Pandora’s Box: The internet, the power of ‘knowledge’, and irrepressible juror curiosity
[Dr. Doug Keene will be speaking on this topic in October at the Annual Meeting of the American College of Trial Lawyers.]
Oh, the things you can find on the internet. How long is a severed head conscious? How long does it take to suffocate? How much water should you drink each day? Which country was the most violent in 2008? You can find anything. And it’s at your fingertips instantly. Of course, it is up to you to determine what you can believe.
As a child, I was amazed by the World Book Encyclopedia. It opened up my small rural world in ways I could hardly imagine—other countries, urban facts, major social issues and events. While the CBS Evening News with Walter Cronkite was a nightly presence in my household, the World Book was my version of the internet. Now, of course, I know that by the time such books are published—they are already dated. And the internet offers easy access to answers to any question I might have. For example, do hawks ever experience payback for eating pretty, defenseless songbirds?
When we are so used to accessing information at a moment’s notice, expecting jurors to NOT do that is naïve. Imagine you are sitting in a deliberation room and someone says “I wonder if this fact was true” and you reach for your internet-enabled telephone to find out. It is natural. So much so that we keep reading in the news about mistrials due to juror curiosity and subsequent internet research (see our previous post).
We are seeing increasing attention to these issues by various courts. Judges are issuing specific instructions about not blogging, tweeting, or accessing the internet to find information. Some courts are considering confiscating cell phones from jurors during deliberation. How can we encourage jurors to stop doing what comes naturally (i.e., internet research) and encourage them to focus on the agreed upon rules of the courtroom?
- First, we need to 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.
- Second, we need to consider what questions our jurors will have as they listen to a story unfold. Jurors today avidly watch courtroom dramas on television and expect a similar approach to story-telling in the courtroom. Sequence your case presentation so that it answers jurors’ questions as they would naturally arise.
- Third, be credible and persuasive. This is easier said than done, but there are verbal and non-verbal cues jurors (and the rest of us) see as signs of honesty and candor. Transmit those signs. Jurors want to hear a compelling story but they are also suspicious and vigilant to the possibility of being lied to, tricked or fooled.
- Fourth, learn from pre-trial research. After living with a case for so long, you are often blinded to the reactions “normal people” will have to the case. Do the research. Identify the questions caused by confusion or doubt. And weave the answers into your presentation.
We can’t expect jurors to stop looking for answers to questions that arise for them. We can however, encourage the courts to continue their exploration of how to address this post-World Book issue, while we can create case narratives that respond to the questions of jurors in the 21st century.