Sharing the minutest details of our lives through mobile telecommunications has become second nature in the Information Age. And it has posed new challenges to the administration of the jury trial, forcing a shift in the scrutiny of jury behavior from the visible world to the digital.

The indiscriminate use of blogs, tweets and text messages is assailing the sanctity of deliberations and threatening the constitutional rights of criminal defendants to a fair trial. As courts attempt to come to terms with technologically empowered jurors, new approaches and assumptions about the jury trial will be needed.

In a spate of recent cases, the online behavior of sitting jurors has prompted defendants to challenge the fairness of verdicts in criminal and civil cases.[FOOTNOTE 1]

In an Arkansas lawsuit by investors against the owners of a company that produced a new type of insulation foam, one of the jurors was found to have used the Twitter microblogging service to send messages about the case at various times.[FOOTNOTE 2] The defendants, facing a $12.6 million judgment, contested the juror’s fairness and impartiality. However, the court denied their motion for a new trial.

At an inquiry hearing, the juror testified that the tweets were innocent, e.g., announcing his selection and later what he had for lunch. The substantive statements about the case were not sent until after the verdict. Therefore, the court found no basis for prejudice.

After being convicted of fraud and other federal crimes, a former Pennsylvania state senator is asking for a new trial.[FOOTNOTE 3] Among the errors listed was the trial judge’s failure to remove a juror who posted updates about the deliberations on Twitter and Facebook.

In some courts, cell phones and other mobile devices have been banned or confiscated for the duration of deliberations[FOOTNOTE 4] and in Canada there has been a recommendation to restrict wireless network access in the jury room.[FOOTNOTE 5]

Targeted jury instructions are another approach.[FOOTNOTE 6] In the criminal prosecution over the handling of the Brooke Astor estate in New York City, the judge admonished potential jurors not to do any Internet research on their own or to share information about the proceedings via blogs.[FOOTNOTE 7]

The hallowed ground of jury deliberations makes it difficult to unearth, preserve and authenticate surreptitious electronic communications and Web postings or to seek redress when they are uncovered. The potential prejudice to the integrity of the process implicates basic fairness embodied in due process, right to a jury trial, confrontation and cross-examination.

In United States v. Siegelman, 2009 U.S. App. LEXIS 5369, at 64-72 (11th Cir. 2009), the defendants were convicted on federal charges of bribery, mail fraud and conspiracy, and asked the judge for a new trial based on allegations of juror misconduct. In particular, they claimed that during the presentation of evidence and deliberations some members of the jury had been sending each other e-mails. The information had been anonymously disclosed to the defense.

According to the defendants, the e-mailing violated the Sixth Amendment by promoting premature deliberation and decision making by less than all the jurors. Citing U.S. Supreme Court precedent and Federal Rules of Evidence 606(b) (discouraging the use of juror testimony to impeach their verdict), the U.S. Court of Appeals for the Eleventh Circuit ultimately rejected their motion. Preserving the finality of the jury’s decision was paramount and could only be challenged by evidence of “extraneous prejudicial information” or “outside influence.”

Moreover, the authenticity of the e-mails had not been established. And the court denied a defense discovery request for records from the Internet service provider as too intrusive. Assuming arguendo that the e-mails were admissible, the trial judge held that their contents did not show premature or inadequate deliberations.

And the appeals court found no prejudice after taking into account the “totality of the circumstances,” i.e., strength of the case, length of deliberations and jury charge prohibiting premature deliberations. They concluded that the trial court did not abuse its discretion in denying defendants’ motion.

Notably, the Eleventh Circuit did agree with the trial court’s conclusion that e-mailing between jurors during trial and deliberations was misconduct; however, the evidence in this particular case did not warrant an investigative hearing or new trial.

On the other hand, when a juror in a British child abduction and sex assault trial posted information about the case (including a poll on defendants’ guilt) on her Facebook profile, she was removed from the jury.[FOOTNOTE 8] A court official had received an anonymous tip, but the information was purportedly posted on the public portion of her page.

AMPLE PRECEDENT

Under N.Y. Criminal Procedure Law §270.40, once the jury is sworn, the court must give instructions that: “jurors may not converse among themselves or with anyone else upon any subject connected with the trial; that they may not read or listen to any accounts or discussions of the case reported by newspapers or other news media.”

Web 2.0 has expanded and personalized our sources of information blurring the lines between traditional news media and privately published accounts.[FOOTNOTE 9] At the same time, mobile media has subtly transformed the art of conversation. Nonetheless, there is ample historical precedent to guide courts in responding to the abuse of communication technology by jurors.

More than half a century ago, the Appellate Division, Second Department, in People v. Migliori, 269 A.D. 996 (2nd Dep’t 1945), reversed a conviction for withholding stolen property because the trial judge mistakenly permitted jurors to make phone calls during deliberations. Court officers were the proper conduits for such communications, which is the standard embodied in the current statute, N.Y. Criminal Procedure Law § 310.10(1).

Again in People v. Brown, 38 A.D.2d 651 (3rd Dep’t 1971), a juror was accused of using the phone during deliberations. The defense moved for a mistrial. Acknowledging that a conversation took place, the trial court performed its “own investigation” and denied the motion. The Third Department did not approve of the procedure.

The judge’s private inquiry denied the defendant a chance to participate or question the juror who made the call or the deputy who allowed it. The exclusion of the defendant and reliance on the judge’s independent investigation did not satisfy due process. The case was remanded for a full hearing.

Similarly, in a Brooklyn homicide trial, People v McCurdy, 86 A.D.2d 493 (2nd Dep’t 1982), defense counsel had witnessed a juror making a phone call during deliberations an hour before the verdict. Based on statements from a court officer and the juror, the judge determined that the actions were not prejudicial.

There was also an affidavit from a newspaper reporter that suggested the juror had made more than one call at the time. Before sentencing, defendant’s lawyer moved for a full hearing, but the motion was rejected.

Citing section 310.10′s proscription against jurors speaking to outside persons during deliberations, the Second Department declared the trial judge’s inquiry insufficient to allay fears of prejudice. It recommended that the court identify the other persons spoken to and the topic of their conversations. And added that it might be useful to ask the other jurors about their observations.

The brief questioning by the trial court in McCurdy was not enough to decide if there was misconduct and whether it was prejudicial. A full hearing was needed. Although a new trial was ordered on other grounds, the appellate court recognized that the issue was important enough to merit attention.

OPEN ACCESS

Communication technology empowers jurors to bring more than their “everyday experiences” into the courtroom. And this open access to outside sources of information, along with the sharing of intra-jury activities, can fit into existing models of juror behavior, such as individuals improperly tapping into their professional knowledge in reaching their verdict.

In People v. Maragh, 94 N.Y.2d 569 (2000), New York State Court of Appeals reckoned with the problems created by jurors who relied on their expertise, not their common experiences. In this homicide case, the defense discovered that two jurors used their medical knowledge in assessing the victim’s cause of death, despite the testimony of trial experts. Several newspaper articles helped uncover their conduct.

The Court reiterated the rule that a jury verdict could not be impeached unless there were “improper influences.” And these assessments had to be done on a case-by-case basis.

In Maragh, two jurors were nurses, and their actions were based on knowledge outside a person’s “everyday experience.” When they expressed an opinion drawn from their medical expertise, they became unsworn witnesses and introduced nonrecord evidence into the deliberations. In effect, they violated the defendant’s rights to confrontation and cross-examination.

The “forbidden step” taken by these jurors was considered the equivalent of an ex parte communication, undermining the integrity of the deliberative process. And the fact that this eventuality may have been revealed during voir dire without objection did not shield their misconduct during deliberations.

The court was careful to draw a line between life experiences and unacceptable professional experiences as a basis for jury decision-making. Our Internet culture has enlarged the knowledge base of anyone with a smartphone. It opens up the possibility that a juror might take a “forbidden step” by contacting a “lifeline” during deliberations.

‘EXTRANEOUS INFLUENCE’

Courts have already held that substantive conversations between jurors and outsiders can meet the definition of “extraneous influence.”

For example in People v. Marrero, 83 A.D.2d 565 (2nd Dep’t 1981), the defendant’s manslaughter and assault convictions were set aside based on evidence of juror misconduct revealed through a post-trial hearing.

“[P]rior to deliberations the jurors and alternate jurors engaged in extensive discussions of the evidence in the case, the credibility of the evidence, the nature of the neighborhood where the crimes occurred, the involvement of defendants and witnesses in street gangs, and the purported characteristics of Puerto Rican street gangs,” the court said.

The core of their conversations concerned the essence of the facts and issues to be decided by the jurors alone.

Bloggers have the capacity to chronicle everything, and their journaling does not stop at the courthouse steps. While juror blogs and social profiles are turning up in the aftermath of post-verdict investigations, this digital stream of consciousness might never come to light without anonymous tipsters, news media and other monitors of jury behavior.

CONCLUSION

Jury deliberations are the most important and private part of a criminal trial. Yet personal communication technology may be hastening and contaminating the deliberative process.

More powerful than any rule of courtroom conduct are human curiosity and the overwhelming need to share our experiences. Easy online access and convenient communication technology have circumvented the abilities of courts to completely insulate deliberations from the outside world.

Well-crafted voir dire, thorough jury instructions, and oversight of electronic juror conduct may ameliorate some of the concerns but only full investigative hearings can redress allegations of Web-tainted verdicts and constitutional violations.

Ken Strutin is director of legal information services at the New York State Defenders Association.

::::FOOTNOTES::::

FN1 See generally “Commentary: Twitter and Tweeting During Jury Service,” Daily Record, April 20, 2009; “As Jurors Turn to the Web, Mistrials Are Popping Up,” The New York Times, March 18, 2009.

FN2No New Trial Over Juror’s Tweeting,” Northwest Arkansas Times, April 4, 2009.

FN3Fumo Seeks an Order for a New Trial,” Philadelphia Inquirer, April 23, 2009.

FN4Juries v. Technology: Secrecy Bubble Bursting,” Beaver County Times, March 30, 2009.

FN5Model Wireless Networking Policy for Canadian Courts” (Canadian Judicial Council Aug. 28, 2008) at 4.

FN6 See, e.g. “The Move to Silence Juror Twittering,” Wisconsin Law Journal, April 20, 2009.

FN7Judge Tells Potential Jurors in Trial of Philanthropist Brooke Astor’s Son to Put Away BlackBerrys,” New York Daily News, March 31, 2009. See “Jury Selection Questionnaire Delays Start of Trial of Socialite’s Son, Lawyer,” New York Law Journal, April 9, 2009.

FN8Trial Juror Not Punished for Facebook Postings,” The Independent, Dec. 17, 2008.

FN9 See generally How Noninstitutionalized Media Change the Relationship Between the Public and Media Coverage of Trials, 71 Law & Contemp. Probs. 135 (2008); “A New Headache for Courts: Blogging Jurors,” National Law Journal, March 19, 2007.