Episode 15: Rebutting the presumption of prejudice when jurors do internet research

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Episode 15 of The SM JUROR Podcast on Juror Misconduct Law: Rebutting the presumption of prejudice when jurors do internet research

Baker v. State, 113 N.E.3d 819 (Ind. Ct. App. 2018).

Summary: Nilgün Aykent Zahour & SM JUROR analyze the juror misconduct issues in Baker v. State, 113 N.E.3d 819 (Ind. Ct. App. 2018).  The issues we’re going to discuss are how a juror’s internet research establishes a presumption of prejudice and how the presumption is rebutted through juror testimony and the cumulative nature of the 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 in Episode 15, we’re going to be looking at the case of Baker v. State, which is out of Indiana.

And, today in Episode 15, we’re going to be looking at the case of Baker v. State, which is out of Indiana. The issues we’re going to discuss are how a juror’s internet research establishes a presumption of prejudice and how the presumption is rebutted through juror testimony and the cumulative nature of the 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 Baker v. State.

Hi everyone. This is Nilgün Zahour from SM JUROR and in Episode 15 of The SM JUROR Podcast on Juror Misconduct Law, we’re going to be looking at the juror misconduct issues in the case of Baker v. State, which is out of Indiana.

This case was decided on November 30, 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.

In this case, the defendant had a jury trial which resulted in a DUI conviction.  After the verdict, the judge and the attorneys spoke to the jurors in the jury room and discovered that one juror did internet research on field sobriety tests and watched videos on field sobriety tests and another juror used Google Maps to discover the location of the incident.  The defendant immediately filed a motion for mistrial due to jury taint, which was denied, and so she appealed her conviction.

So, let’s talk about the presumption of prejudice.  In the case of Ramirez v. State, the Indiana Supreme Court held that there are 2 requirements which must be met in order to establish a presumption of prejudice:

(1) that there was extra-judicial contact or communications between jurors and unauthorized persons; and (2) that the contact or communications pertained to a matter before the jury. If the defendant satisfies both prongs, she receives the presumption of prejudice.

Now once that presumption of prejudice is established, the burden of proof then shifts to the other party, or here the State, to rebut that presumption and show that any contact or communication was harmless.  If the State cannot satisfy its burden to rebut the presumption of prejudice, then the defendant is entitled to a new trial.

The trial court found that both prongs of the Ramirez test were satisfied, such that the defendant was entitled to a presumption of prejudice.  If we look at the first prong, that there was extra-judicial contact or communications between jurors and unauthorized persons, we don’t really see that either juror’s conduct fits this prong, as their conduct involved the use of the internet.

A footnote in the opinion stated that the trial court could not find a case that directly established that a juror’s internet searches satisfied the first prong as extra-judicial communications, but relied on a case that found that a juror committed juror misconduct by performing an internet search on the reliability of blood tests.

If we step back to focus on the fact that juror misconduct involves a juror’s exposure to extraneous evidence, we can see how the first prong is satisfied when jurors are doing searches on the internet.

Now as for the second prong of the Ramirez test, whether the juror’s contact or communications pertained to a matter before the jury, we can see that both jurors’ internet searches did so.  This is a DUI case where the defendant was stopped and subjected to various field sobriety tests.  Juror 12 searched the internet for videos on field sobriety tests and watched them and Juror 2 used Google Maps to find the location of the incident where the defendant was stopped.

Both prongs of the Ramirez test are satisfied, so the defendant is entitled to a presumption of prejudice that the internet searches by the two jurors prejudiced her case.  But the analysis doesn’t stop there.  This is a rebuttable presumption, so the burden of proof now shifts to the State to demonstrate that the actions of both Juror 12 and Juror 2 were harmless.  The trial court found that the State did rebut the presumption of prejudice for both jurors.  As such, the defendant’s motion for mistrial was denied. The defendant appealed and the conviction was affirmed on appeal.

Let’s look at how the State rebutted the presumption of prejudice.

As to Juror 12, who did the internet searches on field sobriety tests and watched videos on them, the State called Juror 12 to testify.  Juror 12 testified that her decision to look at online videos of sobriety tests was not a primary decision in making a finding of guilt for the defendant.

Now that’s the only thing about Juror 12’s testimony that the opinion provides, but I want to caution you that just a blanket statement like that wouldn’t be enough.  We can tell from the opinion, however, that Juror 12 was asked questions regarding whether she remained impartial, despite the fact that she watched these online videos of field sobriety tests.

Now let’s talk about an important strategy when trying to rebut a presumption of prejudice, and that is to show that the extraneous evidence – here the online videos and the Google Maps, were cumulative of evidence presented at trial.  And the importance here is that if the extraneous evidence was cumulative, then a juror’s exposure to this extraneous evidence is harmless.

As for Juror 2 who searched Google Maps to determine the location of the incident, the prosecution demonstrated that during the trial the jury saw multiple maps regarding the location of the incident and heard from multiple witnesses about the location.  Therefore, Juror 2’s use of Google Maps to find the location of the incident was cumulative.  I also want to point out that the location of the incident is not at issue, meaning the parties are not arguing about the location.  The location is merely a fact of where the incident occurred.  The Google Map location was cumulative and harmless.

Additionally, on the issue of the field sobriety tests, the prosecution demonstrated that multiple witnesses testified about them and the defendant’s failure of all three tests given.  Again, the use of the field sobriety tests was not at issue.  Juror 12’s viewing of online videos of sobriety tests was cumulative of evidence already heard at trial and as such, was harmless.

Now I want to point out that the acts of Juror 12 and Juror 2 were discovered after the verdict was rendered.  The trial court admonished both jurors in engaging in juror misconduct, but ultimately found that they both engaged in “simple misconduct,” which was harmless, and the Indiana Court of Appeals found no error in that conclusion.

So let’s look at some strategies that were employed here and that you can use if you encounter this type of situation:

First, after the jurors were interviewed, it was discovered that two jurors performed internet research.  In preparing a motion for mistrial based on jury taint, the motion must be supported by evidence which meets the two requirements under Ramirez to establish a presumption of prejudice.  Since we’re talking about internet research here, the motion should establish what the internet research was, and then establish that the internet research pertained to a matter before the jury.

Obviously, if the internet research did not pertain to an issue in the case, then the second requirement is not satisfied.  For instance, if during the trial the location of the incident is established, and the evidence demonstrated that the incident occurred at the corner of a street where a restaurant is located, and the juror decided to look up the restaurant on the internet, that research would not pertain to a matter before the jury and the second requirement would not be satisfied.

Now, If both requirements are met, then the presumption of prejudice is established, and the burden of proof now shifts to the State to show that the conduct was harmless.  So now, the focus from both parties will be on each juror’s conduct: What did they actually do in the internet search? Do they have the internet research or printouts or remember the sites that they went on?  After this is explored, then the issue from both sides is whether the juror can still remain fair and impartial, despite doing the internet research.

Next, the focus from both sides is whether the exposure to extraneous evidence through the internet was actually cumulative of what was heard during the trial.  So, in this regard, examine witness testimony or exhibits which may have addressed matters related to the internet research.

And finally, although this opinion doesn’t address this particular issue, examine all the evidence because if the record demonstrates overwhelming evidence to support the conviction, then arguments suggesting prejudice from the jurors’ internet research become much less persuasive.

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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