2. Examples of juror misconduct
involving Internet Use
• 9 of 12 jurors conduct Internet research about
case during trial.
• Jury foreman Googled the defendant’s name.
• Jury Googled co-conspirator’s prior record.
• Juror research discovers prosecution witness
in protective custody.
• Juror looks up MySpace profile of teenage
victim.
3. Examples of juror misconduct
involving Internet Use (Cont.)
• Juror looks up defendant’s prior criminal
record.
• Juror looks up defendants’ ages and dates of
birth.
• Juror researched Oppositional Defiant
Disorder.
• Juror researched effects on blood alcohol of
the drug Narcan.
4. Examples of juror misconduct
involving Internet Use (Cont.)
• Juror looked up definition of lividity.
• Juror researched whether a particular bullet
could have damaged a bullet-proof vest.
• Juror conducted his own Internet research to
determine an alternate cause of death.
• Juror used Internet to look up legal definitions
of “attempt,” “distribution” and “possess.”
• Juror researched “aggravating” in terrorism
case.
5. Examples of juror misconduct
involving Internet Use (Cont.)
• Juror researched “great bodily harm” in DV
case.
• Juror researched “deliberating” in
racketeering case.
• Juror researched sentencing ranges in DUI-
death case.
• Juror foreman researched state statute setting
forth drug violations and penalties.
6. Examples of juror misconduct
involving Internet Use (Cont.)
• Juror posts status on Facebook.
• Jurors become Facebook friends.
• Juror foreman blogged about murder trial during
the taking of evidence and deliberations.
• Jury foreman, who was an attorney, blogged
about on-going case.
• British juror in child sex abuse case held a
Facebook poll on defendant’s guilt or innocence.
7. Examples of juror misconduct
involving Internet Use (Cont.)
• Juror “friend-ed” the defendant on MySpace.
• Juror sent a “friends request” via Facebook to
on of the witnesses.
• Juror received on-line dating match for expert
witness.
• Juror posts “It’ll be fun to tell the defendant
they’re guilty” on Facebook.
8. Juror Motivations
• Always are part of the “Matrix” by wire or Wifi
• Displeasure with being “spoon-fed” evidence
• Legal, medical and technical terms undefined
• Genuinely want to be a fair and decent juror
• Anti-government
• Treated unfairly with $10 daily compensation
and 27 cents a mile
• Seek the forbidden fruit
9. Juror motivations (continued)
• Judges tell them they are the triers of fact, but
they are not treated as a part of THE CLUB
• They misunderstood the preliminary
instructions and thought researching general
legal terms was OK.
10. Types of Internet Inquiries
• Media accounts of the specific case
• Virtual physical and other factual evidence:
Google Earth, Mapquest, statistics, maps
• Expert opinions: Example, cover article in NY
Times Sunday magazine on Shaken Baby
Syndrome
• Personal and professional information on
parties, lawyers, judges, and witnesses
• The Law: sentencing guidelines, etc.
11. Social Media Use
• “Friending” parties, lawyers and witnesses
• Blogging about trial experiences during trial
• Seeking comments from others about those
experiences
• Developing celebrity in anticipation of
appearances on the Today Show and a book
tour: “I was the last holdout!”
• Tweeting during the trial, gaining an audience
12. Surveys of Public Sentiments:
What should the courts do?
• Take away their phones!
• Taking phones is silly- jurors can access Web at
home.
• It’s a systemic effort to keep jurors from
learning the ACTUAL truth!
13. Possible Court Administration-Led
improvements
• Increase juror compensation & mileage
• Improve juror education and re-do video
• Devote more resources to juror comfort and
convenience
• Make the juror summons less “busy” and
more user friendly
• Have consistent statewide juror information
accessible on state website
14. Possible Court Administration-Led
improvements (Cont.)
• Instruct jurors from the initial summons for
jury duty that they are to refrain from any
efforts to learn about cases that may be going
to trial at the time of their summons. It must
be made clear that this includes
newspapers, Internet and electronic
research, or personal investigation.
15. Possible Court Administration-Led
improvements (Cont.)
• If the venue makes use of a central jury
facility, have the jurors reinstructed that they
are forbidden from looking up any information
about any cases pending before the court, and
have them sign statements of understanding
that failure to comply with this is a violation of
the law and subject to punishment.
16. Possible Court Administration-Led
improvements (Cont.)
• Add voir dire questions that address actual
jury Internet use (will they be likely to violate
the rule and/or have they already done so?)
• Ask in voir dire whether jurors would abide by
judicial instructions not to do Internet
research on the case. If a juror acknowledges
they could not abide by that instruction, they
are a cause to strike. See Example:
17. Possible Court Administration-Led
improvements (Cont.)
• Note the experience of an attorney in a Kansas
City trial:
“During voir dire, we asked whether jurors
would abide by instructions to not do research
on the Internet, and probably six to 10 potential
jurors said they could never abide by that.”
18. Possible Court Administration-Led
improvements (Cont.)
• Revise jury instructions with specific language
about electronic device usage
(iPhones, Blackberrys, and other smart
phones), Internet research
(Google, Yahoo, Bing, etc.) and social networking
applications (such as Facebook, Twitter and
MySpace).
• Repeat the Instructions, at the start of the day
and at the end of the day, at breaks and recesses.
Leave the instructions fresh in the minds of the
jurors.
19. Possible Court Administration-Led
improvements (Cont.)
• Have jurors sign declarations that they will not
research the case details on the Internet.
• Education of 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.
20. Possible Court Administration-Led
improvements (Cont.)
• 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.
21. Possible Court Administration-Led
improvements (Cont.)
• Make it clear that violations of these rules are
a violation of the law, for which punishment
can be imposed. Make it important, not pro
forma, and not merely polite.
• Satisfying the jurors’ reasonable “need to
know” can gain compliance with the rules.
(a) Historically, jurors are told what they can’t do or
what they can’t know, without explaining why that is
the case. . . .
22. Possible Court Administration-Led
improvements (Cont.)
• Many jurors take the position of “Really?”
Alright, if you won’t tell me I’ll find out for
myself!” The level of information provided by
the judge is usually discretionary, and many
judges are beginning to explain the reasons
for the rules. For example,
1. Why no Internet research? “In court, anyone
who is accused of something deserves the right
to face their accuser. . . .
23. Possible Court Administration-Led
improvements (Cont.)
. . . We can’t try people by rumor or innuendo.
And we can’t put Wikipedia on the stand and
question why they say what they do…”
2. Insurance coverage can’t be considered?
“The reason this can’t be considered is that the
insurance companies have a right to claim any past
expenditures they have made in the case, if the
lawsuit results in an award for something they have
paid. So it isn’t fair or reasonable to consider
insurance coverage.”
24. Possible Court Administration-Led
improvements (Cont.)
(b) Allow questions by the jury. To the
extent that they have reasonable and proper
questions for witnesses, they are less likely to
conduct research on their own if the witness
addresses them more completely. Also, they
feel more fully engaged in the process, rather
than a passive (if not captive) observer.
25. Judicial action
• Training on social media and juror motivations
• Update preliminary instructions and emphasize
importance of fair trials
• Remind jurors of your instructions at beginning
and end of each trial day
• Consider posting a notice re: social media in the
deliberations room
• Answer juror questions during deliberations or
give an explanation if you cannot give them an
explicit answer
26. Consequences for Juror Misconduct
• Process: Inquire of juror under oath (appoint
counsel?) as to what happened, with counsel
and parties present
• Follow case law regarding mistrials
• Juror sanctions: contempt?
Fines
Write paper on fair trials & due process
Other
27. Reconsidering the Paradigm
• Should we allow Internet research during trial
if jurors are going to do research anyway?
• Establish a Task Force to evaluate these issues
and make recommendations to the Supreme
Court
• Develop better jury instructions
