No Mistrial over Juror's Facebook Connection with Victim's Sister
By Onika K. Williams, Litigation News Contributing Editor – June 7, 2016

There is no misconduct warranting a mistrial when a juror, who is not asked about her Facebook usage or friendships during voir dire, does not disclose that the victim’s relative is among her Facebook friends. Slaybaugh v. State is a case of first impression, and emphasizes the importance of investigating the digital footprint of potential jurors during voir dire.

Facebook Relationship Insufficient for Mistrial
In Slaybaugh, the defendant moved for a mistrial after his conviction for felony rape. The defendant contended that a juror lied about not knowing the victim during voir dire after discovering a Facebook friendship between the juror and the victim’s sister post-conviction. The trial court ordered the juror to be deposed. At her deposition, the juror testified (1) that she had more than 1,000 Facebook friends, (2) that she did not personally know all of her Facebook friends, (3) that most of her connections on Facebook were made for networking purposes as a realtor, (4) that she did not recognize the victim’s name during voir dire, (5) that she did not recognize the victim at trial, and (6) that she did not know the victim. The trial court determined that the juror’s testimony was truthful and denied the defendant’s motion.

Social Networking Relationship Too Attenuated to Constitute Juror Misconduct
On appeal to the Court of Appeals of Indiana, the defendant argued that the trial court's denial of a mistrial was an abuse of discretion. In Indiana, a new trial is granted upon a showing of gross juror misconduct and likely harm to the defendant. Though the appellate court’s decision was complicated by the fact that the voir dire questioning was not transcribed or included in the record on appeal, it found the relationship between the juror and victim’s sister too attenuated to have prejudiced the defendant. The appellate court “[c]onclud[ed] that Slaybaugh failed to show that the juror engaged in misconduct (let alone gross misconduct that likely harmed him) and that his challenge on appeal is nothing more than a request to reweigh the trial court’s credibility determination.” The Indiana Supreme Court affirmed the rulings of the trial and appellate court, adopting and incorporating by reference the Court of Appeals opinion.

Because Indiana courts had not previously addressed juror misconduct based upon a juror’s social networking relationships, the Court of Appeals based its reasoning and analysis on pertinent decisions from Kentucky. In Sluss v. Commonwealth, the Kentucky Supreme Court held that a juror’s Facebook friendship with a family member of a victim, by itself, is arguably not enough evidence to presume juror bias to require a new trial. In McGaha v. Commonwealth, the Kentucky high court held that a presumption does not arise about the nature of a relationship between a juror and a victim’s relative simply from their status as Facebook friends. Sluss and McGaha both state that the relevant inquiry when determining whether a juror knows a person closely tied to a proceeding is to consider the interaction and scope of the relationship.

Preparing for Social Media’s Impact on Litigation
ABA Section of Litigation leaders agree it is important to prepare for social media-related issues that may arise during trial. “Litigators should recognize that most people—including jurors—have a “digital footprint,” and each footprint may provide key information for use at trial. Attorneys would be well-served by exploring this digital information early on in a case and accordance with the applicable ethical rules,” advises Stephen E. Reynolds, Indianapolis, IN, a cochair of the Website Subcommittee of the Section of Litigation’s Products Liability Committee.

“In order to avoid such post-trial issues, trial attorneys should be provided with a list of individuals expected to be on the venire, giving them the opportunity to investigate possible biases ahead of trial and breach the issues during juror voir dire, should any exist,” advises Vadim A. Glozman, Chicago, IL, cochair of the Young Lawyers Subcommittee of the Section’s Criminal Litigation Committee. “This would protect the record—at least as to issues of juror bias—and preclude mistrial motions based solely on counsel’s claims of juror misconduct based on their failure to remember all of their social media connections,” adds Glozman.

“In the jurisdictions that allow attorney-conducted or thorough voir dire, it is arguably malpractice not to inquire about social media and news gathering habits of potential jurors to reasonably insure that potential jurors have not and will not be exposed to influential media, or unfiltered commentary from members of their internet-social circle,” says Darryl A. Goldberg, Chicago, IL, chair of the Trial/Evidence Subcommittee of the Section’s Criminal Litigation Committee. “For example, even though many state and federal district courts have pattern instructions instructing jurors not to research anything related to the case, or seek out information on social media, a stronger and more preemptive instruction would include barring jurors from even accessing social media from the moment they are sworn until deliberations are complete,” explains Goldberg.

Attorneys should consider the importance of investigating the digital footprint of potential jurors during voir dire. “As more and more people embrace social media, information gained through social media is likely to impact future cases,” says Reynolds.

Keywords: juror misconduct, voir dire, venire, social media, Facebook

 
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