Disconnecting the Wired/Wifi’d Juror

Examples of juror misconduct involving Internet Use

• 9 of 12 jurors conduct Internet research about case during trial.

• Jury foreman Googled the defendant’s name.• Jury Googled co-conspirator’s prior record.• Juror research discovers prosecution witness

in protective custody.• Juror looks up MySpace profile of teenage

victim.

Examples of juror misconduct involving Internet Use (Cont.)

• Juror looks up defendant’s prior criminal record.

• Juror looks up defendants’ ages and dates of birth.

• Juror researched Oppositional Defiant Disorder.

• Juror researched effects on blood alcohol of the drug Narcan.

Examples of juror misconduct involving Internet Use (Cont.)

• Juror looked up definition of lividity.• Juror researched whether a particular bullet

could have damaged a bullet-proof vest.• Juror conducted his own Internet research to

determine an alternate cause of death.• Juror used Internet to look up legal definitions

of “attempt,” “distribution” and “possess.”• Juror researched “aggravating” in terrorism

case.

Examples of juror misconduct involving Internet Use (Cont.)

• Juror researched “great bodily harm” in DV case.

• Juror researched “deliberating” in racketeering case.

• Juror researched sentencing ranges in DUI-death case.

• Juror foreman researched state statute setting forth drug violations and penalties.

Examples of juror misconduct involving Internet Use (Cont.)

• Juror posts status on Facebook.• Jurors become Facebook friends.• Juror foreman blogged about murder trial during

the taking of evidence and deliberations.• Jury foreman, who was an attorney, blogged about

on-going case.• British juror in child sex abuse case held a

Facebook poll on defendant’s guilt or innocence.

Examples of juror misconduct involving Internet Use (Cont.)

• Juror “friend-ed” the defendant on MySpace.• Juror sent a “friends request” via Facebook to

on of the witnesses. • Juror received on-line dating match for expert

witness.• Juror posts “It’ll be fun to tell the defendant

they’re guilty” on Facebook.

Juror Motivations

• Always are part of the “Matrix” by wire or Wifi• Displeasure with being “spoon-fed” evidence• Legal, medical and technical terms undefined• Genuinely want to be a fair and decent juror• Anti-government• Treated unfairly with $10 daily compensation

and 27 cents a mile• Seek the forbidden fruit

Juror motivations (continued)

• Judges tell them they are the triers of fact, but they are not treated as a part of THE CLUB

• They misunderstood the preliminary instructions and thought researching general legal terms was OK.

Types of Internet Inquiries

• Media accounts of the specific case• Virtual physical and other factual evidence:

Google Earth, Mapquest, statistics, maps• Expert opinions: Example, cover article in NY

Times Sunday magazine on Shaken Baby Syndrome

• Personal and professional information on parties, lawyers, judges, and witnesses

• The Law: sentencing guidelines, etc.

Social Media Use

• “Friending” parties, lawyers and witnesses• Blogging about trial experiences during trial• Seeking comments from others about those

experiences• Developing celebrity in anticipation of

appearances on the Today Show and a book tour: “I was the last holdout!”

• Tweeting during the trial, gaining an audience

Surveys of Public Sentiments:What should the courts do?

• Take away their phones!• Taking phones is silly- jurors can access Web at

home.• It’s a systemic effort to keep jurors from

learning the ACTUAL truth!

Possible Court Administration-Led improvements

• Increase juror compensation & mileage• Improve juror education and re-do video• Devote more resources to juror comfort and

convenience• Make the juror summons less “busy” and

more user friendly• Have consistent statewide juror information

accessible on state website

Possible Court Administration-Led improvements (Cont.)

• Instruct jurors from the initial summons for jury duty that they are to refrain from any efforts to learn about cases that may be going to trial at the time of their summons. It must be made clear that this includes newspapers, Internet and electronic research, or personal investigation.

Possible Court Administration-Led improvements (Cont.)

• If the venue makes use of a central jury facility, have the jurors reinstructed that they are forbidden from looking up any information about any cases pending before the court, and have them sign statements of understanding that failure to comply with this is a violation of the law and subject to punishment.

Possible Court Administration-Led improvements (Cont.)

• Add voir dire questions that address actual jury Internet use (will they be likely to violate the rule and/or have they already done so?)

• Ask in voir dire whether jurors would abide by judicial instructions not to do Internet research on the case. If a juror acknowledges they could not abide by that instruction, they are a cause to strike. See Example:

Possible Court Administration-Led improvements (Cont.)

• Note the experience of an attorney in a Kansas City trial:

“During voir dire, we asked whether jurors would abide by instructions to not do research on the Internet, and probably six to 10 potential jurors said they could never abide by that.”

Possible Court Administration-Led improvements (Cont.)

• Revise jury instructions with specific language about electronic device usage (iPhones, Blackberrys, and other smart phones), Internet research (Google, Yahoo, Bing, etc.) and social networking applications (such as Facebook, Twitter and MySpace).

• Repeat the Instructions, at the start of the day and at the end of the day, at breaks and recesses. Leave the instructions fresh in the minds of the jurors.

Possible Court Administration-Led improvements (Cont.)

• Have jurors sign declarations that they will not research the case details on the Internet.

• Education of jurors on the importance of hearing a case based only on facts presented in court, reporting any outside research or text messages, and to remind each other in the deliberation room that they are to make decisions based only on what is presented as evidence.

Possible Court Administration-Led improvements (Cont.)

• Encourage jurors to think of the courtroom as a playing field where both sides have agreed to play by a set of prescribed rules. One of those rules is that the party(s) on trial will be judged only by a set of facts that both sides have had an opportunity to examine and challenge.

Possible Court Administration-Led improvements (Cont.)

• Make it clear that violations of these rules are a violation of the law, for which punishment can be imposed. Make it important, not pro forma, and not merely polite.

• Satisfying the jurors’ reasonable “need to know” can gain compliance with the rules.(a) Historically, jurors are told what they can’t do or what they can’t know, without explaining why that is the case. . . .

Possible Court Administration-Led improvements (Cont.)

• Many jurors take the position of “Really?” Alright, if you won’t tell me I’ll find out for myself!” The level of information provided by the judge is usually discretionary, and many judges are beginning to explain the reasons for the rules. For example,1. Why no Internet research? “In court, anyone

who is accused of something deserves the right to face their accuser. . . .

Possible Court Administration-Led improvements (Cont.)

. . . We can’t try people by rumor or innuendo. And we can’t put Wikipedia on the stand and question why they say what they do…”

2. Insurance coverage can’t be considered? “The reason this can’t be considered is that the insurance companies have a right to claim any past expenditures they have made in the case, if the lawsuit results in an award for something they have paid. So it isn’t fair or reasonable to consider insurance coverage.”

Possible Court Administration-Led improvements (Cont.)

(b) Allow questions by the jury. To the extent that they have reasonable and proper questions for witnesses, they are less likely to conduct research on their own if the witness addresses them more completely. Also, they feel more fully engaged in the process, rather than a passive (if not captive) observer.

Judicial action

• Training on social media and juror motivations• Update preliminary instructions and emphasize

importance of fair trials• Remind jurors of your instructions at beginning and

end of each trial day• Consider posting a notice re: social media in the

deliberations room• Answer juror questions during deliberations or give

an explanation if you cannot give them an explicit answer

Consequences for Juror Misconduct

• Process: Inquire of juror under oath (appoint counsel?) as to what happened, with counsel and parties present

• Follow case law regarding mistrials• Juror sanctions: contempt?

FinesWrite paper on fair trials & due processOther

Reconsidering the Paradigm

• Should we allow Internet research during trial if jurors are going to do research anyway?

• Establish a Task Force to evaluate these issues and make recommendations to the Supreme Court

• Develop better jury instructions

Resources

• www.juries.typepad.com• www.thejuryexpert.com• California Jury Instructions• Texas Jury Instructions• http://jurorsbehavingbadly.blogspot.com