their clients at a distinct disadvantage. With
essentially minimal information, a juror’s
social media posts can reveal important bi-ases that may not otherwise surface during
voir dire. These posts could corroborate or
discredit statements made during voir dire,
which could potentially affect whether a juror is stricken or whether a party was given a
fair trial under the circumstances.
Technology has not yet evolved to the
point where a juror’s online searches can
be directly identified without seizing their
computers or obtaining their IP addresses.
Social media monitoring, however, provides
an important and critical gateway into that
window as a relevant discovery tool. Some-
times a juror’s social media comments reveal
that another juror did an Internet search, or
that another juror was texting with outsid-
ers about the trial. Sometimes a “tweet” or
Facebook message indicating that a juror
has jury duty receives responses from friends
sharing media coverage about the trial.
Sometimes social media monitoring reveals
that a juror has been actively blogging about
the trial.
As trial progresses and the trial court
continually admonishes the jury not to
perform Internet research or communicate
with others about the trial, compliant ju-
rors, either under a sense of responsibility,
or a sense of fear and guilt, often “snitch”
on jurors who did not follow the rules. Ju-
rors watch each other’s smartphone use, and
jurors who are dissatisfied with the verdict,
or afraid a verdict was not reached correctly,
speak out about infractions through notes
to the trial court, messages to attorneys,
or dissatisfying comments on social media.
Once information of possible juror miscon-
duct is revealed, the formal inquiry with the
trial court begins as the issue remains: Was
the juror exposed to extraneous evidence
and if so, what role, if any, did that outside
information play in affecting the verdict?
That being said, do not forget to poll the
jury about each juror’s agreement with the
verdict, as this presents another burden of
psychological responsibility on the jurors
to “come clean” in that they reached their
verdict based solely on the evidence in the
courtroom. Although each juror may say
they agreed with the verdict, social media
monitoring may reveal otherwise. After tri-
al, jurors, as well as alternate jurors, should
continue to be monitored for at least the
time period to file post-verdict motions
since their comments may reveal a juror’s
exposure to extraneous information. The
lawyer has a responsibility to retrieve this
information.
2. Know the correct standard of review.
The superior court’s decision to grant or
deny a new trial based on alleged juror mis-
conduct will not be reversed absent an abuse
of discretion37:
The trial judge is in the best position
to determine whether a particular
incident calls for a mistrial because the
