The Googling Juror – Update

It was as clear as crystal that my discussion of the Googling Juror and the reasons why jurors go on-line was not going to be the last word on the subject and indeed discussion and debate can only assist in seeking solutions for preserving the principles underlying the jury trial in a new information paradigm.

To assist in that discussion and debate I have decided to post a few references that have come across my desk since I wrote the article as much to keep the research and the issue up to date as to inform further debate. Some are academic – others are in the nature of news. Some pre-date my article – mea culpa – I should have picked them up.

A helpful overview is a piece entitled “The Wired Juror Unplugged” by Susan McPherson and Beth Bonora from the Issue of Trial for November 2010. In a well documented piece they discuss the problem and emphasise the importance of telling jurors WHY they should not go on-line for information about the case or the law.

” The rapidly changing ways that people learn are clearly creating significant challenges for judges and trial lawyers. But the ways in which we choose to respond could well improve jurors’ level of comprehension and their overall experience in deciding cases. If lawyers attempt to engage jurors in a deeper understanding of the trial process and their role in it—and treat their curiosity and desire to make fully informed decisions with respect— jurors may be more motivated to play by the rules.”

The article includes some draft jury instructions, although the source for these is not credited. I assume that they have been crafted by the authors.

Marcy Zora has written a piece in the University of Illinois Law Review entitled “The Real Social Network: How Jurors’ Use of Social Media and Smart Phones Affects a Defendant’s Sixth Amendment Rights” (2012) U Ill L.Rev 577. The article advocates a “consequences” approach for juror research rather than preventative efforts. The abstract states:

” Internet resources, particularly when combined with new technologies such as smart phones with web-browsing capabilities, provide jurors with a new avenue to do independent research on the defendant or the case, or to communicate trial-related material before deliberations are complete, both of which violate a defendant’s Sixth Amendment rights. This Note analyzes the different approaches courts have taken in combating such violations, including the use of more specific jury instructions, restriction of juror access to electronic devices such as smart phones, use of voir dire to exclude “at risk” jurors, and monitoring of juror Internet activities. Ultimately, this Note argues that jury instructions, prohibitions on electronic devices in the courtroom, voir dire, and monitoring are insufficient to protect defendants’ Sixth Amendment rights. Courts, rather, should establish specific punishments for engaging in these prohibited activities, ensure that the jurors are informed of the punishments, and take a more proactive approach toward identifying violators by questioning jurors throughout the trial process.”

Ralph Artigliere, Jim Barton and Bill Hahn consider the issues in their article “Reining in Juror Misconduct: Practical Suggestions for Judges and Lawyers” (2010) 84 Florida Bar Jnl 8. The voir dire process – not used in New Zealand and other Commonwealth countries – is emphasised. The article concludes:

“Because juror misconduct threatens the fundamental fairness of a trial and is a due process issue, judges and trial lawyers should consider methods supplemental to the current standard and routine jury instructions throughout the trial. Practical methods to reduce juror temptation, such as taking away cell phones and other digital devices during deliberations, are needed in light of the current culture and technology that constantly connect jurors to other people and the Internet. Clear, strong instructions with follow up and reminders from the judge and the lawyers that clearly define right from wrong and disclose the consequences to jurors are part of the solution to reduce as much misconduct as possible. While the standard instructions are being considered for revision, judges and lawyers must be attuned to ways to minimize intentional or unintentional behavior which, left unchecked and unaddressed, will undermine fairness of jury trials. Judges and lawyers who learn better ways to address these issues should share them with the common goal of eliminating as much juror misconduct as possible from trials.”

Daniel A. Ross in the New York Law Journal for 8 September 2009 writes about juror abuse of the Internet. The article looks at the issue of jury instructions and Court policies on the use of electronic devices. The voir dire process is also considered. But the underlying message is the need for adaptation to the new technological environment.

Regardless of the precautions taken, it is unlikely that judges or lawyers will be able to eliminate juror misuse of the Internet, and they should adjust to a world in which control over information to or from jurors is much less effective than it was before the advent of Google, Facebook and the next emerging technology.

In an article entitled “Federal Judges on Guard Against Juror’s Social Media Activity” Mary Pat Gallagher examines a national survey of Federal judges which finds that there are concerns about juror use of social media and the steps that are being taken to address the problem. The article appears in the 29 March 2012 issue of New Jersey Law Journal. It is available via LexisNexis.

The importance of juror engagement in the trial process and steps that have been taken in Michigan to enable this are the subject of an editorial by Linda Mah in MLive for 17 September 2012 entitled “Courts’ Efforts emphasize the right and responsibilities of jury duty.” 

The editorial notes:

The Michigan Supreme Court deserves praise for a recently launched program that brought changes to the jury system to help jurors feel as involved as possible and to broaden the tools they have with which to decide a case….

In 2009 and 2010, the Michigan Supreme Court organized a pilot program that allowed judges to test proposed reforms in their courtrooms during actual trials. Among the initiatives were to allow jurors to submit questions for the witnesses and to discuss evidence among themselves prior to final deliberations.

The pilot program led to the adoption of “a comprehensive package of jury reform court rule amendments in September 2011, according to the Supreme Court news release.

The Akron Legal News for 18 September 2012 reports on the development of Federal model instructions and refers to the report of the  Conference of Court Public Information Officers (CCPIO) . The article notes:

A proposed new set of jury instruction for federal courts has been issued by a federal Judicial Conference Committee that relates with the fact that jurors bring their phones with them to court.

The proposed model instruction, which follows numerous state courts’ attempts to deal with this issue, would add about two pages to a standard jury instruction, one each at both the start of the trial and at the close of the case.

The model instruction follows in the footsteps of many state courts, which have been giving these sorts of jury instructions for a long time.

Concerns about the impact of social media in jury trials are not restricted to the United States. In Australia Attorneys-General have formed a task force to consider social media regulation and possible law reform following an online outpouring of grief and anger, in a murder case that has highlighted both the strong benefits and sharp risks of social media reporting on criminal investigations and prosecutions. Within minutes of the arrest of the man who was ultimately charged with the rape and murder of a young woman in Queensland, the grief and anguish earlier expressed on social media gave way to angry posts that included calls for the accused man to be tortured and “lynched.” There were also many posts that subsequently revealed the man’s face and speculated about a criminal history — posts that Australian media law experts argued could derail his trial. This is because of Australian sub judice contempt law that strictly regulates publication in the state in which a case is to be prosecuted. The article “Trial by Social Media Prompts Clash Over Accused Murderer” was published on the MediaShift website on 12 October 2012.

The whole issue of juror misconduct and how to deal with it has exercised the minds of judges in England. In November a protocol was issued by the President of the Queens Bench Division dealing with jury irregularities in general.

A “jury irregularity” is defined as:

“….anything that may prevent a juror, or the whole jury, from remaining faithful to their oath or affirmation as jurors to ‘faithfully try the defendant and give a true verdict according to the evidence’. Anything that compromises the jury’s independence, or introduces into the jury’s deliberations material or considerations extraneous to the evidence in the case, may impact on the jurors’ ability to remain faithful to their oath or affirmation.”

The protocol deals with two phases in which jury irregularity may occur – during the course of the trial and after the verdicts have been returned. The protocol is wide and covers more than the problem of “The Googling Juror.

The National Center for State Courts produces some interesting material on this topic. On the wider issue of increased engagement by Court leaders a paper by Garrett M Graff is interesting and though-provoking. Entitled “Courts are Conversations: An Argument for Increased Engagement by Court Leaders”, Graff takes the Cluetrain Manifesto as his starting point. In essence the Manifesto has come to define communication in a connected world. Although the Manifesto has markets as its emphasis, it makes the point that a global conversation has begun, enabled by the Internet. Interstingly, the Manifesto was published in 1999 before Web 2.0 ushered in the era of interactive connected communication.

Graff points out that the Courts have been a little slow to embrace social media but observes that communication is central to a court’s very being. In fact, courts are among the most critical forums (sic) for conversation in a civilized society.

One issue addressed by Graff, and which I have commented upon in my post “Why Do Jurors Go Online”, is that of user expectations in the digital paradigm.

As a new generation arrives with different expectations for conversations and interactions, courts now  face a fundamental challenge: How do they listen better to a public now used to conversing in different ways, on different platforms, and with different tools?
What we’re witnessing today represents fundamental changes in communication and behavior for a new generation. The legal system runs a serious risk that this new generation will find courts increasingly out of touch, bearing little resemblance to their lives or their chosen means of communication. To a generation raised with free-wheeling, constant, global communication, courts—with their traditions and structure—may seem as anachronistic as the oncepracticed legal tradition of tying a suspected witch to a stone to see if she sinks.

Not only must Courts understand how people are using communication tools, they must become more adept at using them themselves. The article concludes:

These new rules play out in the news on an almost daily basis, from Egypt’s Tahrir Square 
to Anthony Weiner’s Twitter feed,from the back alleys of Syria to Iowa’s Supreme Court retention election. While these disruptions have had some positive impacts—ensuring, for instance, a more responsive democracy and one where many more voices have an opportunity to be heard—this increased vulnerability for incumbents and institutions has troubling implications on judicial independence.

The answers here are much more unknown and yet the window for engagement is rapidly passing. The legislative branch and the executive branch are forging ahead. The judicial branch cannot cede all of this territory, all of these online conversations, to the other branches of government without a real cost to judicial independence. Courts cannot be left voiceless in this new world. While it’s important for the judicial branch to appear to be in touch with advances in communication, certainly, the challenge presented by the social media revolution is more fundamental than merely hopping on the hot new tech trend. The Cluetrain Revolution is altering the expectations and habits of society. The ability of courts to execute their intended functions and to achieve their stated goals of dispute resolution and justice-seeking, will be contingent upon how smartly and thoughtfully they meet society’s new expectations.

At some point in the not too distant future—perhaps this year, perhaps next, but for sure in the next five to ten years—every court will be confronted with a scenario that requires a thoughtful online communication strategy, one that incorporates YouTube, Facebook, Twitter, Tumblr, and platforms that today we can’t even imagine, into a coherent media apparatus. As any expert in crisis communication will attest, that future point will be too late to begin figuring out this world. On the day that it’s needed, the courts will already need to have the infrastructure and the following in place.

There is no silver bullet, no single correct answer for every state and every court. Instead, it is necessary for each court in every state to begin engaging as soon as it can.
Don’t wait. The world has already changed.

Finally an article in the Guardian entitled “Juries and Internet Research: We Need to Ask More Questions” (9 November 2011) refers to a valuable piece of research by Paula Hannaford-Agor, David B. Rottman and Nicole L. Waters entitled “Juror and Jury Use of New Media: A Baseline Exploration” published by the National Center for State Courts.

The US pilot study looked at a small sample of jurors in 15 civil and criminal trials in Connecticut, Florida, Michigan, Pennsylvania, Texas and Virginia. Judges, lawyers and jurors were asked to fill in questionnaires concerning new media use during the trials.

They found that 44% of jurors would like to use the web to research legal terms; 26% to find out more about the case; 23% to research the parties; 23% the lawyers; 20% the judge; 19% the witnesses and 7% their fellow jurors.

8% wanted to email their family about the trial; 5% wanted to connect with another juror; 3% wanted to connect with a trial participant, tweet or blog about the trial.

The report came hot on the heels of the case of Stephen Pardon who was jailed for four months for contempt for disclosing details of jury deliberations to a defendant. A further case involving social media use by journalists may yet come before the Courts.

The English attorney general Dominic Grieve has to decide whether to prosecute a journalist who allegedly tweeted material that breached the Contempt of Court Act during the trial of Vincent Tabak.

The tweets concerned pornography on Tabak’s laptop – evidence that had been ruled as inadmissible at his trial – and Grieve’s decision will be watched closely by an industry that has seen contempt of court re-emerge as a legal threat to publishers after years of dormancy.

There can be no doubt that the variety of uses of New Media by both jurors and others involved in the Court process is challenging. The writers of the Baseline Report published by NCSC recommend a wider study. Certainly there is a problem. Such studies can only enhance our understanding of the extent of it.