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Archive for the ‘Internet & jurors’ Category
May it please the Court
I was flattered to be invited to address the Eighth Circuit Judicial Conference last week, on the topic of “Social Networking and Other Evils of the Internet in Jury Trials.”. I joined US District Judge Donald Molloy (Montana), Andrea Henson-Armstrong (Federal Judicial Center in DC) and Tom Waterman (Lane & Waterman, PC, Davenport, IA) in our discussion of the issues, including the ways that jury instructions are being revised and why some jurors appear to refuse to abide by the admonitions of the court. I also provided an updated and expanded version of the 2009 KTC paper on this subject, which includes current case law and proposed versions of jury instructions. You are welcome to a copy of the paper here.
Judges like to be listened to and obeyed. No surprise there. Part of my hope is that through the panel presentation, the judges were able to understand how society has changed over the last couple of decades, and how technology has become so second-nature to American citizens that many juror rule infractions are unconscious, while most others are well-intended, even if uninformed. If the goal is to achieve higher compliance among jurors, we will need to do a better job in readying them for their duties.
There are two main categories of violators of judicial admonitions regarding use of technology among jurors.
• The Innocent and Oblivious. Most who don’t follow the court admonitions don’t realize they are breaking the law. After spending the evening surfing the internet, they would tell the judge “I didn’t do research! I haven’t been to the library in years!”
This group needs to be clearly and fundamentally informed of the myriad ways we do research, including “just looking stuff up on the internet”. Use common language. Use personal examples. Explain why it is important, and don’t stop with the issuance of behavioral demands. Judicial edicts will not help this group obey the rules.
• The Angry and Defiant. This second group is more problematic. They include the subset of Americans who are angry and mistrustful of all branches of government, especially Federal. The judiciary is not immune from their anger, and there is a great deal of suspicion about the validity of the court’s authority, and the rules by which the court plays. “I hear what you are saying, but I will decide for myself what justice requires!”
To solve the challenge of this group, the court has to conduct, or otherwise allow, meaningful voir dire. Asking rhetorical questions about whether they will “follow the law as given to them” is not useful, and for the Angry/Defiant jurors it is an example of the problem, not the solution. If these people can’t feel that following the rules is an extension of their values and their beliefs, they can’t be counted on to abide by the rules or respect the judicial process. Send them home.
Also discussed during the panel discussion were problems with discoverability due to electronic open records, and the challenges associated with the fact that some jurors look up court documents, and some do searches on potential witnesses, parties, attorneys, and judges. Reference was also made to a chilling article recently published in the New York Times, “The Web Means the End of Forgetting.”
The program was, in many ways, cautionary. We all spoke as advocates and defenders of jury trials, and out of the conviction that it is not necessary for Web 2.0 to be another nail in the coffin of citizen participation in justice. The word needs to get out that the jury system is not anachronistic, but some of our traditions (edicts instead of explanations) and assumptions (judges are obeyed) clearly need to be revisited. If the federal judiciary is listening (and they were!), there is hope.
Legal decisions that tick jurors off
Two recent legal events (an arrest and the overturning of a conviction) have resulted in a lot of commentary by aggravated citizens. Those who have served on juries tend to have more positive things to say about jury service than those who have never served—but the reality is there is much in the media to tick potential jurors off. And of course, the vast volume of sound verdicts by jurors are simply not as much fun for the press to cover, so… Recently, two decisions have struck chords with jurors and resulted in them expressing a perspective that something is seriously wrong with our criminal justice system.
The Warren Jeffs retrial
Warren Jeffs (known as the “prophet” of the Fundamentalist Church of Jesus Christ of Latter-day Saints—aka FLDS) was convicted in September, 2007 of coercing a 14 year old girl into marrying her 19 year old cousin. Jeffs was charged with two counts in being an accomplice in the rape of a teenage girl. Many doubted Jeffs could be convicted in Utah. But convicted he was. Now,as of July 28, 2010, Jeffs’ conviction has been overturned by the Utah Supreme Court on a technicality. In less than a week, there are more than 1600 comments about the ruling. Most of them are from ticked off citizens who think this should never have happened. Stories like this one, regardless of their legal merit, enrage the public.
The Grim Sleeper arrest
On July 7, 2010, Los Angeles Police arrested a man they believe to be a serial killer dubbed the ‘Grim Sleeper’. They charged Lonnie Franklin, Jr. with at least 11 murders between 1985 and 2007. That first day, it was reported that:
“Franklin’s arrest was the first successful use of a DNA investigative tool known as “familial” searching in California. Familial searching, approved by Atty. Gen. Jerry Brown at the urging of Cooley and other prosecutors, allows investigators to pursue partial genetic matches to crime scene evidence when the suspect’s DNA profile is not in the state database.”
Later on July 7, 2010, an article was published detailing how LAPD had followed the DNA trail to the alleged perpetrator. And the next day (July 8, 2010) questions began to arise about whether it was fair to use family DNA to catch a killer. Before another week went by, the debate had been framed as either a tool to protect communities or an invasion of privacy smacking of racial profiling. And comments show people are unhappy on either side of the debate. Those who think it makes sense to allow ‘familial searching’ point to the reality that it may be the only way to catch dangerous criminals. Those who think it goes too far say relatives who are innocent can be dragged into situations over which they have no control and no involvement.
The lesson for us in this is to make sure and explain ‘why’ the rules are important. Explain ‘why’ they can’t use the internet to research the case, and explain how reliable (or not) forensic evidence is. To be optimally persuasive, you have to educate, inform, and bring jurors along with you in the story. It won’t keep things from happening that may rub jurors the wrong way. But it gives them a framework to understand “why” and while that framework may not help them feel good about their decision, it comforts them in their distress.
An illusion of privacy…on the internet?
We’ve written before about jurors and the internet but wanted to post an update for all of us. We tend to act more freely online. A recent PsyBlog post highlights the fact that the single and the young are more likely to disclose the most on Facebook. They disclose things they would never disclose face to face with a stranger. We would all do well to reconsider what we disclose on social networking sites—although the new Facebook privacy rules may have helped people to review their Facebook settings already. It wouldn’t hurt at all to take another look.
We may act more freely because we think we are somehow anonymous. And that may not be the case!
Consider, for example, the judge in Cleveland, Ohio who is suing a newspaper for $50M claiming it conspired to discover private information with a website. The claim filed by Judge Shirley Strickland Saffold alleges that the website reported the judge may have made anonymous comments on a newspaper’s website about cases in front of her court.
The newspaper says they filed an open records request and determined that the judge’s office computer was on the web site at the time three of the comments were left. “The only thing we did that the public couldn’t do was figure out whose e-mail was associated with those comments in the first place,” Plain Dealer Editor Susan Goldberg said.
We have written, been interviewed, and have spoken at CLE programs frequently over the last couple of years about the need for judges to instruct jurors explicitly about ways internet communications and information needs to be avoided until they are released from trial duty. Evidently Judge Saffold hasn’t been following our work in this area, or the work of countless courts that have made meaningful changes to jury instructions. But perhaps the worst example so far this year is from Judge James Oppliger who emailed his fellow judges about his ongoing jury service.
The point is that you never know when that which you believe to be anonymous or private—won’t be! Just ask the policeman whose texting case was just heard by the Supremes. While Judge Saffold is alleged to have not only made the mistake of assuming anonymity but also of commenting on cases before her court—we would hazard a guess that she certainly will be more careful about assuming anonymity in the future.
And finally, the dark side of social networks. While many would say that social networks often foster negativity and bias (and here and here) there is a new site out there that really is likely to pull negativity. Unvarnished.com is a place to evaluate friends, colleagues, waiters, service people—in essence, to write about anyone you wish.
According to Anne Fields’ blog, this site is an invitation for those who don’t like someone to simply trash them. And, as one social media expert says “Increasingly, today’s ‘social web’ doesn’t empower people. It empowers hate, exclusion and polarization.”
We all need to ‘be careful out there’ and monitor what we say and how we say it. You may want to think about monitoring your own reputation at a site like StepRep. And, if you’re a judge, avoid commenting on open cases!
Trial Skills Journal on the Web: The Jury Expert
The Jury Expert (TJE) is a trial skills journal–meant to improve your litigation advocacy while educating and informing you about new research, new tactics and strategies, or new ways of thinking. We think the content in The Jury Expert is novel, relevant, practical, and often challenging or thought-provoking. It’s a different perspective on improving litigation advocacy based on years of experience in witness preparation, pre-trial research, case theming, persuasion strategies and life in general.
Every issue contains an article or two from academic researchers who translate their work into plain English. These articles are commented on by ASTC-member trial consultants who further translate the work into how they would use (or not use) the research findings in the courtroom. This issue, the articles from academics cover Sex & Race in the Courtroom (how it’s changed over time) and an introductory primer (in the form of an annotated bibliography) to the specialty area of Not Guilty by Reason of Insanity (NGRI) and Guilty But Mentally Ill (GBMI). Trial consultant responses add value and relevance to these pieces.
The remainder of the articles in November’s TJE are written by trial consultants. This is your chance to hear how different trial consultants think and practice. A chance to hear how we do what we do (and why) on a variety of litigation-related topics. Visit The Jury Expert website to see the November 2009 issue with pieces on:
- Googling Jurors: Understanding what is happening and how to minimize the intrusion of the internet in your case (This piece is from Keene Trial Consulting and is conveniently hyperlinked to serve as a reference for you and to give you the best ideas about how to mitigate internet intrusion in your case.)
- Jury Research on Defense Settlements (Melissa Gomez on negotiation and settlement)
- When Jurors Nod (Stanley Brodsky & Michael Griffin acknowledge our excitement when we see jurors nodding and explore what it really means and when we should pay closest attention to nodding)
- Best Practices in Live Communication (Katherine James distills 30 years of courtroom practice and 50 years of stage acting into lessons for litigators) and
- Don’t Poke Scalia: Lessons for litigators from observing the Supreme Court (Tara Trask & Ryan Malphurs observe and offer ideas on how we can learn from missteps at the nations highest court).
We’re proud of The Jury Expert. It’s grown exponentially in the year and a half it’s been on the web. Have we mentioned it’s free? Take a look. Post comments. Download at will. You’ll be glad you did.
It’s not just jurors who are doing it
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”.
“Friending” the Judge
Forty-five percent of employers report they use social networking sites to screen applicants for employment as of August 2009 and even more plan to do so in the near future. And it’s pretty common knowledge that lawyers are using on-line profiles to gather information regarding prospective jurors. But now the tables are turning in an odd way. Attorneys: take note! The judge may want to be your “friend”.
A recent article in the Texas Lawyer tells about three Texas judges and how they use Facebook and other social networking sites to network, solicit campaign support, and “other purposes”. It’s that last part that’s the real clincher. These judges are reading profiles of attorneys, witnesses, and plaintiffs/defendants that share “too much” and could be used in court against them.
We are all figuring out how to use Facebook, Twitter, and LinkedIn as we go about our daily activities. While it is likely never a good idea to call the judge an “evil, unfair witch” in your blog, keep in mind the following as you develop and refine your on-line persona:
- If you are using social networking sites for business purposes, have two sites—one personal and one professional.
- Assume that even your personal site becomes publicly distributed—keep your profiles and content “G-rated”.
- Keep all of your posts suitable for universal consumption– watch what you post, tweet, blog, or text.
- And don’t make my own mistake—double check the “To:” line on emails just before you hit send, not moments afterward.
Sure—it will make you less witty on the web, but it won’t come back to bite you. The line between the personal and the professional is blurred as never before. We don’t have control over how others may use easily collectible information about us. As you think about the growing field of e-discovery—consider what you are putting out there about yourself. It is likely not just Texas judges that are watching.
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.
When the defendant texts the juror…
In an odd twist on the coverage we’ve seen of Twittering, texting, and internet-exploring jurors—the trial of a man being prosecuted for third-degree rape and sodomy has ended in mistrial. A juror reported receipt of a text message sent from a relative of the defendant. It is not yet known if the defendant requested the text message be sent, but the judge declared a mistrial. A new jury will be selected in February, 2010 and, in the meantime, the defendant remains in custody until a full $25,000 bond has been paid.
This represents a whole new level of concern for the justice system. We’ve had ample media attention on jurors exploring the internet, tweeting, texting, making Facebook entries or writing in their blogs about jury service (see our previous posts on jurors and the internet here and here and here). We’ve even had witnesses on the stand texting their counsel and causing mistrial in a civil fraud case. Most of the coverage of problems with internet and wireless issues relates to juror or witness misconduct. But this approaches reaching into the jury box, not out of it. And that is potentially frightening.
Whether this incident will result in more support for the idea of anonymous jurors will remain to be seen. But, in this instance, allowing only attorneys to have cell phones in court (a new suggestion) would not have made a difference. Fortunately, the juror receiving the text message reported it to the court.
For now, perhaps all we can do is educate 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. It’s a leap of faith, this business of trusting jurors. Our mock trial work and post-verdict debriefings of jurors teaches us again and again that jurors take their work seriously and want to do the right thing. We have to take seriously the responsibility of teaching them how to deliberate both effectively and fairly.
Let’s see if you can text him from jail…
At last week’s hearing in Miami, the plaintiff in a commercial case won a victory of a very strange sort—when the judge dismissed his case he didn’t simultaneously throw the plaintiff in jail. But the judge referred the case to a General Magistrate, so stay tuned for further developments.
Miami Dade Circuit Judge Scott Silverman declared a mistrial in a commercial fraud case in May when the Plaintiff, Yizhak Toledano was seen by a court spectator sending text messages to the witness, COO Gavin Sussman, during a sidebar conference while the witness was still on the stand. Now the fraud suit has been dismissed by the judge, who wrote a scathing rebuke to Plaintiff for his conduct, and sanctioned Plaintiff for Defense fees and costs.
What makes the whole situation the stuff of magistrate referrals and jail terms? Improper witness communication can be inadvertent or careless, but not so in this case—it appears to be the way they get things done. The witness in this case had already been reprimanded by the court two months earlier for texting another witness in the case during a deposition. These seem to be people that don’t play by the rules or take oaths of testimony seriously.
According to published reports, the judge essentially said that the Plaintiff’s conduct destroyed whatever merit their case had, and “Nothing this judge has seen holds a candle to plaintiff’s egregious and deliberate attempts to subvert our justice system”.
Not that these witnesses would care, but my favorite book on witness preparation is Daniel Small’s “Preparing Witnesses”, now in the second edition, published by ABA Press. A short volume, it is written for both attorneys and witnesses, and offers clear and sensible guidance that we have found useful for many years. Of course, we would urge Mr. Small to add a new section for the next edition, perhaps entitled “Things that no one should have to tell you not to do”. The new section will end with a short paragraph on “What happens if we have to tell you twice”.
Panic on Tweet Street: “Without Twitter, I felt jittery and naked”
Thursday, August 6, 2009 was a day that apparently will live in infamy for many habitual Twitter and Facebook users. Multiple social networking sites were attacked and crashed, leaving users without a way to update their circles on their activities. Some “users” panicked as much as you might have expected from drug addicts. Users were “jittery”, “naked”, “freaked out”.
Those of us not drawn obsessively to Twitter, Facebook or other social networking sites, find these reactions seem frankly bizarre. It isn’t like my favorite Starbucks café shut their doors without warning me! But, obviously, those affected by the Twitter/Facebook fail were strongly affected. As Marc Cooper, a journalism professor at the University of Southern California’s Annenberg School for Communication said in the CNN article:
“For many people, and not just young people, the Web is not just media, it’s actually a place where they conduct their lives or a portion of their lives.”
What we can learn from this reaction:
We need to remember where our jurors live their lives—some are not involved in on-line social networks and others are—to a very large degree. Much like a recent post on the Cognitive Daily blog points out there are generational gaps that we often overlook.
Just as most younger jurors have no idea of the origin of the phrase “sour grapes”, many more ‘mature’ litigators don’t stop to think about how—or even if—on-line networking involvement affects how jurors hear their case. For many, social networking is a friendship circle, and a source of information and impressions about everything—including case-relevant information.
Just as the barrage of media coverage on Twittering jurors hit in March (see our blog post on March 17th, 2009), the reaction to the failure of these on-line networks is a strong reminder to pay attention to social networking involvement of our potential jurors. What values and attitudes are inherent in this merging of private and public lives? How might potential jurors have shared perspectives that give us information on how they will react to your case? We have to learn to pay attention to what is important to the public—not just what is important to us.
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