by Hiliary Remick, Litigation Consultant
Here are a few familiar jury instructions with which, in one form or another, Courts all over the country have been known to admonish jurors…
• You have now been sworn as jurors in this case. I want to impress on you the seriousness and importance of serving on a jury. Trial by jury is a fundamental right.
• Do not do any research on your own. Do not use dictionaries, the Internet, or any other reference materials. Do not investigate the case or conduct any experiments.
• It is important that you keep an open mind throughout this trial. Evidence can only be presented a piece at a time. Do not form or express an opinion about this case while the trial is going on. You must not decide on a verdict until after you have heard all the evidence and have discussed it thoroughly with your fellow jurors in your deliberations.
Does it really work? Do jurors take these cautionary words to heart? Maybe not so much as we might like.
In Philadelphia, defense lawyers for former State Senator Vincent Fumo recently moved to bring a halt to jury deliberations and remove a juror after he posted remarks on Twitter.com and Facebook about progress of deliberations. The juror had told his readers, among other things, to “Stay tuned for a big announcement…”i The former Senator, on trial for Federal corruption charges, said the juror had violated court instructions not to disclose the status of jury deliberations.
Close on the heels of that story, we learned that a juror in a Fayetteville, Alabama courtroom had used the latest Twitter technology to send “tweets” or short updates on the status of jury deliberations against defendants Russell Wright and Stoam Holdings in a civil trial. His remarks included comments like these:
• “So, Johnathan, what did you do today? Oh, nothing really. I just gave away TWELVE MILLION DOLLARS.”
• “Oh, and nobody buy Stoam. It’s bad mojo, and they’ll probably cease to exist, now that their wallet is $12M lighter….”
The defendants, faced with a 12.6 million dollar verdict, are seeking a new trial on the ground that the juror’s trial twitters may have impaired his decision making capacity during the trial.ii
It is apparent that jurors can now make use of Internet technology not only to report on proceedings in the deliberation room, but also to perform independent research about their case, the parties, or the legal or other issues before them.
The notion that jurors are not supposed to conduct independent research about a case is a basic tenet of the jury system. We want jurors to form their decision strictly on the basis of evidence which a judge has already deemed admissible. But the Courts and litigants face a wave of tech-savvy, Generation X and Y jurors who routinely rely on computer and cell technology to take in most of their information. The information jurors could gather through Internet searches, however, not only draws from sources outside the permitted evidence, but might also be inaccurate, outdated, or unreliable.
Wikipedia, one of the well-known online information sources identifies itself as the “Free Encyclopedia.” Because it is a “wiki” (a collection of web pages designed to enable anyone who accesses it to contribute or modify content) its information is only as good or reliable as its contributors. Jurors who search for case information in Wikipedia, or through any Internet source, might gather information that is not just outside the parties’ settled evidence, but also inaccurate or off-the-mark. Furthermore, the Wikipedia juror might misinterpret the information he finds there. If a juror “Googles” one of the parties, and tries to draw a conclusion about the lawsuit he is evaluating based on what he discovers online, there exists a real risk of prejudice, misunderstanding, or both.
Stories like those from the Fumo and Stoam cases suggest that this trend will only continue to grow.
What are Jurors Up To? A wide range of technology now exists for jurors to use or misuse in the Courtroom, the restroom, the living room, and even the deliberation room. These include:
• Google, Wikipedia and the Internet in General. Most jurors are now thoroughly familiar with the search engines, online encyclopedias and the entire internet as a tool for searching information – even if it is inaccurate or inapplicable to a legal case. These can be accessed from home and portable computers, and from cell and “smart” phones as well. Such “research” could be conducted in a lunchroom or restaurant, a hallway, or at home after hearing a day of evidence.
• Facebook. Social networking sites like Facebook and MySpace are well-known online sites that could allow jurors to reach out to others and report on trial information and developments, or to investigate litigants or background information about an ongoing case.
• Twitter. This social networking and “micro-blogging” service could allow jurors to send and read brief information updates or text-based posts on the fly. The service can be used through a computer or SMS phone texts.
• Cell phones and Handheld Devices. Virtually every juror is likely to own a cell phone or PDA device that could allow telephone contact or text message communication to and from any Courthouse alcove or restroom to any person of the juror’s choosing. Some cell devices allow users to perform Internet searches as well.
What are Courts Doing About It?
Ideally, Courts would put in place policies that might discourage misconduct in advance: taking cell phones, giving specific instructions to jurors against the use of technology to research or report on trial information, and warning them about any possible sanctions for such activity. However, these policies are not enough to guarantee good behavior.
If litigants or a judge discovers juror misuse of technology during a trial, a mistrial may be declared. During a recent Federal drug trial in Florida, a juror admitted that he had been researching the case on the Internet in direct violation of the Court’s instructions. After an astonishing eight other jurors admitted the same thing, a mistrial was declared eight weeks into the trial.iii Jurors routinely research, blog and reach out electronically in a way they did not do in decades past, and almost without thinking. Once they do so, the secrecy of deliberations and certainty of evidence can be lost.
Perhaps the most troubling possibility is that attorneys and judges cannot be sure when jurors have quietly conducted research or communicated with others about trial events. Jurors may be unable to resist the belief that they will be serving justice by getting detailed answers to unanswered questions. While juror “tweets” or Facebook messages will become newsworthy in a handful of high profile cases like Senator Fumo’s, it seems likely that most “online” juror mischief might go unnoticed. In that case, the Court would simply do nothing at all.
What’s a Lawyer to Do About It? The trend in favor of juror research and reporting on active cases using new technologies is likely to grow and be difficult to detect. What should a lawyer do in response to this trend?
• Ask your trial judge for a specific admonition against Internet use/communication about the trial, and also include an explanation to jurors about why the rule exists and what the consequences of breaking the rule are too.
• Use Voir Dire questions to educate jurors about why Internet research is not reliable for the case, and encourage jurors to help enforce the rule.
• In some jurisdictions, jurors can submit questions for a specific witness; watch for clues in answers to such questions which may suggest a juror might be investigating on his own.
• Learn some of the background signs that a juror might be investigating on his own, and be ready to raise an issue that juror misconduct created an appealable issue.
• Ask whether your jurors use Facebook, MySpace, or Twitter.
• Ask whether your jurors maintain a blog or similar Internet communication site.
• Monitor your jurors’ Internet sites, “tweets” or MySpace/Facebook pages.
• Ask your jurors whether they use smart phones, similar phones with Internet capacity, or devices like the iPod Touch.
• Ask the Court to confiscate jurors’ cell phones while they are in the courthouse.
• Consider encouraging your area Court to implement a policy or formal Local Rules against jurors communicating about cases not just personally but through computers, cell phones, and other electronic devices. Such a policy should also forbid Internet searches, chat room discussions and “blogs” mentioning any case.
Hiliary Remick, Esq. is a Litigation Consultant with Magna Legal Services, LLC. She assists trial counsel with creation of trial strategies in litigation throughout the country. Her work includes focus group facilitation and analysis, creation of case themes and arguments, and the development of complex trial graphics as persuasive courtroom tools. Before joining Magna, Ms. Remick worked as a trial attorney for nearly twenty years in the fields of personal injury and commercial litigation, and brings hands-on litigation experience to her work as a member of our consulting team. Her professional background includes work in the fields of asbestos litigation, and medical and dental malpractice. Hiliary Remick earned her Bachelor of Arts degree cum laude in Political Science and English from the University of Pennsylvania, and her Juris Doctor from Villanova University School of Law. She is a member of the Pennsylvania Bar Association and the American Society of Trial Consultants.
i. Philadelphia Inquirer, “Fumo Lawyers Target Juror, Deliberations”. March 16, 2009.
ii www.nydailynews.com, March 13, 2009.
iii The New York Times, “As Jurors Turn to Web, Mistrials Are Popping Up”. March 18, 2009.