Several recent developments prompted this writer to revisit a topic my prior columns have addressed. In November 2011, the Federal Judicial Center issued its report, “Jurors’ Use of Social Media During Trials and Deliberations,”1 the result of a survey questionnaire sent to all active and senior federal district judges, 952 in all. A total of 508 judges responded with some 94 percent of them saying that they have specifically barred jurors from case-connected use of social media, most commonly via jury instructions and reminders on a regular basis.

Only 30 of the federal judges reported instances of “detected” social media use by jurors. However, the critical reader looks at the word “detected” and wonders whether Internet misbehavior abounds but slips under the radar. The judges acknowledged that it is “difficult to detect inappropriate use of social media.” Six percent, or some 30 judges, indicated they have not specifically addressed the problem. The report details the preventive measures judges have used.2

Nevertheless, and despite state courts’ efforts to adjust their judicial practices as well, case decisions and news reports of rampant juror misbehavior continue to be published, reflecting that the problem is growing. Recently, trial judges have written articles illustrating the types of misconduct and what practical steps should be considered. Indeed, in a November 2011 criminal case, U.S. District Judge Shira Scheindlin of the Southern District of New York used the creative device of a signed “Juror Pledge” to avoid Internet research and improper communications. More about this later in this article. First, how serious is the problem?

In August 2003 in our article, “When Jurors Surf the Internet (and Shouldn’t),”3 we reported on an already growing phenomenon of jurors or potential jurors easily gleaning extraneous prejudicial information from the Internet. In October 2009 we revisited the subject observing that both the opportunity as well as juror straying had increased.4 Thus, it was not surprising to find abundant examples where jury forays onto the Internet raised vexing questions of prejudicial trial proceedings, including a products liability case, Russo v. Takata Corp.,5 in which a defense verdict for a seat belt manufacturer was set aside because a juror performed a Google search during a critical stage of the deliberations.6

In April 2010, our column, “Interviewing Jurors After Trial,”7 examined the practical challenges to counsel and the courts in uncovering juror misconduct. After all, in some jurisdictions, questioning jurors after trial is forbidden, at least without securing court permission. And even where jurors may be interviewed, post-trial challenges to the verdict are constrained by Federal Rule of Evidence 606(b) and its state law counterparts. A very limited exception allows a juror to testify regarding whether “extraneous prejudicial information was improperly brought to the jury’s attention” or whether “an outside influence was improperly brought to bear on any juror.”

The race against the clock is another formidable hurdle because challenges based on juror prejudice become less attractive to judges after the jury has been discharged. Obtaining meaningful interviews and affidavits often takes time. But this reality clashes with a natural reluctance by judges to call back jurors for inquiries into proceedings that quickly become stale.8 Juror strayings onto the Internet may amount to “extraneous prejudicial information” so lawyers ought to be exploring that phenomenon rather aggressively.

New developments confirm prior trends toward increasing misconduct. On April 20, the U.S. Court of Appeals for the Fourth Circuit in United States v. Lawson,9 overturned a federal criminal conviction because a juror performed unauthorized research of the definition of one element of the offense on Wikipedia, an “open access” Internet encyclopedia. In addition to the problem of an “extraneous influence,” the court expressed concern about the reliability of Wikipedia entries, where largely anonymous Internet volunteers can write and make changes to Wikipedia articles (except where editing is restricted to prevent disruption or vandalism). About 91,000 editors—from expert scholars to casual readers—regularly edit Wikipedia. Ironically, in a footnote the appellate court admitted that it had itself cited Wikipedia as a resource in three cases.

In an Associated Press posting on April 21, citing the Fresno Bee, a Fresno, Calif., judge reportedly ordered a new trial for a convicted killer after learning that the jury foreman brought legal documents into the deliberations room. He obtained them online from Nolo.com and Wikipedia and passed them out to fellow jurors. The Superior Court judge agreed that the documents served as a “quasi 13th juror.”

Juror Research

In April, in Pennington v. Bickell,10 a federal district judge in Pennsylvania adopted a U.S. magistrate judge’s decision denying a petition for writ of habeas corpus from a state court conviction for murder. The petitioner argued that a state juror did Internet research on the definitions of different degrees of homicide. In an evidentiary hearing, the juror testified that she accessed the Internet at her home during a recess in deliberations and found that the definitions were the same as those given by the trial judge during final instructions. She did not print out the definitions from the Internet site or share the information with other jurors. The trial court found that the defendant failed to establish prejudice from the juror’s behavior.

In January, in State of Vermont v. Abdi,11 the Vermont Supreme Court reversed a conviction for sexual assault on a child. The defendant was a Somali Bantu immigrant and most of the witnesses were Somali Bantu. One of the jurors, while at home, researched about the Somali culture and religion and shared that information with other jurors. Because the Somali Bantu religion and culture “lay at the heart of this case,” the court could not conclude that the outside information had no impact on the verdict. The court noted “the increasing problem of jurors consulting the Internet for outside information,” citing an A.L.R. 6th Annotation, “Prejudicial Effect of Juror Misconduct Arising From Internet Usage.”12 Although Vermont trial courts routinely admonish jurors not to consult outside sources, the court suggested it was time to consider “a stronger and more technology-specific admonition similar to the standard instruction employed, for example, in Colorado.”13

In England, a university lecturer named Theodora Dallas reportedly caused an assault trial to stop because, while serving as a juror, she researched a defendant’s past on the Internet and discovered that he had previously been acquitted of rape—information not admitted in the assault proceedings. She shared her findings with fellow jurors who informed the judge. Dallas was charged with contempt of court after the case was referred to the attorney general in order to set an example. Her excuse—she claimed she had not understood Internet searches were banned since “sometimes my grasp of English is not that good”—was rejected by three senior judges who held that her actions undermined the jury trial system. Saying that Dallas “deliberately disobeyed” the trial judge’s instructions not to search the Internet, the court sentenced her to six months jail time, with three of those months to be served and “on license” for the remainder of the term.14

Recently, retired judges have offered observations about the growing problem of juror strayings onto the Internet and social media with various suggestions about what might be done. Maryland Judge Dennis Sweeney, in his December 2010 article, “Social Media and Jurors,”15 reports that courts are seeing more of what he calls “wired” and “connected” jurors. He says that, in a political corruption trial he presided over, the conviction of Baltimore’s mayor was challenged when it was learned that during trial and deliberations five of the jurors had “friended” each other on Facebook and engaged in discussions posted on their pages in violation of the court’s explicit instructions not to engage in discussions about the case on social media sites.

He reported other examples and suggests: (1) better education of prospective jurors; (2) orientation with written and oral instructions on the first day of jury service about not doing Internet research or discussions with others; (3) the judge should inquire during jury selection whether prospective jurors use the Internet or social media sites (in detail and particularity in lengthy or high-profile cases); (4) a strong introductory instruction be given (and sets forth the text of one he drafted); (5) judges and lawyers should become more aware that when they place information before jurors in haphazard or incomplete fashion, jurors will be tempted to seek outside information to complete the picture. Thus, counsel should be prompted by judges to answer obvious questions instead of leaving them open; (6) during trial there should be some opportunity for jurors to bring any question or issue that is of major concern to them to the attention of counsel and the court; (7) prior to deliberations, final instructions should again emphasize the need not to communicate with others or seek information from outside sources (and sets forth the text of such an instruction); (8) during deliberations all electronic devices should be removed from juror possession and held by court staff, along with forceful reminders of the directives when jurors separate overnight; (9) juror sanctions in egregious cases may be necessary to set an example, particularly when the misconduct resulted in a mistrial or grant of a new trial; and (10) using “anonymous” juries in high-profile cases of intense public interest.

Retired California Judge Jacqueline Connor, in her September 2011 article, “Jurors and the Internet: Jury Trials and Millenials,”16 says that “Millenials” (born between 1980 and 1998) actually prefer technological communication to face-to-face and “live and breathe information access.” This directly affects their sense of the world and their sources of information about their world. In the context of jury trials, this “is a huge problem.”

In one short month recently, in Los Angeles Superior Court, one juror was caught tweeting about the trial and had even posted strictly forbidden photos of jurors in the court hallway; a journalist researching jurors’ use of the Internet stumbled on a juror posting while sitting as a juror; an excused juror nevertheless continued his postings with fictitious details about jury deliberations; in a high-profile case, several jurors were caught texting about the case during voir dire despite multiple strict admonitions (they were escorted out, confronted, only to return to the assembly room and continue the surreptitious texting); a judge thought to Google a defendant ready to begin a complex criminal trial, finding that the second Google entry on the first page was the defendant’s prior record and the third entry was his registration as a sex offender; and, in a civil case of elder abuse, it came to the judge’s attention as jurors were being selected, that the plaintiff had posted several videos and entries on YouTube dramatizing the alleged abuses by the defendant convalescent home.

Preventive Measures

Connor suggests that the “underlying dynamic” that leads jurors to explore the Internet despite explicit admonitions, threats and explanations seems to consist of “a general distrust of authority, the increasing ease of focused research available, the accessibility of different forms of technology (expanding by the minute) and growing psychological expectation of immediate answers.”

This dynamic impacts the operations of a trial in four significant ways and includes not only direct actions by jurors themselves but also actions designed to influence jurors: (1) problems of communication and expressions by jurors themselves (tweeting, texting, posting, blogging comments or observations about their jury experiences or the trial); (2) the problem of jurors actively researching their case (looking up words, researching issues, Googling the parties, the judge, the witnesses or the lawyers); (3) inevitable problems with jurors sensitive to media attention from high-profile cases (generating a stake in the outcome); and (4) examples of manipulations of the Internet to potentially influence jurors (posting alleged confessions of a party while the party is on trial; posting inflammatory videos on YouTube).

Connor provides numerous examples calling such “transgressions in the face of admonitions ubiquitous.” Why is this happening? Some jurors say they were told not to blog but the judge did not say they could not twitter. Some claim they are curious and determined to be the best juror possible. One blogged that “any responsible and rational juror would seek additional information on their own… the object of any court proceeding is to use all facts obtainable by any means…if I ever sit on a jury, you better believe I will do whatever research is required to unravel the case using due diligence….”

Jurors believe facts are suppressed to exclude evidence “inconvenient” to the judge and lawyers. Some feel they know they are being Googled “so of course they can google as well.” Others don’t see going online as doing “research” and don’t view such efforts as “discussing” the case. Meanwhile, the power of the Internet in “exposing the truth” is obvious to jurors. They can view crime and accident scenes; check travel times and alibis; consult Wikipedia regarding technology; compare witness backgrounds and CVs; plumb expert qualifications in more depth; view a defendant’s prior record; check out court filings and motions regarding evidentiary items; and a host of other independent research.

What can be done? Connor mentions steps such as (1) Google yourself, your witnesses, your clients, and issues in the case to be alert to potential danger; (2) Courts can consider giving better and more frequent admonitions; (3) Cell phones can be confiscated during sessions; (4) One attorney had jurors sign a statement under penalty of perjury before and after a trial that there was no Internet use connected with the trial; (4) Jurors could be given a “snitch” instruction to advise the court if another juror violates the rules; (5) Online IDs or passwords of jurors could be collected during the trial; (6) Jurors can be sequestered. But “none of these solutions is particularly foolproof and some are simply not palatable.”

Connor says better questions during voir dire can be designed to ferret out those who simply cannot forgo constant connection with the Internet. In their first appearance at court, jurors should be asked how many have already posted, texted, tweeted or blogged about their jury duty. Other detailed questions about texts and posts may disclose those who may be the most likely offenders. A review of a party litigant’s entire trial strategy is “highly recommended.” Allowing jurors to ask questions “should be absolutely mandatory.” Giving them a glossary of terms used in the trial is very helpful. Paring the trial to avoid repetition and avoid consuming time with undisputed matters and keeping the trial as short as possible will keep jurors engaged. Letting jurors know they can be tracked is something to consider (although the court can’t track jurors, they have been “outed” by journalists and public readers of the postings).

The “most effective technique,” however, appears to be “explaining the costs and reasons why Internet access relating to a trial is prohibited.” Convincing jurors why this is important is more effective than empty threats. Connor then provides the text of her proposed, detailed judicial instruction.

In October 2011, Scheindlin used an interesting and creative approach in a criminal case called United States v. Bout. During voir dire jurors were told that, if selected, they will be asked to sign a pledge that they will not use the Internet or any social media to discuss the case with anyone or to do any research during the trial or deliberations. Prospective jurors were asked, “is there anyone who will not sign such a pledge?” The following is the text of the juror pledge crafted by Scheindlin:

Juror Pledge

I agree to follow all of the Court’s preliminary instructions, including the Court’s specific instructions relating to Internet use and communications with others about the case. I agree that during the duration of this trial, I will not conduct any research into any of the issues or parties involved in this trial. Specifically, I will not use the Internet to conduct any research into any of the issues or parties involved in this trial. I will not communicate with anyone about the issues or parties in this trial, and I will not permit anyone to communicate with me. I further agree that I will report any violations of the Court’s instructions immediately.

Conclusion

Despite good intentions by the judiciary and some increased admonitory jury instructions, the dazzling blitz of accessible electronic information is a near-irresistible magnet for juror curiosity or misbehavior. The pool of available information beckons “wired” or “connected” jurors like a flame to moths. This conflicts with our objective that the courtroom trial be a protective cocoon where jurors calmly and dispassionately receive only relevant and reliable information based on evidentiary rules that balance the pertinent and admissible against the prejudicial.

The potential for juror misbehavior calls for alertness and vigilance by counsel. Lawyers need to request that courts act vigorously and aggressively in preventing, curing and remediating misconduct. And counsel needs to have some action plan on what to do in case jurors become tainted by extraneous information. In this and prior columns we have elaborated some of the steps counsel and courts can consider to meet the mounting challenge.

Michael Hoenig is a member of Herzfeld & Rubin.

Endnotes:

1. By Meghan Dunn (Nov. 22, 2011), available at http://www.fjc.gov/public/pdf.nsf/lookup/dunnjuror.pdf/$file/dunnjuror.pdf.

2. Id., Table 8.

3. New York Law Journal, Aug. 11, 2003, p. 3.

4. Hoenig, “Juror Misconduct on the Internet,” NYLJ, Oct. 8, 2009, p. 3.

5. 2009 S.D. LEXIS 155 (S.D. Sup. Ct. Sept. 16, 2009).

6. The South Dakota Supreme Court decision in Russo was discussed in our October 2009 article. See J.A. Edwards, “Jurors Who Tweet, Blog and Surf—Deciding and Discussing Your Case,” (Florida) Orange County Bar Briefs (October and November 2009), for further discussion of examples cited in our October 2009 column.

7. NYLJ, April 12, 2010, p. 3.

8. See generally, D.R. Agathe, “Propriety of Attorney’s Communications With Jurors After Trial,” 19 A.L.R. 4th 1209 (originally published in 1983 and Cum. Supps.).

9. 2012 U.S. App. LEXIS 8021 (4th Cir. April 20, 2012).

10. 2012 U.S. Dist. LEXIS 57072 (W.D. Pa. April 24, 2012), adopting U.S. Magistrate Judge’s Report and Recommendation denying Writ of Habeas Corpus, 2012 U.S. Dist. LEXIS 57074 (April 5, 2012).

11. 2012 VT 4 (Jan. 26, 2012).

12. G. Blum, 48 A.L.R. 6th 135 (2009) (collecting cases). For further instances of juror Internet use, see Sidoti, Zazzali-Hogan & Saso, “Choose Your ‘Friends’ Wisely,” NYLJ Special Section, E-Discovery, S8—S9 (Oct. 3, 2011).

13. State v. Abdi, citing and quoting in its footnote 3 the Colorado Civil Jury Instruction 1:5 in its entirety. The court also cited a law review article, L. Lee, Comment, Silencing the “Twittering Juror”: The Need to Modernize Pattern Cautionary Jury Instructions to Reflect the Realities of the Electronic Age, 60 DePaul L. Rev. 181, 197, 202 (2010) (observing that the Internet has been “wreaking havoc in the courtrooms” and suggesting a need for new “technology-inclusive” cautionary instructions).

14. “Prison for Juror Who Researched GBH Trial Defendant on the Internet,” Daily Mail article by Colin Fernandez, updated Jan. 24, 2012; http://www.dailymail.co.uk/news/article-2090593/Juror-used-Internet-research-defendant-jailed-6-months.html. The article reported on a prior conviction in June 2011 in which a woman, Joanne Fraill, was given an eight-month jail term after becoming the first juror to be prosecuted for contempt of court for using the Internet. Fraill admitted to using Facebook to exchange messages with a defendant named Sewart who had already been acquitted in a prior drug trial. She also admitted conducting an Internet search into Sewart’s boyfriend, a co-defendant, while the jury was deliberating.

15. 43 Md. Bar J., No. 6, pp. 44-49 (Nov./Dec. 2010).

16. CAALA Advocate Magazine (Sept. 2011) http://www.adrservices.org/pdf/Jurors and the Internet.pdf.