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"I Know It's True – I Read It on Facebook"

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Annie Dike, IMS ExpertServices BullsEye Blog Writer - RF Cafe

As a former Alabama trial and litigation attorney, Annie has a keen eye for expert evidentiary issues and a clear voice for practical solutions. Annie is a published author of both fiction, non-fiction, and a comprehensive legal practitioner's guide to hourly billing published by LexisNexis. Annie graduated from the University of Alabama School of Law cum laude. While in law school, she served as Vice President of both the Bench and Bar Legal Honor Society and the Farrah Law Society and was a member of the Alabama Trial Advocacy Competition Team

Reprinted with permission.

IMS ExpertServices periodically sends me e-mails that highlight recent key court cases that can significantly affect the effectiveness of expert testimony, both for the plaintiff and for the defendant. You need only scan the headlines I post daily to know the importance of effective legal representation when intellectual property (IP) is being contested.

This article by Annie Dike, writing for IMS ExpertServices, discusses relatively recent issues (last decade or so) caused by the ubiquitous presence of Internet-connected mobile devices and the difficulty with preventing jurors from accessing online resources while listening to evidence and deliberating a decision. Even with being informed that seeking out information sources outside of the evidence introduced during trial proceedings is forbidden - and outright illegal - legal teams are constantly fighting a battle against blatant cheaters. Ms. Dike's advice to her colleagues is to also do a thorough Internet search on topics likely to be searched by jury members to be able to recognize when such breeches of protocol have been perpetrated, and to counter information gleaned as the result of such activities. I wonder whether there are 'sanctuary courtrooms' where illegal acts of this sort are tolerated and even encouraged the way certain 'sanctuary cities' famously abet other types of patently illegal activities?

"I Know It's True – I Read It on Facebook"

Posted by Annie Dike, Esq.

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June 11, 2015 It's like telling children not to touch a plate of cookies. No matter how many times you tell them, scold them, remind them that it will ruin their appetite for dinner, you know there is still a good chance they're doing to do it. The temptation is too great. The same goes for juries and Google, Facebook, Twitter, and the like. No matter how many times you instruct the jury, charge them, educate them, and warn them of the dangers of turning to the internet or social media to conduct their own investigation during trial, you know there is a good chance they're still going to do it. With pretty much every juror donning a smart phone in hand, it is virtually impossible to stop it. Furthermore, it is somewhat understandable. As social media and other internet mediums become an increasingly integral part of everyday life, jurors find it increasingly acceptable to consult many of these sources when making such an important decision. The bottom line is that if you know it's happening, the better question may not be how to stop it, but rather, what will the jurors find?

When Jurors Search

It's called misconduct because, technically, it is. It is a violation of the court's stern instruction to the jurors to base their decision solely on the evidence that is presented to them in the courtroom. However, we know that, despite the instruction, many jurors are still searching, and doing so is not always grounds for a mistrial. Despite repeated and specific warnings from the court in a Nevada criminal trial, a juror, in an effort to assess an expert's opinion, checked out websites that the expert referenced during his testimony. While the court found that the juror had committed misconduct, it refused to set aside the verdict against the defendant. See Zana v. State, 216 P.3d 244 (Nev. 2009). Courts have uncovered many instances in which a juror turned to the internet to influence her decision in a case:

  • Two jurors conducted Google searches on the meaning of "reasonable doubt" during jury deliberations. United States v. Rand, _ F.Supp.2d _ (W.D.N.C. Sep. 6, 2013) (No. 10 CR 00182).
  • Juror used MapQuest to make his own determination as to the distance between two locations mentioned by a witness on the stand. Brown v. State, 620 S.E.2d 394, 397–98 (Ga. Ct. App. 2005).
  • Juror conducted independent internet investigation into the defendant corporation's past profits. Moore v. Am. Family Mut. Ins. Co., 576 F.3d 781, 787 (8th Cir. 2009).

Studies have shown that more so than in prior years, jurors are using Facebook either to conduct outside research about the case or to gather information about trial participants. See Jurors' and Attorneys' Use of Social Media During Voir Dire, Trials, and Deliberations -- A Report to the Judicial Conference Committee on Court Administration and Case Management (May 1, 2014). Simply put, jurors are curious, and they may turn to the sources they are familiar with to get answers.

Know What They Will Find

If you know they are going to look, know what they could find. Google yourself, your staff, your witnesses, and see what pops up. As part of IMS ExpertServices' thorough vetting process, IMS qualifies, vets, and delivers highly qualified expert witnesses at the pre-trial stage, and we want to see that same level of thoroughness pay off for you at trial. For both your expert and lay witnesses, go one step further and scroll through their Facebook profiles, their Tweets, and any other personal blogs or websites. Pretend that you are a curious juror, and see what you can find. Be sure to talk to your witnesses and staff about their social media presence, the public accessibility of their content, and their posting habits. Instruct them to monitor these sources during the course of the trial.

While it is a disheartening thought, there is a possibility for bogus or planted materials. As a Maryland Court of Appeals pointed out, an imposter may create social media pages or posts under the guise of trial participants. Griffin v. State, 419 Md. 343, 19 A.3d 415 (2011). If you don't know what information the jury is relying upon, you have no way to rebut or clarify it. You can search too, so do! Knowing what jurors may find if they do in fact search will put you one step ahead of the game.

Tell us, litigators: have you run into any jurors behaving badly out there? What additional advice or thoughts do you have for trial attorneys battling the case of the curious juror?

This article was originally published in BullsEye, a newsletter distributed by IMS ExpertServices™. IMS Expert Services is the premier expert witness search firm in the legal industry, focused exclusively on providing custom expert witness searches to attorneys. To read this and other legal industry BullsEye publications, please visit IMS Expert Services' recent articles. For your next expert witness search, call us at 877-838-8464 or visit our website.

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Posted June 9, 2015

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