Episode 14: Does the jury’s use of technology to enhance visual acuity result in experimentation and juror misconduct?

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Episode 14 of The SM JUROR Podcast on Juror Misconduct Law: Does the jury’s use of technology to enhance visual acuity result in experimentation and juror misconduct?

State v. Dulin, No. 1 CA-CR 18-0044, 2018 WL 6217154 (Ariz. Ct. App. Nov. 29, 2018).

Summary: Nilgün Aykent Zahour analyzes the juror misconduct issues in State v. Dulin, No. 1 CA-CR 18-0044, 2018 WL 6217154 (Ariz. Ct. App. Nov. 29, 2018).  The issue we’re going to discuss is whether the jury’s use of a laptop to “zoom in” on surveillance photos amounts to experimentation and juror misconduct.


Hi, this is Nilgün Zahour from SM JUROR and welcome to The SM JUROR Podcast on Juror Misconduct Law where our motto is, “Don’t let juror misconduct taint your verdict.”  We analyze current state and federal juror misconduct cases and provide attorneys with the strategies to identify, preserve and advance juror misconduct issues at trial and on appeal.

And, today in Episode 14, we’re going to be looking at the case of State v. Dulin, which is out of Arizona.  The issue we’re going to discuss is whether the jury’s use of a laptop to “zoom in” on surveillance photos amounts to experimentation and juror misconduct. Glad you’re listening because the only evidence you want the jury to hear is in the courtroom. Now let’s take a look at State v. Dulin.

Hi everyone. This is Nilgün Zahour from SM JUROR and in Episode 14 of The SM JUROR Podcast on Juror Misconduct Law, we’re going to be looking at the juror misconduct issues in the case of State v. Dulin which is out of Arizona.

This case was decided yesterday on November 29, 2018, and I’ll be sure to put the full citation of the case in our episode notes.  And, if you can, please leave us a review because we want your feedback and want to provide value to our listeners.  And of course, if you were involved in a trial where juror misconduct was an issue, please contact us so we can interview you for our podcast.

Today, we’re going to talk about whether the jury’s use of a laptop to “zoom in” on still photos amounted to experimentation and juror misconduct.  Here, the defendant was convicted of shoplifting with two or more predicate offenses.

The facts are pretty straightforward.  The defendant walked into Walmart, took a laptop from the display case and left the store.  The next day, the Walmart loss prevention officer reviewed the security footage and recognized the defendant because he was a regular Walmart shopper.  He reported the theft to the local police who also recognized the defendant on the surveillance video.  Of significance was that the assigned officer had known the defendant for over thirty years.

During the trial, the officers testified and one officer narrated the surveillance video of the defendant stealing the laptop and also presented still photos which were taken from the surveillance video.  There was other evidence presented relative to the predicate crimes, but that’s not important for our purposes.

Now the opinion doesn’t give us the exact facts, but the defendant appealed his conviction arguing that the jury committed juror misconduct by using a laptop to “zoom in” on one of the still photos from the surveillance tape.  He argued that this was some sort of inappropriate experimentation which warranted that his conviction be reversed.

So let’s take this apart.

First, let’s look at what was admitted into evidence.  That was the surveillance tape of the defendant shoplifting the laptop from Walmart and still photos which were taken from the surveillance tape.  Now, although these pieces of evidence were admitted into evidence, we’re not exactly sure what went back to the jury room, but we can surmise that a laptop for playing back the surveillance video and the still photos were sent back.  I say this because that’s the basis of the defendant’s issue with so-called experimentation – that they used a laptop to “zoom in” on one of the still photos and the opinion refers to what the record reflects that the jury did, so I’m forming an educated guess that a laptop and the photos were in the jury room during deliberations.

This, or course, brings me to the issue of how it was discovered what the jury did in the jury room and the opinion doesn’t tell us that either.  What we do know, however, is that defense counsel participated in the trial and reviewed the record for any appealable errors.  Finding none, he requested that the appellate court review the case for any fundamental error.  The appellate court did so and found no error, so the conviction was affirmed.

Now, if we get back to the issue of what’s occurring in the jury room during deliberations, remember that jury members cannot testify about what occurred, unless there is evidence of the presence of the jury’s exposure to extraneous evidence.

So here, we need to determine whether the jury’s alleged use of the laptop to “zoom in” on a still photo amounted to evidence which was extraneous.  In other words, was there any kind of new evidence that resulted from the jury magnifying the still photo?

And the answer is no.  The jury is allowed to scrutinize the evidence that was presented to them.  Now the wording of the opinion says that “a jury may experiment with evidence so long as those experiments do not go beyond the lines of evidence introduced into court and thus constitute the introduction of new evidence in the jury room.”

The opinion further elaborates to state that “jurors using technology to enhance visual acuity is not experimentation, unless there is some indication that the technology produced additional evidence.”

So here, however it was done, the record reflected that the jury used the laptop to “zoom in” on the still photos, that were taken from the surveillance tape, and already admitted into evidence.  The record demonstrated that there was no evidence supporting the argument that the jury experimented with the photo to distort it or create new evidence, so the Court of Appeals found that there was no juror misconduct and the conviction was affirmed.

Now I also want to point out that since there was no juror misconduct, there would be no discussion of whether the defendant was prejudiced by what the jury did in the jury room.  This is important because you cannot get to the prejudice issue if juror misconduct was not found.

Also remember that there was ample evidence to support the conviction here.  There was the surveillance tape and still photos, but there was also testimony from two officers who recognized the defendant and were able to identify him in the surveillance video and the still photos.

So if the circumstances were a little bit different and there was a finding of juror misconduct, then the issue of whether the defendant was prejudiced would be addressed.  Remember to look at all the evidence because a conviction will not be reversed if there was ample evidence in the record supporting the conviction.

And that’s it for our analysis of the juror misconduct issues in this case.  If you like what you hear and want more, please subscribe to our podcast and leave us a review.

 And also check out our latest CLE on juror misconduct called: “Facebook & Today’s Juror: 2017’s 10 Biggest Juror Misconduct Events,” and use the code “podcast25”, that’s podcast two-five, for $25 off our regular CLE price exclusively for our podcast listeners.  This CLE is accredited and/or approved for 1.5 general credit hours in 30 states and I’ll put the link to the registration page in our episode notes.

That’s it for today. This is Nilgün Zahour from SM JUROR, and remember, don’t let juror misconduct taint your verdict.  See you next time.


Remember to use the coupon code “podcast25”, exclusively for our podcast listeners, for $25 off our CLE entitled, “Facebook & Today’s Juror: 2017’s 10 Biggest Juror Misconduct Events” which has been accredited & approved for 1.5 general CLE credit hours in 30 states. Click here to register for our CLE.

Because the ONLY evidence you want the jury to consider … is in the courtroom.


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