Juror Behavior in the Information AgeBy Ken Strutin, Published on December 26, 2010
The virtue of juries is that they represent a cross-section of the community; however, the majority of that community is likely to use the Internet and participate in social media.1 This new form of communication and information sharing becomes especially important as jurors try to stay connected to work and home while performing their civic duty. Even the courts have begun to expedite the jury selection process through web-based applications.2 But the main concern for the legal system is the power of individual jurors to virtualize a trial by going online.
While the lure of tweeting or doing a Google search or updating a Facebook profile seems all but irresistible, these upheavals are reshaping the social dimensions of the trial and breaking down the barriers that channel the flow of information within the courtroom.3 Online misbehavior by jurors can be reduced to four principle areas: (1) publishing or distributing information about a trial, e.g., tweeting or posting updates on a social media site;4 (2) uncovering information about the case by searching the Internet, entering social networking sites or visiting virtual crime scenes;5 (3) contacting parties, witnesses, lawyers or judges via social networking for example;6 and (4) discussing or deliberating the merits of the litigation prematurely or inviting outside opinions.7
Judges and court administrators are being tasked with responding to this technological revolution in jury behavior. They have been assigned expanded roles in jury selection and policing misconduct before, during and after trial.8 Moreover, the role of attorneys in investigating potential jurors through the Internet, social media and online databases is evolving from a strategy to a duty.9 The revolutions in technology, especially social media, invite the question of how litigants can hope to find a jury of impartial strangers in a world where everyone is connected?
This article collects recent and notable examples of juror online misbehavior and highlights scholarship and practice resources concerning its implications for voir dire, trial management and the administration of justice.
As Morris Case Shows, Social Networking Poses Web of Trouble for Trials, St. Petersberg Times, Oct. 29, 2010
"The trial had not concluded when the foreman updated her Facebook page calling testimony 'boring, boring, boring.' After the verdict, a fellow juror posted a comment on tampabay.com accusing the foreman of having outside information on the case. Those messages are now evidence in the defense's pursuit of a new trial. The foreman's Facebook records are under subpoena. And the other juror was put on a witness stand Thursday to explain his comment."
Defense Attorney Argues Blog Influenced Verdict for Convicted 'Suitcase Killer' Melanie Mcguire, NJ.com, Oct. 28, 2010
"Can a jury's exposure to material on the internet regarding a trial be grounds for tossing out a verdict? . . . . The defense attorney in the case 'cited two incidents that he said indicated jurors may have been exposed to blog posts at the website operated by Court TV, which televised the seven-week trial.'"
Defense in Sacramento Assault Case Subpoenas Juror's Facebook Postings, Sacramento Bee, Nov. 18, 2010
"A team of Sacramento lawyers is trying to haul Facebook into court over a stream of social network updates posted by a juror about the trial he helped decide. The attorneys who represent five men convicted in a vicious gang beating say the juror may have come under outside influences through his postings."
Florida Bans Jurors From Tweeting, Blogging, CNet News, Oct. 29, 2010
"New jury instructions adopted by the Supreme Court of Florida, which judges will pass along to jurors, instruct them not to discuss the case through 'electronic communication, such as a blog, Twitter, e-mail, text message, or any other means.'"
Judge to Juror Stop Tweeting About Trial, Seattle Post-Intelligencer, Nov. 17, 2010
"What do you call someone who tweets that they're on the jury for a murder trial? Offered more generically Wednesday, that was King County Superior Court Judge Jeffrey Ramsdell's query – 'Are they called twits?' – after he was informed that a juror for a first-degree murder trial had used Twitter to publicize his participation."
Judges Are Resigned to Jurors Researching Their Trials Online, Guardian (UK), Oct. 4, 2010
"Judges are 'giving up' trying to stop juries using Google, Facebook and Twitter to access potentially false and prejudicial information about defendants, Sir Ken Macdonald, the former director of public prosecutions, has warned."
Judge Orders Davie Officer Convicted of Rape Released on Bond, Orlando Sentinel, Dec. 7, 2010
"Broward Circuit Judge Stanton Kaplan also granted the defense attorney's request to question the six-member jury next week about whether any of them downloaded information about 'rape trauma syndrome' from the Internet and brought it to the jury room during deliberations. After the verdict was read Thursday, a courtroom clerk checked the jury room and found printouts about sexual assault and 'rape trauma syndrome' downloaded from the website Wikipedia. The printouts were not part of the evidence presented at trial."
Jurors Banned From Twittering About Oracle-SAP Trial, PC World, Nov. 1, 2010
"Jury selection for Oracle's corporate theft lawsuit against SAP got under way Monday morning in a California courtroom, where potential jurors were warned they would have to refrain from posting on Facebook or Twitter about the case if they are selected to take part in the trial."
Juror's Blog Chronicle Stirs an Age-Old Question, N.Y. Times, Oct. 17, 2010
"Bruce Slutsky began chronicling his jury duty experience in Queens with a blog post on Sept. 16, the first day he had to report. He wrote about the jury room and disclosed that he was called for a civil case. . . . But a law professor in Texas researching juror behavior was alarmed when he stumbled upon Mr. Slutsky's blog, at www.bruceslutsky.com. The professor, John Clark of the University of Texas at Tyler, then notified the court."
Jurors Could Face Prison For Tweeting During, Computer Act!ve, Nov. 25, 2010
"Jurors who use social-networking sites and the internet during a trial could face up to two years in jail, the UK's top judge has warned."
Juror Ordered to Write Essay About Sixth Amendment for Posting Facebook Posting, Daily Tribune, Sept. 2, 2010
"A former Macomb County juror was ordered by a judge this morning to write an essay about the Sixth Amendment and pay a $250 fine for posting a Facebook comment about the case."
Kendrick Morris' Sentencing Stalled Due to Juror's Facebook Comments, ABC Action News (Tampa, Fl), Dec. 2, 2010
"Defense attorney's allege Richter [juror] was active on social media while she acted as the jury foreman during the high-profile rape trial. Morris was convicted in early October of beating and raping a teenager at the Bloomingdale Library back in 2008. . . . Thursday Judge Chet Tharpe said Richter's Facebook records have been subpoenaed, but asked Richter to sign a notarized release to speed-up the process. She signed the documents in court."
Misdeed Results In Mistrial, Morning Journal (Ohio), Oct. 19, 2010
"A mistrial was declared in the rape trial of Richard Boone because a juror looked up the suspect's criminal background on the court docket from their home computer."
Potential Juror Is Dismissed in Atlantic City Voter-Fraud Trial After Sending Facebook 'Friend Request' to Defendant, NJ.com, Nov. 5, 2010
"A potential juror was removed from the pool for a voter-fraud trial involving Councilman Marty Small and 11 others after trying to 'friend request' a defendant on Facebook, according to a report by the PressofAtlanticCity.com."
Question of Juror Misconduct Raised in Murder Trial, Wave 3 (KY), April 20, 2010
"The murder trial is over, but a juror in one Louisville case has been ordered back to court to face a judge. It comes after the juror allegedly watched a TV crime show about the case last week while the trial was still ongoing. . . . As sentencing was getting ready to begin on April 19, two members of the jury notified the court that another juror admitted she went to the video website YouTube during the trial and looked up part of the episode that focused on the Louisville case. "
As Jurors Go Online, U.S. Trials Go Off Track, Reuters, December 8, 2010
"Reuters Legal, using data from the Westlaw online research service, a Thomson Reuters business, compiled a tally of reported decisions in which judges granted a new trial, denied a request for a new trial, or overturned a verdict, in whole or in part, because of juror actions related to the Internet. The data show that since 1999, at least 90 verdicts have been the subject of challenges because of alleged Internet-related juror misconduct. More than half of the cases occurred in the last two years."
Can Social Media Be Banned from Playing a Role in Our Judicial System?, ABA Litigation News, Spring 2010
"Within the past few years, trials throughout the country have been affected by juror use of technology to research and communicate via the Internet, often affecting the rights of litigants to have their cases decided only on admitted evidence, and thus allowing the deliberative process to go beyond its authorized limits. In addition to conducting Internet research, jurors now blog, tweet, and post to Facebook and MySpace about their trials. Indeed, this conduct can compromise the integrity of the jury process and has recently led to the exclusion of jurors, imposition of fines, and mistrials."
Facebooking in Court: Coping With Socially Networked Jurors, Law.com, Oct. 11, 2010
"This is the new courtroom reality, one that offers courts less control over what information flows in and out of the jury box. The problem is that, over the centuries, our legal system developed rules designed to ensure that the facts presented to a jury are scrutinized and challenged by both sides. Jurors were asked to hear all the evidence, refrain from sharing opinions and ultimately deliberate in secret. But modern, socially networked jurors accustomed to accessing and sharing information are colliding with this fishbowl experience and disrupting trials in ways few know how to address."
Jury Deliberations in the Digital Age, N.Y.L.J., May 19, 2009
"Sharing the minutest details of our lives through mobile telecommunications has become second nature in the Information Age. And it has posed new challenges to the administration of the jury trial, forcing a shift in the scrutiny of jury behavior from the visible world to the digital. The indiscriminate use of blogs, tweets, and text messages is assailing the sanctity of deliberations and threatening the constitutional rights of criminal defendants to a fair trial. As courts attempt to come to terms with technologically empowered jurors, new approaches and assumptions about the jury trial will be needed.
In a spate of recent cases, the online behavior of sitting jurors has prompted defendants to challenge the fairness of verdicts in criminal and civil cases."
Online and Wired for Justice: Why Jurors Turn to the Internet (the "Google Mistrial"), Jury Expert, 21(6), 14 (2009)
"In short, social media is a fact of life. If the current patterns hold true, we will see increasing numbers of jurors for whom social networking is so habitual and life-integrated, they will be hard-pressed to see the justification for abstaining from 'updating their status' during trial. Really. If a burglar can't resist checking his Facebook status while in the high-adrenaline process of burglarizing your home, what's to stop a juror during courtroom tedium?"
Post-Trial Jury Interviews in the Internet Age, N.Y.L.J., April 13, 2010
"[T]he internet, computers, blogs, and encyclopedic information speedily available to jurors in the digital age may have changed the playing field and made the effort to misbehave little more than the touch of a button. Stronger juror admonitions probably are needed. Perhaps, too, before jurors are discharged they routinely should be made to answer probing questions about potential misconduct (not termed as such) either orally in open court or via a simple, brief written questionnaire drafted by pattern jury instruction committees. These answers will give some clues as to whether further juror access and post-trial proceedings might be warranted. More importantly, they may uncover a beehive of misconduct of which the courts are unaware."
Social Media and Jurors, Md. B.J., Nov./Dec. 2010, at 44
"The problems presented by jurors using social media and the internet continue to arise with great frequency and courts and lawyers will need to carefully evaluate how to react in a way that will continue to ensure fair trials based only on the evidence presented in the courtroom but also recognizes that we will not be returning to an era when all phones were land line, home computers did not exist, and where the principal vehicle for jurors to acquire bias was the daily newspaper. We will also not revert to the day when a juror had to go out of his way to commit juror misconduct by taking a special trip to the reference section of the local library or detouring on the way home to visit the scene of a crime or accident. The bench and bar must recognize that jurors with electronic devices can now instantaneously obtain a wealth of information--or misinformation, and are able to communicate with virtually anyone on earth with a few strokes on the keypad of a cell phone, I-Pad or laptop. In a second or two, they can access a wealth of internet sites on any subject or visit any intersection or address mentioned in the case on Google Earth or Google Maps."
Why Facebook, Twitter and Jurors Don't Mix, Daily Finance, Sept. 12, 2010
"Lawyers and courts are starting to become more tech-savvy. Some judges have taken the drastic step of confiscating smartphones, which can create problems for lawyers who need the devices for their livelihoods, according to Chris Davey, spokesman for the Supreme Court of Ohio, who co-chairs the Conference of Court Public Information Officers. A recent survey from the group found that about 40% of responding judges reported they use social media profile sites, mostly Facebook, almost identical to the percentage of the adult U.S. population using these sites. About 9.8% of judges reported witnessing jurors using social media profile sites, microblogging sites, or smartphones, tablets or notebooks in the courtroom."
Wired Juror, Unplugged, Trial, Nov. 2010, at 40
"Many jurors under 40 are used to keeping their electronic devices close at hand and ignoring any authority figure who attempts to impose prohibitions on their access to the Internet. The threat of sanctions has not significantly improved compliance. But addiction to Internet access is not limited to young jurors. Research demonstrates that noncompliance with restrictions on Internet access is a potential problem across almost all age groups. To get 'wired' jurors to cooperate, we need to look at not only how jury instructions are framed but also how other aspects of the trial process should be adjusted."
You, the Jury, and the Internet, The Brief (ABA), Winter 2010
"The increasingly prominent role the Internet plays in American society, highlighted in the sidebar on page 17, poses a potential threat to the integrity of jury trials from the influence of outside information, both before and during trials. This results from juror information searches, from juror contact with litigant advocacy on the World Wide Web, and from jurors themselves blogging and/or posting comments concerning their experiences as potential or actual jurors. On the other hand, the Internet also offers great potential for attorneys when they are selecting juries. Attorneys can access the expanding footprints of jurors on the Internet resulting from public records; membership in social, political, and other organizations or causes with a presence on the Internet; membership in social networking Web sites; and the Internet postings and comments of potential jurors themselves. This article addresses both the danger of easy access to outside information for jurors and the beneficial potential for gathering information about potential jurors by lawyers. It also offers a range of recommendations for minimizing the pitfalls and maximizing the benefits of the Internet in the jury context."
Juror Misconduct in the 21st Century: The Prevalence of the Internet and Its Effect on the American Courtrooms, 30 Loy. L.A. Ent. L. Rev. 301 (2009-2010)
"This Comment describes the effect of instantaneous accessibility via the Internet on jurors in criminal trials. Part II provides a background on juror misconduct and the standards courts use to determine when a mistrial is warranted. Part III discusses the use of technology as a more modern form of juror misconduct and suggests the proper standard to use in determining when a new trial should be granted as a result of Internet-related misconduct. Finally, Part IV suggests potential solutions to this modern phenomenon in order to at least reduce the amount of juror misconduct resulting from technological advancement."
Jurors in the Digital Age (SSRN 2010)
"The article begins, in Part I, by discussing the influence of the Digital Age on juror: (1) research; (2) communications; and (3) privacy. In Part II, the article analyzes ways in which to limit the negative impact of new technology on these three areas. While no single solution or panacea exists for these problems, this article focuses on several reform measures that could address and possibly reduce the detrimental effects of the Digital Age on jurors. The three proposed remedies are as follows: (1) improving juror instructions; (2) allowing jurors to ask questions; and (3) disclosing juror information to the opposing party. In Part III, the article examines what might occur if the aforementioned remedies are not implemented or prove ineffective. Specifically, the article suggests that the courts may increase juror penalties and limit access to jurors. As part of the research for this article, this author conducted the first-ever survey ('Jury Survey') on jury service in the Digital Age. The Jury Survey Questions went to federal judges, prosecutors, and public defenders. The purpose of the Jury Survey was twofold: (1) to learn how the reform proposals suggested by this article are viewed by those who work with the legal system on a daily basis; and (2) to learn about other possible reform measures."
Jury 2.0 (SSRN 2010 Hastings Law Journal, Forthcoming)
"The modern conception of the jury as passive and uninformed replaced a more active body envisaged at common law and by the Framers. To earlier legal thinkers, impartiality meant a lack of familial or financial interest in the outcome of the case, not ignorance of the facts. This article argues that we need to rethink the jury's role for the 21st century and restore some of the jury's active engagement in the process of fact-finding. The jury that may ultimately emerge – Jury 2.0 – may share some characteristics with its more active forbears."
Center for Jury Studies (NCSC)
"Most Americans are more likely to experience the American jury justice system as a juror than as any other type of participant in the legal system. The Center for Jury Studies is dedicated to facilitating the ability of these citizens to fulfill their role within the justice system and enhancing their confidence and satisfaction with jury service by helping judges and court staff improve jury management."
New Media and the Courts: The Current Status and a Look at the Future (CCPIO 2010)
"From Twitter to Facebook to YouTube and Wikipedia, new Web-based digital media is transforming how citizens process information, and courts are beginning to examine the impact on a wide variety of their core functions. The Conference of Court Public Information Officers (CCPIO) undertook a yearlong, collaborative national research project to systematically examine this phenomenon and analyze its potential effects on the judiciary.
The CCPIO New Media Project has five primary objectives:(1) clearly define the current technology, (2) systematically examine the ways courts use the technology, (3) empirically measure the perceptions of judges and top court administrators toward the technology, (4) collect and analyze the literature on public perceptions of the judiciary and court public outreach programs and (5) offer a framework and analysis for judges and court administrators to use for making decisions about the appropriate use of new media. Among the technologies examined are social media profile sites; smart phones, tablets and notebooks; news categorizing, sharing and syndication technologies; and visual media sharing sites."
Prejudicial Effect of Juror Misconduct Arising from Internet Usage, 48 A.L.R.6th 135
"This annotation collects and discusses all of the cases which have considered the prejudicial effect of juror misconduct arising from Internet usage."
CURRENT DEVELOPMENT RESOURCES
Jur-E Bulletin (NCSC)
"[A] weekly electronic newsletter published by the Center for Jury Studies and the National Center for State Courts' Knowledge and Information Services Division and Jury Community of Practice. It contains information on the weekly happenings in the jury world, including media coverage, prominent court decisions, and important developments on all things jury."
Juries Blog (edited by Prof. Thaddeus Hoffmeister, University of Dayton School of Law)
"This blog discusses, examines and analyzes juries. This blog, geared towards criminal juries, does not focus on specific verdicts but rather interesting and new developments in the world of juries such as juryreform."
Jury Expert (ASTC)
Published bimonthly by the American Society of Trial Consultants, it contains practical and informative articles from experts and academics on diverse aspects of jury behavior and trial practice.
1 See generally Adults on Social Network Sites, 2005-2009 (Pew Internet & American Life Project Oct. 8, 2009)("79% of American adults used the internet in 2009, up from 67% in Feb. 2005" and "46% of online American adults 18 and older use a social networking site like MySpace, Facebook or LinkedIn, up from 8% in February 2005").
2 See, e.g., National eJuror Program (U.S. Courts)("The national eJuror Program gives potential jurors the option of responding to their jury qualification questionnaire or summons online. Jurors choosing to complete these forms electronically won't have to mail them. They also may update personal information, check when they need to report for jury service, submit a request for an excuse or deferral, and select an alternate time to serve.")
3 See generally As Jurors Turn to Web, Mistrials Are Popping Up, N.Y. Times, March 17, 2009 ("It might be called a Google mistrial. The use of BlackBerrys and iPhones by jurors gathering and sending out information about cases is wreaking havoc on trials around the country, upending deliberations and infuriating judges."); Tweets and Internet Put Jury System at Risk, Law Chief Warns, The Guardian (UK), Nov. 19, 2010 ("Court-based tweeting and misuse of the internet could lead to the end of the jury system, Lord Judge, the lord chief justice, has warned.")
4 See, e.g., People v. Giarletta, 2010 NY Slip Op 03143 (2nd Dep't April 13, 2010)("Here, at the hearing conducted on his motion to set aside the verdict, the defendant established by a preponderance of the evidence (citations omitted) that juror number nine engaged in misconduct in direct contravention of the Supreme Court's instructions by communicating with her sister via text message and cell phone during the trial about particular information relating to the defendant's guilt or innocence, and sharing those communications with other jurors.")
5 See, e.g., Tapanes v. State, — So.3d —, 2010 WL 3488709 (Fla.App. 4 Dist. Sept. 8, 2010)("The issue presented is whether the trial court erred in denying the appellant's motion for new trial, where a juror used a smartphone during a break in jury deliberations to look up the definition of 'prudent,' a term used in the jury instructions and during closing arguments. We find that it was error to deny the motion, and the appellant is entitled to a new trial."); Lockwood v. State, 2010 WL 3529416 (Nev. Sept. 3, 2010)("The jury foreperson consulted eight to ten internet articles on the nature of the victim's injuries over the course of forty-five minutes and shared her research with the rest of the jury during deliberations. The court held that by conducting her own research and relaying that information to the rest of the jury, the foreperson engaged in misconduct that was prejudicial." Juror Internet Research Again Causes Criminal Conviction To Be Overturned, Internet Cases, Sept. 17, 2010).
6 See, e.g., People v. Rios, 26 Misc. 3d 1225A (Sup. Ct. Bronx Co. Feb. 23, 2010)("After the jury verdict, the People informed the court and defense counsel, by letter dated March 9, 2009, that a juror attempted to contact one of the firefighter witnesses through Facebook, a social networking web site.")
7 See, e.g., United States v. Siegelman, 561 F.3d 1215, 1240 (11th Cir. 2009)("Defendants rely upon purported emails allegedly exchanged between jurors during trial and deliberations. Documents said to be copies of such exchanges were mailed anonymously to the defense, to argue that there was both premature jury deliberation and deliberation by fewer than all the jurors in this case, and that this improper deliberation denied the defendants of their Sixth Amendment right to an impartial jury."); John Leyden, Juror Dismissed Over Facebook Poll, The Register (UK), Nov. 26, 2008 ("A juror in a sex abuse case was kicked off the case after using Facebook to ask her mates whether the suspect was guilty or not.")
8 See generally Getting Too Social? Tweeting and Texting in the Courtroom, Case in Point (Nat'l Judicial College), 2010, at 8; Jurors' Online Activity Poses Challenges for Bench, N.Y.L.J., March 5, 2010.
9 See, e.g., Johnson v. McCullough, 306 S.W.3d 551, 558-559 (Mo. 2010)("Until a Supreme Court rule can be promulgated to provide specific direction, to preserve the issue of a juror's nondisclosure, a party must use reasonable efforts to examine the litigation history on Case.net of those jurors selected but not empanelled and present to the trial court any relevant information prior to trial. To facilitate this search, the trial courts are directed to ensure the parties have an opportunity to make a timely search prior to the jury being empanelled and shall provide the means to do so, if counsel indicates that such means are not reasonably otherwise available.");
Carino v. Muenzen, No. A-5491-08T1, 2010 WL 3448071 (N.J. App. Div. Aug. 30, 2010)(either counsel had the opportunity to bring a laptop into the courtroom in order to conduct Internet research on potential jurors during voir dire).