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Juror Behavior in the Information Age

By 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.

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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).