Episode 8: Does the jury’s use of playback tools to enhance video evidence result in juror misconduct?

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Episode 8 of The SM JUROR Podcast on Juror Misconduct Law: Does the jury’s use of playback tools to enhance video evidence result in juror misconduct?

People v. Daniels, No. D074033, 2018 WL 4327873 (Cal. Ct. App. Sept. 11, 2018).

Summary: Nilgün Aykent Zahour analyzes the juror misconduct issues in the case of People v. Daniels, No. D074033, 2018 WL 4327873 (Cal. Ct. App. Sept. 11, 2018).  The issues we’re going to discuss are playback tools the jury uses when video evidence is sent back to the jury room and whether changing the contrast ratio on a TV monitor amounts to new evidence.


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 we’re going to be looking at the case of People v. Daniels, which is out of California. The issues we’re going to discuss are playback tools the jury uses when video evidence is sent back to the jury room and whether the changing of the contrast ratio on a TV monitor amounts to new evidence.  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 People v. Daniels.

Hi everyone. This is Nilgün Zahour from SM JUROR and in today’s podcast, we’re going to be looking at the juror misconduct issues in the case of People v. Daniels, which is out of California.

This case was decided on September 11, 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 discuss tools which are given to the jury to playback video evidence that was admitted at trial.  What am I talking about here?  Well, tools like a laptop, or TV or projector.  Here, the jury saw a DVD surveillance video on an ELMO projection in the courtroom.  They saw the same DVD on a laptop and also on a TV monitor in deliberations.  Did that have any prejudicial impact?  Let’s see.

Here the defendant was found guilty of second degree murder.  At trial, a surveillance video from a liquor store across the street from the shooting was shown to the jury on a DVD through an ELMO machine.  The shooting occurred at night and it was difficult to see the shooter’s face or clothing.  That DVD was admitted into evidence and sent back to the jury to view to view on a laptop.

During deliberations, the jury requested, and was given, a bigger TV monitor to view the DVD.  After a juror changed the contrast ratio on the TV monitor, the jury was able to see additional material on the DVD, including the shooter’s clothing and another person in the car.

Now we’re going to focus on whether those actions of changing the contrast ratio on the TV monitor amounted to juror misconduct, specifically because the jury now saw the shooter’s clothing and another person in the car.  That was the entire basis of Defendant’s motion for mistrial.  He argued that the jury’s change of the contrast ratio amounted to new evidence which was not introduced at trial.  The trial court denied the motion, and the appellate court affirmed, finding that the jury did not engage in juror misconduct.

First, the DVD was admitted into evidence and the jury is allowed to use tools at their disposal to scrutinize that evidence because evidence can be viewed in a slightly different context.  The tool given to the jury to view the DVD was the TV monitor.  Adjusting the contrast on the monitor did not amount to introducing new evidence.

Now, I also want you to note that the opinion does not indicate that the defendant objected to the use of a bigger TV monitor, instead of the laptop, to view the DVD and the opinion also does not indicate whether the defendant inquired as to why a bigger TV monitor was necessary.  Although it is not discussed in this opinion, an argument can be made that he waived the issue by not objecting and preserving the issue on the record.

So, what does all of this this mean?  There are several important points we can take away from this case.

First, changing the contrast ratio on a TV monitor to view admitted evidence is not juror misconduct.  Since it’s not juror misconduct, your motion for mistrial on that basis would be denied.

Second, be mindful of the fact that the jury may ask for a different playback option to view evidence.  Look at the events here. They viewed the evidence in court through a projection from the ELMO machine.  In deliberations, they received a laptop to view the DVD that was admitted into evidence.  This was significantly smaller than what they saw in court.  Then they requested a larger TV monitor and received it. Whether you are for the prosecution or the defense, be prepared for such a request from the jury and view your evidence on something more than a laptop.

Third, when the request is made, make an inquiry on the record for why a larger monitor is needed.  Remember, the issue is whether or not something will prejudice a party.  And perhaps, if you have not done so already, you might want to view the DVD on a larger TV monitor to know what the jury would be seeing before they see it.  The idea here is that you are building the record for any potential issues of juror misconduct and prejudice.

Fourth, and this is really important, remember the basic concepts of juror misconduct law, meaning, was the jury exposed to any extrinsic or extraneous evidence.  Here, the defendant said yes – through the monitor they were able to see the shooter’s clothing and another person in the car and they didn’t see this on the ELMO projection in court.  But the issue here is that the DVD was already admitted into evidence.  And, whatever the DVD showed was admitted evidence.  There wasn’t anything new on it.  The jury was able to see more evidence of the same exact footage in a different way.

Finally, remember the tools that are given to a jury.  These are not dumb people and obviously their request for a larger TV monitor demonstrates that they were trying to figure out something they saw from the DVD when it was played on the laptop.  Maybe it’s analogous to putting on a pair of glasses.  You see the same thing as you did without the glasses, but by putting on the glasses, you see the same things more clearly and in more detail.

There was no juror misconduct in this case.

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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