Practice Tip: Protecting Your Verdict

Although there are myriad variations, actual juror misconduct typically occurs in the following ways: 1) improper contact between a juror and third parties; 2) exposure to extra-judicial materials and information; 3) improper experiments and reenactments; 4) untruthful statements during voir dire; 5) bias and prejudgment; 6) physical and mental incompetence; 7) pre-deliberation discussions; and 8) failure to apply the law pursuant to the court's instructions, i.e., nullification. See generally Bennett L. Gershman, Contaminating the Verdict: The Problem of Juror Misconduct, 50 S.D. L. Rev. 322 (2005). The prevalence of portable technology and the rise of social media are rapidly increasing the opportunity for ' and actual instances of ' true juror misconduct. Examples of such misconduct abound in the popular press. See, e.g., Murder Case Mistrial over Juror's Facebook Comments, CBS News, July 18, 2012, available at www.cbc.ca/news/canada/new-brunswick/story/2012/07/18/nb-prosser-trial-929.html. This issue is also becoming the subject of significant legal scholarship. See, e.g., Thaddeus Hoffmeister, Google, Gadgets, and Guilt: Juror Misconduct in the Digital Age, 83 U. Colo. L. Rev. 409 (2012); Hon. Amy J. St. Eve & Michael A. Zuckerman, Ensuring an Impartial Jury in the Age of Social Media, 11 Duke L. & Tech. Rev. 1 (2012).

Consequences

There is no doubt that even seemingly innocent lapses can have significant consequences. In Tapanes v. State, for example, the jury foreperson used his iPhone to look up the definition of “prudent” during a lunch break; he then shared the definition ' as he recollected it ' with the rest of the jury. 43 So. 3d 159, 162 (Fla. 4th Dist. Ct. App. 2010). After the defendant was convicted of manslaughter, one of the jurors brought the incident to the attention of the defendant's attorney. Id. Following an evidentiary hearing, the trial court denied the defendant's motion for a new trial, finding that the juror misconduct was harmless. Id. The appellate court disagreed:

In the present case, looking up the definition of 'prudent' could hardly be considered harmless ' The concept of 'prudence' is one that could be key to the jury's deliberation. At the very least, we cannot say that there is no reasonable possibility that the juror's misconduct, by utilizing a smartphone to retrieve the definition of 'prudence,' did not affect the verdict in this case.

Id. at 163.'

Not every instance of juror misconduct is fatal to the jury's verdict. In People v. Rios, for example, a juror attempted to contact one of the prosecution's witnesses via Facebook. Index No. 1200/06, 2010 WL 625221 (N.Y. Sup. Ct. Bronx Co. Feb. 23, 2010), aff'd, 87 A.D.3d 916 (1st Dep't 2011). The prosecution learned of the attempted Facebook contact after the jury had rendered a guilty verdict and brought it to the court's and defense counsel's attention. Id. at *3. Following a hearing during which both the juror and witness were questioned, the court denied the defendant's request to set aside the verdict. The court agreed that the juror's conduct “was unquestionably a serious breach of her obligations as a juror and a clear violation of the court's instructions.” Id. at *4. Nevertheless, the court noted that “[b]efore a court can set aside a verdict based on a juror's violation of a rule ' the misconduct must have prejudiced a substantial right of the defendants.” Id. The court found no such prejudice in the facts of the case.

Strategies for Avoiding and Defeating Claims of Jury Misconduct

The prevalence of stories about jury misconduct in the digital age seems to indicate that there is no easy fix for this problem. Smart phones are here to stay, social media is omnipresent, and jury service may not be convenient or engaging for some, if not most, jurors. Nevertheless, there are at least two practical devices the practitioner can employ to minimize the likelihood of jury misconduct. Those devices are addressed below. Finally, in the event you are faced with actual juror misconduct, Section 2 addresses the standard that will apply to claims for a new trial.

Ideas for Avoiding Jury Misconduct

Jury instructions that specifically address technology and social media seem to be the most prevalent response to the risks posed by these intrusions. See St. Eve & Zuckerman, supra; see also Meghan Dunn, Jurors' Use Of Social Media During Trial and Deliberations: A Report to the Judicial Conference Committee on Court Administration and Case Management, Federal Judicial Center (Nov. 22, 2011), www.fjc.gov/public/pdf.nsf/lookup/dunnjuror.pdf/$file/dunnjuror.pdf. Many of the judges who give such instructions use the model instructions from the United States Judicial Conference Committee on Court Administration and Case Management (CACM). Judicial Conference Committee on Court Administration and Case Management, Proposed Model Jury Instructions: The Use of Electronic Technology to Conduct Research on or Communicate about a Case (June 2012), http://www.uscourts.gov/uscourts/News/2012/jury-instructions.pdf%20'(last visited on March 8, 2013). The CACM models propose a similar instruction to be provided at the close of evidence.

The American College of Trial Lawyers also offers model instructions, including a recommended juror pledge. See American College of Trial Lawyers, Jury Instructions Cautioning Against Use of the Internet and Social Networking, www.actl.com/AM/Template.cfm?%20Section=Home&template=/CM/Con
tentDisplay.cfm&ContentID=5213 (last visited on March 8, 2013).

A second possible way to minimize risk of technological jury misconduct is to utilize voir dire to identify ' and hopefully avoid ' the jurors who may be most prone to abuse technology. This could be particularly important if your judge does not intend to give specific instructions about social media and technology. Jurors could be asked whether, and how often, they use social media and smartphones. Those who use them often could be asked whether they will be able to curtail their use during the pendency of the trial.

Strategies for Defeating Claims of Jury Misconduct: It's All About Prejudice

If you are facing a claim of actual juror misconduct, the standard of proof is of paramount importance. In most states, a litigant is not entitled to a new trial merely because he or she can demonstrate the existence of juror misconduct. Rather, in those states, the party seeking a new trial must typically establish that it suffered or likely suffered substantial prejudice as a result of that misconduct. See, e.g., Altman v. Bobcat Co., 349 Fed. Appx. 758, 760-63 (3d Cir. 2009). Accordingly, “a new trial is not required if the jury can remain impartial and unprejudiced and can confine its deliberations to the record evidence.” Id.

Some states, however, reverse the burden of proof. In Florida, for example,”[o]nce juror misconduct is established by juror interviews, the moving party is entitled to a new trial unless the opposing party can demonstrate that there is no reasonable possibility that the juror misconduct affected the verdict.” Tapanes, 43 So. 3d at 162-63 (internal punctuation, quotation marks and citation omitted; emphasis in the original).

In cases where juror misconduct actually exists, the general lesson is quite simple: A new trial is not warranted in the absence of actual prejudice. Thus, if a party claims that misconduct occurred because the jury considered extraneous evidence, that party must establish such evidence actually reached and prejudiced the jury. In Porchia v. Design Equip. Co., for example, the plaintiff sought a new trial due to alleged juror misconduct. 113 F.3d 877, 883 (8th Cir. 1997). The plaintiff alleged that a juror's relative had approached the plaintiff's relative to inquire why another entity had not been named as a defendant; the juror's relative indicated that numerous jurors had asked this same question. Id. at 883. The trial judge denied plaintiff's request for a new trial, and the plaintiff appealed. Affirming the trial court's decision, the Eighth Circuit explained that the plaintiff “did not assert that any extraneous information actually reached a jury member,” and therefore “offered nothing to suggest that he was prejudiced by the jury's exposure to any extraneous information.” Id. Consequently, the “District Court acted well within its discretion in determining that these speculative allegations did not merit further investigation and in denying [plaintiff's] motion for a new trial.” Id.'

The decision in In re MTBE Prod. Liab. Litig., 739 F. Supp. 2d 576, 591-93, 609-612 (S.D.N.Y. 2010) demonstrates a similar requirement for proof of actual prejudice. During deliberations, the court learned that one of the jurors had conducted limited research on the Internet, which he then passed on to the some of the other jurors. Id. at 591-92. One juror learned that there was going to be a fourth phase of the trial. Id. at 592. Another juror learned that other defendants had been sued but had settled. Id. The court initially noted the dangers posed by technology. Nevertheless, with respect to the information discussed in this case, the court was not persuaded that a new trial was required. As the court explained, none of the information considered by the jury was prejudicial. As to the damages phase, the court determined “[m]ere knowledge of a possible penalty phase is insufficient to create prejudice.” Id.

Conclusion

Trials are becoming both less common and more expensive. This reality creates an unfortunate divergence: as familiarity with post-verdict strategies wanes for some litigators and their clients, the prejudice resulting from a new trial rises dramatically. At the same time, the prevalence of technology and social media render jury verdicts increasingly unstable and/or subject to attack. For all of these reasons, the trial practitioner must be alert to the potential juror issues ' polling, post-trial contact, juror affidavits ' that have the potential to upset an otherwise optimal outcome. Knowing how to address these issues ' and how to avoid or minimize juror misconduct in the digital age ' is a critical part in preserving a favorable verdict.

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Christiana Jacxsens is a Shareholder in Greenberg Traurig, LLP's Atlanta office. Daniel I.A. Smulian is an Associate in the firm's New York office. The authors focus their respective practices on defending product liability matters involving pharmaceutical and medical device companies.

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Part One of this article, which appeared in this newsletter's February Issue, identified some of the most common juror-related pitfalls, and provided strategies for countering the allegations and tactics that could give rise to a new trial. Part Two herein focuses on some of the challenges presented by the rise of technology and social media, and describes some measures for avoiding the most prevalent forms of juror misconduct.

Jury Misconduct in the Time of Facebook

Exacerbating Factors: Technology and Social Media

Although there are myriad variations, actual juror misconduct typically occurs in the following ways: 1) improper contact between a juror and third parties; 2) exposure to extra-judicial materials and information; 3) improper experiments and reenactments; 4) untruthful statements during voir dire; 5) bias and prejudgment; 6) physical and mental incompetence; 7) pre-deliberation discussions; and 8) failure to apply the law pursuant to the court's instructions, i.e., nullification. See generally Bennett L. Gershman, Contaminating the Verdict: The Problem of Juror Misconduct, 50 S.D. L. Rev. 322 (2005). The prevalence of portable technology and the rise of social media are rapidly increasing the opportunity for ' and actual instances of ' true juror misconduct. Examples of such misconduct abound in the popular press. See, e.g., Murder Case Mistrial over Juror's Facebook Comments, CBS News, July 18, 2012, available at www.cbc.ca/news/canada/new-brunswick/story/2012/07/18/nb-prosser-trial-929.html. This issue is also becoming the subject of significant legal scholarship. See, e.g., Thaddeus Hoffmeister, Google, Gadgets, and Guilt: Juror Misconduct in the Digital Age, 83 U. Colo. L. Rev. 409 (2012); Hon. Amy J. St. Eve & Michael A. Zuckerman, Ensuring an Impartial Jury in the Age of Social Media, 11 Duke L. & Tech. Rev. 1 (2012).

Consequences

There is no doubt that even seemingly innocent lapses can have significant consequences. In Tapanes v. State, for example, the jury foreperson used his iPhone to look up the definition of “prudent” during a lunch break; he then shared the definition ' as he recollected it ' with the rest of the jury. 43 So. 3d 159, 162 (Fla. 4th Dist. Ct. App. 2010). After the defendant was convicted of manslaughter, one of the jurors brought the incident to the attention of the defendant's attorney. Id. Following an evidentiary hearing, the trial court denied the defendant's motion for a new trial, finding that the juror misconduct was harmless. Id. The appellate court disagreed:

In the present case, looking up the definition of 'prudent' could hardly be considered harmless ' The concept of 'prudence' is one that could be key to the jury's deliberation. At the very least, we cannot say that there is no reasonable possibility that the juror's misconduct, by utilizing a smartphone to retrieve the definition of 'prudence,' did not affect the verdict in this case.

Id. at 163.'

Not every instance of juror misconduct is fatal to the jury's verdict. In People v. Rios, for example, a juror attempted to contact one of the prosecution's witnesses via Facebook. Index No. 1200/06, 2010 WL 625221 (N.Y. Sup. Ct. Bronx Co. Feb. 23, 2010), aff'd, 87 A.D.3d 916 (1st Dep't 2011). The prosecution learned of the attempted Facebook contact after the jury had rendered a guilty verdict and brought it to the court's and defense counsel's attention. Id. at *3. Following a hearing during which both the juror and witness were questioned, the court denied the defendant's request to set aside the verdict. The court agreed that the juror's conduct “was unquestionably a serious breach of her obligations as a juror and a clear violation of the court's instructions.” Id. at *4. Nevertheless, the court noted that “[b]efore a court can set aside a verdict based on a juror's violation of a rule ' the misconduct must have prejudiced a substantial right of the defendants.” Id. The court found no such prejudice in the facts of the case.

Strategies for Avoiding and Defeating Claims of Jury Misconduct

The prevalence of stories about jury misconduct in the digital age seems to indicate that there is no easy fix for this problem. Smart phones are here to stay, social media is omnipresent, and jury service may not be convenient or engaging for some, if not most, jurors. Nevertheless, there are at least two practical devices the practitioner can employ to minimize the likelihood of jury misconduct. Those devices are addressed below. Finally, in the event you are faced with actual juror misconduct, Section 2 addresses the standard that will apply to claims for a new trial.

Ideas for Avoiding Jury Misconduct

Jury instructions that specifically address technology and social media seem to be the most prevalent response to the risks posed by these intrusions. See St. Eve & Zuckerman, supra; see also Meghan Dunn, Jurors' Use Of Social Media During Trial and Deliberations: A Report to the Judicial Conference Committee on Court Administration and Case Management, Federal Judicial Center (Nov. 22, 2011), www.fjc.gov/public/pdf.nsf/lookup/dunnjuror.pdf/$file/dunnjuror.pdf. Many of the judges who give such instructions use the model instructions from the United States Judicial Conference Committee on Court Administration and Case Management (CACM). Judicial Conference Committee on Court Administration and Case Management, Proposed Model Jury Instructions: The Use of Electronic Technology to Conduct Research on or Communicate about a Case (June 2012), http://www.uscourts.gov/uscourts/News/2012/jury-instructions.pdf%20'(last visited on March 8, 2013). The CACM models propose a similar instruction to be provided at the close of evidence.

The American College of Trial Lawyers also offers model instructions, including a recommended juror pledge. See American College of Trial Lawyers, Jury Instructions Cautioning Against Use of the Internet and Social Networking, www.actl.com/AM/Template.cfm?%20Section=Home&template=/CM/Con
tentDisplay.cfm&ContentID=5213 (last visited on March 8, 2013).

A second possible way to minimize risk of technological jury misconduct is to utilize voir dire to identify ' and hopefully avoid ' the jurors who may be most prone to abuse technology. This could be particularly important if your judge does not intend to give specific instructions about social media and technology. Jurors could be asked whether, and how often, they use social media and smartphones. Those who use them often could be asked whether they will be able to curtail their use during the pendency of the trial.

Strategies for Defeating Claims of Jury Misconduct: It's All About Prejudice

If you are facing a claim of actual juror misconduct, the standard of proof is of paramount importance. In most states, a litigant is not entitled to a new trial merely because he or she can demonstrate the existence of juror misconduct. Rather, in those states, the party seeking a new trial must typically establish that it suffered or likely suffered substantial prejudice as a result of that misconduct. See, e.g., Altman v. Bobcat Co. , 349 Fed. Appx. 758, 760-63 (3d Cir. 2009). Accordingly, “a new trial is not required if the jury can remain impartial and unprejudiced and can confine its deliberations to the record evidence.” Id.

Some states, however, reverse the burden of proof. In Florida, for example,”[o]nce juror misconduct is established by juror interviews, the moving party is entitled to a new trial unless the opposing party can demonstrate that there is no reasonable possibility that the juror misconduct affected the verdict.” Tapanes, 43 So. 3d at 162-63 (internal punctuation, quotation marks and citation omitted; emphasis in the original).

In cases where juror misconduct actually exists, the general lesson is quite simple: A new trial is not warranted in the absence of actual prejudice. Thus, if a party claims that misconduct occurred because the jury considered extraneous evidence, that party must establish such evidence actually reached and prejudiced the jury. In Porchia v. Design Equip. Co., for example, the plaintiff sought a new trial due to alleged juror misconduct. 113 F.3d 877, 883 (8th Cir. 1997). The plaintiff alleged that a juror's relative had approached the plaintiff's relative to inquire why another entity had not been named as a defendant; the juror's relative indicated that numerous jurors had asked this same question. Id. at 883. The trial judge denied plaintiff's request for a new trial, and the plaintiff appealed. Affirming the trial court's decision, the Eighth Circuit explained that the plaintiff “did not assert that any extraneous information actually reached a jury member,” and therefore “offered nothing to suggest that he was prejudiced by the jury's exposure to any extraneous information.” Id. Consequently, the “District Court acted well within its discretion in determining that these speculative allegations did not merit further investigation and in denying [plaintiff's] motion for a new trial.” Id.'

The decision in In re MTBE Prod. Liab. Litig., 739 F. Supp. 2d 576, 591-93, 609-612 (S.D.N.Y. 2010) demonstrates a similar requirement for proof of actual prejudice. During deliberations, the court learned that one of the jurors had conducted limited research on the Internet, which he then passed on to the some of the other jurors. Id. at 591-92. One juror learned that there was going to be a fourth phase of the trial. Id. at 592. Another juror learned that other defendants had been sued but had settled. Id. The court initially noted the dangers posed by technology. Nevertheless, with respect to the information discussed in this case, the court was not persuaded that a new trial was required. As the court explained, none of the information considered by the jury was prejudicial. As to the damages phase, the court determined “[m]ere knowledge of a possible penalty phase is insufficient to create prejudice.” Id.

Conclusion

Trials are becoming both less common and more expensive. This reality creates an unfortunate divergence: as familiarity with post-verdict strategies wanes for some litigators and their clients, the prejudice resulting from a new trial rises dramatically. At the same time, the prevalence of technology and social media render jury verdicts increasingly unstable and/or subject to attack. For all of these reasons, the trial practitioner must be alert to the potential juror issues ' polling, post-trial contact, juror affidavits ' that have the potential to upset an otherwise optimal outcome. Knowing how to address these issues ' and how to avoid or minimize juror misconduct in the digital age ' is a critical part in preserving a favorable verdict.

'

Christiana Jacxsens is a Shareholder in Greenberg Traurig, LLP's Atlanta office. Daniel I.A. Smulian is an Associate in the firm's New York office. The authors focus their respective practices on defending product liability matters involving pharmaceutical and medical device companies.

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