1. State v. Aguilar, 230 P.3d 358 (Ariz. Ct. App. 2010), as corrected
(May 7, 2010).
2. Dunn v. Maras, 182 Ariz. 412, 420 (Ct. App. 1995).
3. State v. Falcone, 2 CA-CR 2007-0055, mem. decision (Ariz. Ct.
App. May 29, 2008).
4. Id. at ¶ 8.
5. Id. at ¶ 10.
6. State v. Thompson, 1 CA-CR 11-0424, mem. decision (Ariz. Ct.
App. Oct. 23, 2012).
7. State v. Rapp, 1 CA-CR 09-0115, mem. decision (Ariz. Ct. App.
Mar. 18, 2010).
8. Id. at ¶ 6.
9. Id.
10. State v. Welch, 236 Ariz. 308 (Ct. App. 2014).
11. Id. at 313.
12. Id.
13. State v. Burns, 344 P.3d 303 (Ariz. 2015).
14. Id. at ¶113.
15. Id.
16. State v. Quintero, 2 CA-CR 2013-0269, 2014 WL 7445830,
mem. decision (Ariz. Ct. App. Dec. 29, 2014).
17. 229 Ariz. 180 (Ariz. 2012).
18. Id. at ¶ 10.
19. Id.
20. State v. Waymire, 2 CA-CR 2008-0286, mem. decision (Ariz. Ct.
App. April 30, 2010).
21. State v. Hamrick-Bradway, 2 CA-CR 2010-0110, mem. decision
(Ariz. Ct. App. Mar. 23, 2011).
22. State v. Moran, 2 CA-CR 2010-0121, mem. decision (Ariz. Ct.
App. July 21, 2011).
23. Id.
24. Id. at ¶ 10.
25. Id.
26. Quintero, 2014 WL 7445830.
27. Id. at ¶ 14.
28. Id.
29. Id.
30. For the purposes of this article, the extraneous evidence would be
information that a juror obtained through Internet research or communications with others through social media during the course of a
trial, including deliberations. Such communications include, but are
not limited to, Facebook, Twitter, LinkedIn, You Tube, Instagram,
Tumblr, Pinterest, Vine, Google, blogging, and posting on websites.
31. 204 Ariz. 442, 448 (2003).
32. Id.
33. Id.
34. ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 466
(2014) (discussing a lawyer’s review of a juror’s internet presence).
35. Id.
36. Model Rules Of Prof’l Conduct 1. 1, cmt. 8 (ABA 1983) provides
in part: “[ 8] To maintain the requisite knowledge and skill, a lawyer
should keep abreast of changes in the law and its practice, including
the benefits and risks associated with relevant technology.”
37. Aguilar, 230 P.3d at 358, as corrected (May 7, 2010).
38. State v. Slover, 220 Ariz. 239, 245 (Ct. App. 2009).
39. State v. Lukezic, 143 Ariz. 60, 63 (1984).
40. Id.
41. State v. Nevell, 212 Ariz. 389, 403 (2006).
42. State v. Burns, 344 P.3d at 328 (Ariz. 2015).
43. Villa v. Furar, 1 CA-CV 13-0653, mem. decision (Ariz. Ct. App. June
9, 2015).
endnotes
In addition, not every case of juror misconduct will result in a new trial or a juror being excused. “The court’s response should
be ‘commensurate with the severity of
the threat imposed.’” 42 Remembering these
two principles could save your client thousands of dollars in an appeal where the reviewing court finds no abuse of discretion
in the lower court’s actions or application of
the law. Different types of exposure to extraneous information will result in different
remedies. Some arguments of juror misconduct only amount to unsupported supposition. In those instances, even designating a
juror as an alternate juror, to be released prior to deliberations, 43 could be appropriate.
4. Know the developing case law across
the nation.
A clear understanding of the evolving case
law on juror misconduct, based on social
media, the Internet and texting, is essential
to know how to proceed when potential
juror misconduct issues are identified and
exposed. Careful case law analysis teaches
the lawyer how to develop and investigate
evidence of juror misconduct, along with
preserving that evidence and the court’s rul-
ings in the record on appeal. Lawyers need
to understand what works and what does
not work in moving for a new trial based on
juror misconduct, especially because the rul-
ings are highly fact-intensive, with distin-
guishing facts being pivotal to the outcome.
Conclusion
Social media and Internet use by jurors
is a problem that can affect every litigant.
Courts across the country are dealing with
how jury exposure to this digital type of ex-
traneous evidence poses a real and legitimate
threat of tainting the verdict through juror
misconduct. Understanding how jurors are
exposed to extraneous evidence in this dig-
ital age, along with how the lower courts
are handling these violations, is key to pro-
tecting the interests of your client and pro-
tecting the integrity of the verdict. Alleged
acts of juror misconduct based on online
and social media exposure are fact-intensive,
so understanding the circumstances of the
exposure is vital to determining whether
a motion for new trial or lesser remedy is
appropriate. Lawyers and their clients can-
not ignore the need to monitor the jury for
potential juror misconduct during trial; the
failure to do so could result in losing cases,
without evidentiary support to appeal to a
higher court.
