Stroock & Stroock's Joel Cohen
Katherine A. Helm
Since the dawn of the jury trial -- circa the Magna Carta -- the legal system has fought to keep jury decisions "pure." The quintessence of this somewhat epistemological mandate is that jurors must remain impartial and unbiased free agents. And so judges and litigators must struggle against the overwhelming capacity of "outsiders" to bias or game the jury's sacred, ostensibly monastic, role in deciding the fate of a litigant, civil or criminal.
Sometimes the protectionist need becomes even greater, e.g., in mafia cases, where judges may order sequestered or even anonymous juries to ensure jurors aren't cajoled or threatened into submission. The larger, and more frequent, problem arises in high-profile cases, like that of Martha Stewart or Barry Bonds. Media outlets -- from tabloids to fan sites to investment watchdogs to major news networks -- cover celebrity trials with fervor and provide up-to-the-minute updates via live blogging.
The presiding judge may not control the presence (or may not wish to hold a First Amendment hearing on the issue) of technology in the courtroom gallery. Judges may, however, issue gag orders at their discretion to prohibit counsel from talking about the trial outside the courtroom. And judges must instruct jurors to avoid reading or participating in any trial coverage or even talking to their spouses about it. Few judges truly believe that jurors follow these rote instructions in full order -- it's a fiction the justice system lamely endorses.
Theoretically, jurors know what they observed in the courtroom and are told that only courtroom evidence should be considered, so what's the problem? It really shouldn't matter -- should it? -- when a reporter "tells" the juror what he saw that day. Or when the juror's spouse expresses his or her view; after all, they weren't in court. Shouldn't the jurors be able to parse apart and disregard the misinformation?
Some jurors may feel marginalized when told this role, of determining the admissibility of evidence, must be left to the judge alone. Why shouldn't jurors be granted a more participatory role in the process, to look beyond a "censored" set of information controlled by a judge and lawyers? Well, imagine watching a presidential campaign debate and then deciding for yourself who won. Then suppose you become enrapt in post-debate briefing by political commentators discussing what you really saw. Then try saying you weren't at all influenced by what they had to say.
The point is that not all information is created equal. While the technological revolution may have enabled a lofty goal of "democratizing" ideas -- e.g., witness the Iranian election protests being mobilized online -- there are times and places where access to information must remain steadfastly controlled. Such times are jury trials and such places are courtrooms. It is wrong, indeed it violates a defendant's constitutional rights, to allow jurors to do their own research to uncover "the whole truth." Jurors should not read up on the case online just as they should not go to the crime scene to check things out. They must only consider and trust the evidence presented and fairly addressed by both sides in court.
No doubt, some jurors probably trust what they themselves can find online over anything any lawyer says in court. Such biases should be given the chance to come out during voir dire and a judge, or her law clerk, should remind jurors of the venerable purpose of a public trial by jury, to safeguard civil liberties and prevent government oppression. There is nothing so innovative about the Internet that alters these noble principles.
The potential jury contamination problem becomes more insidious when jurors themselves contribute to the un-vetted admission of "evidence" into cyberspace via social media, e.g., the microblogging service Twitter. A Twitter feed provides constant online connectivity with those one is "following" and one's own "followers," which may not only eviscerate certain personal liberty notions but also foster delusions of grandeur for those seeking a following. Twitter now enables even the nerd-like, hitherto meek, juror to gain instant celebrity -- his Warholian "15 minutes."
This is not the juror in a high-profile case who planned at the outset to keep a diary and later write a sensational "tell-all" about the trial of the decade. She's a problem indeed -- those deliberations are fatally vulnerable to her goal to sell books. But few jurors sit in history-making cases and so the fame issue has evolved, along with the technological context in which people relish their self-importance and act to make themselves the storyteller.
Jurors, in everyday cases, who choose to "tweet" their experiences to their extended social networks by text message, e-mail or Web posting take part in jury-rigging the system in a whole new way. This technology head-on confronts the epistemological notions of purity, of the whole truth and of traviamento -- leading others astray, through one's flittering thoughts and aberrant musings via tweets. The juror who twitters in court or after the court day can convert his run-of-the-mill case into personal celebrity by enticing others to follow his live stream of scintillating missives. He can make himself a star -- the jury's quarterback, or its fulcrum if you will -- in even the penny-ante case: "I'm the Sandra Day O'Connor or Anthony Kennedy on my jury."
This goes beyond a juror telling a spouse over dinner, or a couple of buddies at the local pub after a long, hard day in the jury box, how important he is to the deliberative process. This Twitterer might tell hundreds or more of his Twitizens about his "one angry man" status. If Ashton Kutcher broadcasts to some 3 million "followers" about his choice of breakfast cereal, who knows how many followers Juror X can get to self-assemble simply by tagging his tweets with a popular keyword? Innumerable virtual strangers can then respond with their unguided, irrelevant, prejudicial or inaccurate opinions, about potential life-and-death matters, that have no business whatsoever in the jury process.
Is Juror X intending to be a roguish scofflaw, by perpetuating such hyper-connectivity during his jury service, or could it be that he truly doesn't know any better? Jurors are a microcosm of society, after all, where digital intimacy is becoming the social norm.
In 1771, John Adams taught us it is "not only [the juror's] right, but his duty, in that case, to find the verdict according to his own best understanding, judgment, and conscience ... " If the conscience of the jury is to remain the putative yardstick of justice, the voir dire process must include instruction on the non-disclosure rule as it applies to nascent technologies. Jurors are not expected to know the Federal Rules of Evidence; indeed, anyone too familiar with the law will likely get screened from a venire. Judges should also instruct the empanelled jury on why legal rules circumscribing the admission of evidence are designed to ensure a fair trial. Absent this clear understanding, jurors may have trouble delineating what part of their "understanding, judgment and conscience" they can bring to bear on the case -- given that people consider their iPhone and Google part of their knowledge-access system as much as their own brain.
Because courts are the last bastion of controlling access to information, jurors need to know that the law denounces the Twitter-propagated state of "ambient awareness" as a potential basis for jury nullification. Jurors must receive strict instruction not to supplement the courtroom evidence with their own preconceptions, or post-conceptions based on Twitter feeds, about the law or the facts of the trial to decide the case.
Judges can then ensure that "what happens in the jury room stays in the jury room" (at least until the trial is over) with appropriate sanctions. If a juror violates the sanctity of his service at search-engine speed, after having been instructed on the non-disclosure rule and use of technology in the courtroom, zero tolerance may be the only option. One stiff and highly publicized contempt order against an offending juror can be worth a thousand toothless admonitions against breaching an old-fashioned obligation to do justice.
A call to perform jury duty is not a casting call. It may be the only public service one is ever called upon to do in this country, given our lack of mandated public service in other arenas. Maintaining ambient awareness is no more a right when performing that sacred service than it is when being paid to perform one's day job. No matter how you re-brand it, no matter that members of Congress are doing it in another branch of government, keeping up the "buzz" during a trial is simply unjust.
Joel Cohen is a partner in the New York office of Stroock & Stroock & Lavan, where he practices white-collar criminal defense law. He is a former New York state and federal prosecutor and is an Adjunct Professor of Professional Responsibility at Fordham Law School. He is a frequent commentator and lecturer on criminal law and legal ethics. He can be reached at jcohen@stroock.com. Katherine A. Helm is a law clerk for a U.S. district court judge in San Francisco. She previously worked at a large New York City law firm for five years. She has published numerous articles and commentary on legal issues. She can be reached at kassie.helm@gmail.com.
