Chapter 23 - § 23.6 JUROR USE OF TECHNOLOGY

• Jurisdiction: Colorado

§ 23.6 JUROR USE OF TECHNOLOGY

A growing concern for trial lawyers is the potential for juror misconduct arising from jurors texting, tweeting, blogging, conducting internet research, or otherwise compromising the trial process through the use of ICTs or social media.⁶⁸ In fact, the Colorado Jury Instructions for Civil Trials contain specific admonitions related to juror use of technology and social media during the trial,⁶⁹ and the National Center for State Courts has created a poster for jury rooms admonishing jurors of their responsibilities relative to social media and the internet during the trial.⁷⁰

The primary concerns relate to outside internet research, improper communications, and prejudicial news reports.⁷¹ Colorado courts, for example, have held that internet research by a juror about the drug Paxil, which was a key issue in the case, was grounds for a mistrial.⁷² Other courts have addressed improper social media communications, such as posts about falling asleep during the trial⁷³ or electronic communications between jurors and key witnesses or others.⁷⁴

With the ubiquity of ICTs and wearable technology, counsel must be vigilant for issues that could compromise the trial. Counsel should ask the court to instruct the jury on use of technology during the trial, and should instruct his or her own witnesses not to communicate with jurors in any way. If misconduct is suspected, counsel should immediately bring it to the court's attention so that it may be addressed expeditiously to avoid potentially compromising a verdict.

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Notes:

^[68] 141 Am. Jur. Proof of Facts 3d 463 (originally published in 2014).

^[69] CJI-Civ. 1:1, 1:5 (CLE ed. 2021).

^[70] Nat'l Center for State Courts, "Juror Responsibilities Regarding the Internet and Social Media," available at www.ncsc.org/topics/media/social-media-and-the-courts/social-media/jurors.

^[71] See, e.g., Thaddeus Hoffmeister, "Google, Gadgets, and Guilt: Juror Misconduct in the Digital Age," 83 U. Colo. L. Rev. 409, 436 (2012).

^[72] People v. Wadle, 77 P.3d 764, 770 (Colo. App. 2003), aff'd, 97 P.3d 932 (Colo. 2004).

^[73] United States v. Feng Li, 630 F. App'x 29, 33 (2d Cir. 2015); Segura v. State, No. 05-15-00032-CR, 2015 Tex. App. LEXIS 12425, at *4-6 (Dec. 8, 2015).

^[74] State v. Smith, 418 S.W.3d 38, 47 (Tenn. 2013) (vacating denial of evidentiary hearing regarding juror communication with witness).