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Archive for the ‘Internet & jurors’ Category
Do judges who instruct jurors to avoid social media have an impact?
Yes, says Amy St. Eve (a federal judge in Chicago). While the judge doesn’t do either Facebook or Twitter herself, she has polled jurors in her courtroom by asking two questions embedded in a larger written survey:
“Were you tempted to communicate about the case through any social networks, such as Facebook, MySpace, LinkedIn, YouTube or Twitter?”
“If so, what prevented you from doing so?”
Judge St. Eve acknowledges the sample of 140 actual jurors from both civil and criminal trials (drawn from her courtroom and the courtroom of a colleague, her co-author) is not a scientific one and thus open to criticism around basic issues such as generalizability. She writes in the description of the survey itself: “We expect a Daubert challenge from some in the blogosphere”.
The findings were recently published in the Duke Law and Technology Review and give a positive response to the question of the influence of the courtroom judge on individual jurors. [She also cites our work on jurors and the internet so we know she’s done her homework!] The lengthy introduction to the survey results is a good review of what has been published on the issue to date.
The vast majority (92%) of the jurors completing the survey reported no temptation (none at all!) to communicate about a case through social media.
Only six of those completing the survey said they were tempted and four did not do so because of the judge’s orders. However, not one of these six reported they actually did communicate about the case via social media.
“Our key takeaway from the informal survey is that courts should routinely and frequently instruct jurors not to communicate about the case through social networking services, because jurors tend to follow the judge’s social media instructions.”
From our perspective, Judges St. Eve and Zuckerman’s survey results paint a very rosy picture indeed. We imagine there is pressure to report obedience when you are filling out a survey for the judge and a quick search of Twitter using the hashtag meant to group tweets together finds a plethora of tweets indicating jurors are being quite disobedient and sometimes quite amusing.
There is nothing funny, however, about mistrials resulting from social media quips and insults. What we do agree with the authors on is the right of the jurors to respect from the court. They quote Judge Linda Giles in a 2011 Boston Bar Journal column:
“If jurors are going to be asked to sacrifice some of their personal freedom and forego their case-specific e-mailing, texting, blogging, instant messaging and social networking for the duration of their service, they are entitled to a clear and thoughtful explanation of the reason.”
We would go even further than this. If Judge St. Eve and Judge Zuckerman have demonstrated the sort of thoughtfulness in the courtroom that their carefully prepared paper reflects–we would think their respective jurors probably do listen well and take their roles seriously.
We would urge Judges St. Eve and Zuckerman to carry their research to the next logical step and ask about doing internet research. Our work with jurors suggests that this is a much more pervasive temptation, and logically it is of greater potential harm to justice. The prospect of a juror being guided by evidence gathered outside the courtroom (and outside the ability of the parties to challenge) needs to be thwarted, and a careful study of how and when this occurs would help judges craft effective instructions.
Jurors are not easily fooled. When a judge carefully explains the rationale behind the ‘no social media’ or ‘no online research’ policy, it will make sense. Every juror can relate to the desire for a fair trial. The problem is that they don’t have the experience as jurors or litigants to appreciate the reasons that justice is undermined when the rules are broken. The recent death penalty verdict overturned by a series of careless tweets, despite warnings by the judge to stop, only underscores the very real cost and unfairness of social media involvement in cases very serious to the parties involved.
St. Eve, A., & Zuckerman, MA (2012). Ensuring an impartial jury in the age of social media. Duke Law and Technology Review, 11 (1)
Read the full article here.
Rationalizing or rebelling (by insisting your unrequited love object truly adores you?)
Yikes. Who would have imagined that social science researchers sometimes could occasionally disturb us. And other times make us laugh. And other times amuse us. But this time the reaction is hard to categorize as the researchers say their results may help explain everything from unrequited love to the uprisings of the Arab Spring! Ah, the researchers may need to have their grandiosity evaluated. Or–maybe not. Social science ‘string theory’, anyone?
It started when they wondered what would happen if there was a rule for which people perceived there was some ‘wiggle room’. So they examined reactions to a speed limit change.
“Participants read that lowering speed limits in cities would make people safer. Some read that government leaders had decided to reduce speed limits. Of those people, some were told that this legislation would definitely come into effect, and others read that it would probably happen, but that there was still a small chance government officials could vote it down.
People who thought the speed limit was definitely being lowered supported the change more than control subjects, but people who thought there was still a chance it wouldn’t happen supported it less than these control subjects. Laurin [the first author] says this confirms what she suspected about absoluteness; if a restriction is definite, people find a way to live with it.”
It’s an interesting hypothesis. [Thanks to second author Aaron Kay, you can find the full pdf of this article here.]
Consider the impact of rules on sworn jurors. We have been watching and weighing in on issues on jurors and the internet for a number of years now. Suggestions are often made for how to curtail the issues of the Google mistrial. But they are just that, suggestions. This research advises that we need to be more extreme and absolute and unequivocal in demanding that jurors do no research on the internet about the cases they for which they sit in judgment. “It’s not a good idea– It’s the law”. And, of course, as always, it’s critically important to explain the ‘why’.
And one more thing! This isn’t just about explaining Arab Spring or the Google mistrial. It’s also about unrequited love. Back to the press alert:
And how does this relate to unrequited love? It confirms people’s intuitive sense that leading someone [on] can just make them fall for you more deeply, Laurin says. “If this person is telling me no, but I perceive that as not totally absolute, if I still think I have a shot, that’s just going to strengthen my desire and my feeling, that’s going to make me think I need to fight to win the person over,” she says. “If instead I believe no, I definitely don’t have a shot with this person, then I might rationalize it and decide that I don’t like them that much anyway.”
As people who have also provided a lot of counseling to the heartbroken (in an earlier phase of professional life) we would suggest that it may be up to the person feeling unrequited to walk away even if the door in your face seemed equivocal. Aren’t we talking about love? Ah, but I digress… and yet the lesson is apparent. If you are not interested, be perfectly clear. Crystal clear.
Ultimately, the research appears to affirm a maxim of life that bears reminding; we tend to hear and see what we want, unless it is inescapably clear that only one thing is being said. Whether we like it or not. Or as Paul Simon put it “A man hears what he wants to hear and disregards the rest.”
Laurin, K., Kay, A., & Fitzsimons, G. (2011). Reactance versus Rationalization: Divergent Responses to Policies that Constrain Freedom. Psychological Science.
Paul Simon lyrics from “The Boxer”
The Viktor Bout “juror pledge” [“I will not do research on the internet”]
It is frankly amazing that this modest but important step forward hasn’t gotten more attention. When Judge Shira A. Scheindlin of Federal District Court in Manhattan said she would have jurors sign a pledge to avoid internet research in the Viktor Bout trial, we paid attention. The New York Times quoted Judge Scheindlin:
““I am keenly aware that there are convictions set aside all over the country when we learn later during deliberations a juror looked up the keyword or the key name,” the judge said at the hearing, held this month. “We in the judiciary have been discussing this.”
A few moments later, Judge Scheindlin told the lawyers that she would write a pledge that jurors might be required to sign, promising that they would not turn to the Web to look up Mr. Bout or anything related to his trial until it was over.
Those who signed the pledge, Judge Scheindlin said, would be subject to perjury charges if they broke the agreement.”
Jurors researching cases on the internet have been a thorn in the side of the justice system for years. The act of researching and bringing information back to fellow jurors (resulting in mistrial) has been called the “Google mistrial”. The problem has gotten so pervasive, a judge in Minnesota has begun a single-subject blog called Jurors Behaving Badly .
While many papers covered the announcement that Judge Scheindlin was going to require a “juror pledge”, no one seems to have published the actual pledge itself. A widely circulated AP press release was published extensively as the trial opened, all it said was that the pledge had been signed under penalty of perjury.
“Twelve jurors and three alternates were chosen Tuesday during a daylong process. U.S. District Judge Shira Scheindlin required all of them to sign a first-of-its-kind juror pledge, in which they promised not to research any of the issues or parties involved in the trial on the Internet. The pledge contained a signature line after the words: “Signed under penalty of perjury.””
This is a “first of its kind” pledge on a topic that has been written about extensively–with many recommendations for wording. We are grateful to the writer on Twitter who provided us with the actual pledge (thanks @kathilynnaustin).
Here is the actual wording of the juror pledge in the Viktor Bout trial:
I agree to follow all of the Court’s preliminary instructions, including the Court’s specific instructions relating to Internet use and communications with others about the case. I agree that during the duration of this trial, I will not conduct any research into any of the issues or parties involved in this trial. Specifically, I will not use the Internet to conduct any research into any of the issues or parties involved in this trial. I will not communicate with anyone about the issues or parties in this trial, and I will not permit anyone to communicate with me. I further agree that I will report any violations of the Court’s instructions immediately.
Signed under penalty of perjury.
____________________________
____________________________
(Sign and Print)
Dated: New York, New York
October 11, 2011
Will it work? Or, as some say, will it simply put the idea in jurors’ heads to go do some internet research perhaps finding this transcript submitted by the US Government into evidence? We’ll have to wait and see. But jurors are already doing research and it is simply an automatic act for many to search the internet for information. Research points toward Judge Scheindlin being spot on.
We don’t think it’s gone far enough, but it’s a healthy start. The next steps include a clear statement of the potential penalties for juror misconduct. Not that we want to see people going to jail, but it’s useful for them to appreciate the full importance of their behavior.
Perhaps a signed pledge (under penalty of perjury) will alert them to not research the case front and center for jurors as they proceed through trial. Or at least, imbue them with a full appreciation for the importance of their agnostic role.
We hope so.
Mistrials due to lawyers making faces, internet misconduct & more
Even though we have been hearing about (and writing about) jurors and the internet for a several years now—it was still something of a shock to see the ABA piece identifying 90 verdicts challenged due to jurors’ alleged internet misconduct. We wrote an article on Jurors and the Internet in The Jury Expert back in November of 2009. (And if you haven’t seen the updated version from August, 2010—here it is.) Readers cannot get enough of these articles—and it appears jurors can’t get enough of the internet! Ninety verdict challenges is a lot of activity.
But jurors and the internet are not the only behavior causing mistrials. There’s a very odd story out of the UK about an attorney in the courtroom gallery making faces and rolling his eyes at the jury. The jury was so unsettled by this, they sent a note to the judge:
“We find him very distracting and he is making strange faces all the time. We feel very uncomfortable with him.”
The case ended up in mistrial as it turned out the face-making attorney had unsuccessfully prosecuted the female defendant earlier and she said she was disconcerted by him as well.
Strange things can happen in the courtroom as well as in the jury room. We’ve written before about the importance of teaching the jury how to [and how not to] deliberate. New research would say it’s also important to teach juries how to pick their presiding juror. We know the presiding juror is important, in terms of preventing a hung jury. But, the way a presiding juror is selected may also have impact on the deliberation process.
Eckel, Fatas & Wilson (2010) looked at how leaders are chosen and how that selection process relates to group functioning. They had group members participate in a task where everyone saw each other’s scores. Then they assigned group leaders defining a ‘high status’ leader as someone with a high score and a ‘low status leader’ as someone with a low score. What they found was that when leaders were seen as high-status—group members invested more and participated in the task at hand. When group leaders are seen as low-status—group members de-invest and do not participate.
The implications for what you need to communicate to jurors about how to select a presiding juror are clear:
Talk to jurors about the importance of the presiding juror role.
This defines the presiding juror role as ‘high status’.
Talk to jurors about what makes an effective presiding juror.
This helps them see/determine who would be the best choice.
And perhaps teach them how to deliberate so they can have the best chance at working together effectively.
Keep in mind that this is a strange new role for them, and some practical guidance presented in the right tone could be appreciated.
CATHERINE C. ECKEL, ENRIQUE FATAS, & RICK WILSON (2010). Cooperation and Status in Organizations. Journal of Public Economic Theory, 12 (4)
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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.
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