Episode 25: Does the jury’s knowledge of publicized videotaped trial proceedings on social media prejudice the defendant?

SM JUROR Podcast 25: State v. Rojas, No. 2 CA-CR 2018-0271, 2019 WL 4051861 (Ariz. Ct. App. Aug. 28, 2019).

State v. Rojas, No. 2 CA-CR 2018-0271, 2019 WL 4051861 (Ariz. Ct. App. Aug. 28, 2019).

Summary: In Episode #25 of the SM JUROR Podcast, Juror Misconduct Law in Review, Attorney Nilgün Aykent Zahour analyzes the juror misconduct issues in State v. Rojas, No. 2 CA-CR 2018-0271, 2019 WL 4051861 (Ariz. Ct. App. Aug. 28, 2019). Issue: Does the jury’s knowledge of publicized videotaped trial proceedings on social media prejudice the defendant? 

Hi everyone!  This is Nilgün Zahour from SM JUROR and in Episode 25 of our podcast, Juror Misconduct Law in Review, we’re going to examine the juror misconduct issues in the case of State v. Rojas, which is out of Arizona.  This case was decided on August 28, 2019 and I’ll be sure to put the full citation of the case in our episode notes. 

Now in today’s episode, we’re going to tackle this issue: Does the jury’s knowledge of publicized videotaped trial proceedings on social media prejudice the defendant?  I have to admit – this is a loaded question, but don’t worry because we’ll break it down.

Here, the defendant moved for a new trial and his motion was granted, so it’s the State that appealed that ruling.  As we analyze this case, we’re going to discuss the trial court’s discretion in handling courtroom issues and ruling on motions for new trial, the abuse of discretion standard of review, the interactions of jurors with others during trial, and the jury’s need for privacy and safety, especially in cases which generate controversy or involve moral outrage. 

Now, this case involved the defendant’s conviction for child molestation. During trial, a courtroom observer, David Morgan, asked the Court for permission to film the trial proceedings from his tablet computer and post it on his social media page.  Now to me, this is an extraordinary request, especially due to the nature of the trial and that the victim was a five-year old girl. The defendant objected to the request, but the Court allowed the video recording, as long as Morgan did not publish images of the jury in which the jurors were identifiable.  Morgan took video of the defendant, Rojas, testifying at trial.

Now at this point, we don’t really know anything about this courtroom observer, David Morgan – only that he wants to take video of the proceedings and post it on his social media page.  The Court’s admonition to prevent him from publicizing identifiable images of the jury protects their safety.  However, if you are faced with this situation, I want you to consider the fact that publicizing video of a trial on social media can increase the risk of the general public, or friends and family members of the jurors, to contact them during trial about the trial.

And that’s exactly what happened here.

Two days later, a juror received a text message from a friend asking her if she was a juror on the Rojas case, which involved something about a daycare and a five-year old child.  The juror confirmed she was a juror on the case and the friend told her there was video of the defendant testifying which was on social media.  The friend said that there was footage of the jury in the jury box, but the video did not show the jurors’ faces.  Although the friend said she didn’t read the article about the case, she said it was “disgusting” and told the juror how to locate the social media post.

Now let’s step back at this point and examine the facts which can potentially lead to prejudicial juror misconduct. First, the video showed the jury in the jury box. The courtroom observer, Morgan, was admonished not to show images of the jury which could make them identifiable. The friend stated that the faces of the jury were not shown, but that does not necessarily equate with whether they could or could not be identified.  That being said, the exact footage posted on social media had to be examined.

Next, a friend texts the juror about the posted video and the juror confirms that she’s on the jury.  This communication alone is also problematic because the juror is ignoring the Court’s instructions not to communicate with anyone about the trial during the trial.

Next, we examine the contents of the text message communication.  The friend voices her opinion that the case is “disgusting”.  Additionally, she gives the juror the link or advises the juror how to find the social media post.  Now there’s several things going on here.  Could the friend’s opinion that the case was disgusting affect the juror in any way when the juror has to render a verdict?  Is the juror going to be tempted to look at the social media post during trial?  Will the juror tell other jurors about what her friend told her about the social media post?  Will the juror tell the Court about it?  Can this juror still remain fair and impartial? 

The next day, the juror told the Court about the friend’s text messages.  The Court questioned the juror about the incident and the juror denied looking at the social media post, but she did admit to giving the address of the post to other jurors. The opinion then tells us that the other jurors were not happy about the video’s existence, especially since they were assured by the Court that the jury would not be shown. They were also worried about their privacy because they didn’t want other people to know that they were on this jury.

At that point, it was necessary for the trial court to view the social media post of the trial video.  The trial court concluded that at least three jurors were identifiable, including two jurors whose faces were also shown. The defendant moved for a mistrial, and then the trial court individually questioned each juror about what they heard about the video.  Ultimately, it was determined that the video had “sparked a conversation” among the jurors.

During questioning, every juror stated that what they heard would not affect how they decided the case, meaning that they could remain fair and impartial.  There were, however, privacy concerns, especially since the case involved child molestation – the fear being that the public may want to convict the defendant and if the jury decided otherwise, the public would not be happy about it and knew who the jury members were.

So let’s step back for a minute.  First, the trial court needs to deal with the juror who had the text message exchange with her friend.  The trial court decided to excuse that juror.  The juror ignored the trial court’s admonitions not to speak to anyone about the case.  Additionally, the juror shared the link or address of the post with other jurors and the juror was exposed to her friend’s opinion about the trial – that it was disgusting. 

The trial court denied the defendant’s motion for mistrial because there was no evidence that the other jurors heard the friend’s characterization of the case as disgusting and they also indicated that they could be fair and impartial.  The trial resumed the next day and the defendant was convicted of one count of sexual conduct with a minor under twelve years of age.

Now, procedurally, the defendant moved for a mistrial and after hearing argument on the motion, the trial court granted it.  The defendant was going to get a new trial.  This was a big win.

So let’s examine the trial court’s ruling to determine whether the granting of a new trial was an abuse of discretion.  As we tackle this issue, we’re going to examine whether there was any jury misconduct in that the jury was somehow exposed to evidence which may have affected their verdict.

In ruling as it did, the trial court found that the video from the courtroom observer, David Morgan, violated Arizona Supreme Court Rule 122, which addresses the use of cameras in the courtroom and how they must be placed to avoid showing jurors in any manner.

Think about this – if you’ve ever watched shows like Dateline, 20/20 or 60 Minutes where the story depicts some sort of crime that ultimately leads to a trial, footage of the trial usually shows attorneys making their arguments, excerpts of witness testimony, the judge or the parties or family members of the parties.  You don’t see any footage of the jury at all.  That’s because court rules, like Arizona Supreme Court Rule 122, are intended to protect the jurors from possible intimidation or reprisals for any verdicts they may reach.  But these types of rules can also protect the integrity of the jury system, such that litigants can claim that a violation of the rule prejudiced their case.

Now on a side note, this is different than situations in these news related shows about a trial where jurors are interviewed on camera. These jurors willingly express their opinions about the evidence and these interviews take place after a verdict has been reached. It’s all voluntary.

Now getting back to the trial court’s reasoning, we see first that Arizona Rule 122 has been violated.  Next, the juror who reported the video violated the admonition by the court not to speak to anyone about the case, including accepting emails or text messages. That juror did not end the exposure to media coverage about the case, but instead, spread the information to the other jurors, and that sparked conversations among the other jurors, which also violated the court’s admonitions.

And finally, the trial court, upon further reflection, admitted that it did not consider the risk of prejudice from these violations when it denied the defendant’s earlier motion for mistrial when it only excused the one juror. The trial court found that under these circumstances, it could not determine beyond a reasonable doubt that the extraneous information the jury heard did not taint the verdict.  As a result, the defendant’s motion for new trial was granted and the State appealed.

Now let’s step back and look at what’s happened here.  The defendant was convicted of sexual conduct with a minor under the age of twelve, and now, that conviction is overturned because he gets a new trial.  Is this even fair?  I mean the State didn’t do anything wrong here. It was the independent courtroom observer who shot the video, with the trial court’s permission, and posted it on social media.  Why should the State suffer?  Or, what about the family of the minor victim who has to endure another painful trial – is that fair?  And by the way, didn’t all the jurors testify that they could still remain fair and impartial, despite hearing information about this video?

So the issue becomes – Did the trial court abuse its discretion when it granted defendant’s motion for new trial?

As we examine a trial court’s wide discretion on whether to grant a new trial, remember that the trial court is intimately connected to the trial and has the opportunity to make credibility determinations about juror testimony – here, meaning when each juror testified that they could remain fair and impartial.  The opinion tells us that the appellate court will not disturb the trial court’s “order granting a new trial unless the probative force of the evidence clearly demonstrates that the trial court’s action is wrong and unjust and therefore unreasonable and a manifest abuse of discretion.”

When the jury receives extraneous information related to a case, the information creates a presumption of prejudice and now the burden shifts to the State to show, beyond a reasonable doubt, that the extraneous information did not taint the verdict.  In deciding whether the extraneous information tainted a verdict, the trial court may consider the trial context. The opinion tells us trial context may include:

“whether the material was actually received, and if so, how; the length of time it was available to the jury; the extent to which the jurors discussed and considered it; whether the material was introduced before a verdict was reached, and if so at what point in the deliberations; and any other matters which may bear on the issue of the reasonable possibility of whether the extrinsic material affected the verdict.”

Now the State did not dispute that the jury received any extraneous information related to the case.  Their dispute was that the information that the jury received was not evidence, therefore, there were no grounds to grant a new trial. 

Now in terms of strategy, just remember that the burden of proof has shifted to the State to prove beyond a reasonable doubt that the jury’s exposure to extraneous information did not taint the verdict. That is the focus. In this case, however, the State chose to attack whether the requirements for granting a new trial were met. That focus is misplaced because the presumption has already been created, meaning the jury has already been exposed to some extrinsic information which may taint the verdict. 

So now, the issue becomes – Did the jury’s receipt of extraneous information, that they were recognizable as jurors from the social media video post, amount to extraneous evidence in determining the defendant’s guilt or innocence?

Consider this. The social media video post was footage of the defendant’s trial testimony. There is nothing new here. The jury was present and heard the defendant’s testimony live. There is no new evidence in that context at all. But the analysis does not stop there.  What the jury heard was that certain jurors were identifiable from that social media post and this gave rise to privacy concerns and fears of repercussions from the public if they rendered a verdict that was not acceptable to the public. 

Now I want to stop right here and point out that that is exactly what the testimony was from some jurors when the trial court questioned them.  This is evidence in the record.  It is not a last-ditch creative argument that was made by the defendant. The evidence in the record showed that the information the jury received was “of a kind that jurors may consider in reaching their verdicts, particularly in a case with potential to generate controversy or moral outrage.”  As such, this extraneous information provides a basis for a new trial.

In a nutshell, the information the jury received, that the social media video post contained footage making the jury identifiable, had the potential to influence the jurors’ decisions on the issue of guilt or innocence. That’s the way you want to analyze the issue in terms of trial context.

So procedurally, we can now see that the video footage, taken from the tablet computer, violated Arizona Supreme Court Rule 122 because jurors were shown in the video.  Jurors and litigants are afforded protection by this rule which is intended to protect the integrity of the jury system. The jury’s exposure to the extraneous information that some jurors were identifiable in the social media video post, when taken in the trial context, related to the trial and sparked conversations among them, which were also in violation of the trial court’s admonitions.  Statements from jurors also revealed their perception that the video increased the risk that they may suffer adverse consequences if they found the defendant not guilty. The trial court assesses the credibility of the jurors and found that even though each juror said that they could be fair and impartial despite their knowledge of the video, their testimony about their privacy concerns and fears demonstrated otherwise. 

A presumption of prejudice was created when the jurors were exposed to the information about the social media post. The burden of proof then shifted to the State to prove, beyond a reasonable doubt, that the jury’s exposure to this extraneous information did not taint the verdict.  The State did not carry its burden.  As such, the defendant was entitled to a new trial, even though the State was not at fault for the jury’s exposure to the extraneous information.

Given the facts in the record, including the jury testimony and the trial court’s examination of the social media video post, the trial court did not abuse its discretion in granting the defendant’s motion for new trial.

And that’s it for today’s 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” for $25 off our regular CLE price exclusively for our podcast listeners.  This CLE is accredited/approved for 1.5 general credit hours in multiple 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.

Don’t let juror misconduct taint your verdict…