“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.

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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”

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““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.

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Related posts:

1. Pandora’s Box: The internet, the power of ‘knowledge’, and irrepressible juror curiosity
2. An illusion of privacy…on the internet?
3. When the defendant texts the juror…