Technology has created a new avenue for identifying potential juror misconduct. I read a recent article about a juror who commented on Facebook that it was going to be fun to tell the defendant he was guilty. The problem was that the evidence had not concluded. She updated her Facebook status with the comment during a break in the trial. Whether you are a criminal or civil trial lawyer you know a juror is supposed to wait until they have heard all the evidence before making up their mind. However, all trial lawyers have heard the jury consultants say that as a practical matter most jurors make up their minds by the end of the opening statement.
In the case of this juror, the update was found by a member of the defense lawyer's staff who was reviewing juror Facebook pages when he ran across the update. When the judge in the case was advised of the update, the judge replaced the Facebooking juror with one of the alternates on the case.
Now, was it really misconduct for the juror to post her feelings on Facebook? Under current standards there is no question that it was. However, are we putting form over substance? If most jurors make up their minds by the close of evidence where was the harm? Was it making up her mind too soon or in telling folks that she had made her decision? Given what the juror posted, was it a reflection of how the entire jury panel felt and should the defendant not have gotten a mistrial?
As a practical matter, you can bet my staff will be reviewing juror Facebook pages during my future trials.
