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