29
The inquiry does not end with
the exposure of juror misconduct.
Once the extraneous information is identified, 30 the trial court must determine what,
if any, impact that evidence had on the ju-ror(s) and on the verdict. In State v. Hall, 31
the Arizona Supreme Court identified the
following five factors to assess any contribution the extrinsic evidence may have had
on a verdict:
1. whether the prejudicial statement was
ambiguously phrased;
2. whether the extraneous information was
otherwise admissible or merely cumulative of other evidence adduced at trial;
3. whether a curative instruction was given
or some other step taken to ameliorate
the prejudice;
4. the trial context; and
5. whether the statement was insufficiently prejudicial given the issues and
evidence in the case. 32
An explanation of the fourth factor, the
trial context, includes:
whether the material was actually
received, and if so, how; the length of
time it was available to the jury; the
extent to which the jurors discussed
and considered it; whether the material
was introduced before a verdict was
reached, and if so at what point in the
deliberations; and any other matters
which may bear on the issue of the
reasonable possibility of whether the
extrinsic material affected the verdict. 33
Now is the time to understand the threat
and take preventative measures to protect
your clients from the risk of juror misconduct
compromising the integrity of the verdict.
Practice Tips
1. Always monitor jurors for poten-
tial juror misconduct through their
public uses of social media and the
Internet.
With respect to juror monitoring, the
American Bar Association stated in its Formal Opinion 46634 that, “unless limited by
law or court order, a lawyer may review a
juror’s or potential juror’s internet presence,
which may include postings by the juror or
potential juror in advance of and during a
trial, but a lawyer may not communicate
directly or through another with a juror or
potential juror.” 35
In addition, Comment 8 to Rule 1. 1 of
the Model Rules of Professional Conduct36
also essentially requires lawyers to keep
abreast of changes in relevant technology to
maintain a level of competence in representing their clients.
Technology has evolved to the point
where a juror’s public postings on social
media can be identified and gathered to assist lawyers at every phase of the trial, from
jury selection to post-verdict motions, and
lawyers who do not monitor may place
