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It’s not just jurors who are doing it

Monday, October 19, 2009
posted by Douglas Keene

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If you haven’t heard accounts of problems related to jurors and the internet in the past year, you have been living under a rock. The increase in media attention makes it seem like a new problem. However, the internet has played a disruptive role in courtroom activities and jury deliberation since at least 2001 according to the Citizen Media Law Project. And while the legal system’s attention has been largely on jurors, don’t kid yourself! Judges. Parties. Witnesses. Attorneys. People who should know better are using the internet inappropriately. It really isn’t just the jurors.

Last week I had the privilege of participating in a distinguished program at the annual meeting of the American College of Trial Lawyers in Boston regarding the complications of internet use and jury trials.  As part of the preparation for that program we at KTC did some extensive research on the role of the internet in the courtroom and prepared a brief paper. Here is some of what we found:

Social media use is most pronounced among those 25 and younger with sharp declines as we age.  But don’t assume this is a consideration for younger jurors alone.  Fellow panelist Sean Ellsworth, a criminal defense attorney from Miami, related the story of an important trial tainted by juror internet research.  When the misconduct by a single juror was brought to light, the judge individually interviewed the entire jury.  Of the 12 jurors, 8 had done some form of internet research related to the case, and the age range of the offenders was 20-68!

Social media use is a fact of life for most of us. 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?

But it isn’t just jurors! We found examples of judges, attorneys, witnesses and parties in addition to jurors. Ex parte communication, blogging case facts too thinly disguised (as was also discussed on the panel by Boston personal injury attorney Elizabeth Mulvey), Facebook snooping, texting witnesses and more.

Jurors do, of course, misuse the internet by doing research and posting updates to Facebook or Twitter.

So what should be done? Many suggestions have been made (in addition to much hand-wringing). Our review of the literature (popular and professional) suggests the following strategies:

  • Revise jury instructions with specific language about electronic devise use. The instructions need to include an explanation of why it is important, not merely a command to resist.
  • Remind the jurors at regular and appropriate intervals.
  • Tell jurors that part of their oath is to report any sign of juror misconduct by anyone on the jury, including any indication that someone is using the internet in violation of the rules.
  • Make it clear that violations of these rules are violations of the law.
  • Add voir dire questions that address actual juror internet use.
  • Ask in voir dire if jurors would abide by instructions not to use the internet.
  • Consider questions jurors will have as the trial unfolds, and include the issues in the examination of witnesses.
  • Allow jurors to ask questions.  It has the effect of diminishing juror longing for extra information, and allows them to feel like a more active part of the trial process.

Arm yourselves with information to deal more effectively with the challenges.  Read the whole paper we prepared. Visit our website and download the article ‘Wired for Justice: The Internet in the Jury Room”.

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