Premature jury deliberations, outside influences on juries, unauthorized communications with jurors and the failure of jurors to follow judicial instructions are classic judicial headaches. But, with easy juror access to Facebook and Twitter, more headaches loom as these social networking sites1 challenge a sacred cornerstone of our jury system that “‘conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.’”2

Juror misconduct is difficult to detect, seldom confessed and often escapes punishment.3 Nationwide, mistrials involving misuse of electronic communication were, until recently, rare. A 2010 study indicated 90 criminal verdicts were challenged on the premise of Internet-related juror misconduct between 1999 and 2010.4 Only 28 mistrials were granted.5 In 75 percent of the affirmed verdicts, the court acknowledged that jurors may have deliberated prematurely or considered inadmissible evidence from social media communications or Internet research in reaching their verdict, despite judicial instructions to the contrary.6

Types of Misconduct

The trend of juror misconduct is escalating as a cursory review of decisions in 2013 alone reveals. In Michigan, a juror consulted Wikipedia for definitions of “reasonable doubt” and “corroborating evidence” and supplied them to fellow jurors.7 In a North Carolina case, a juror used Wikipedia to research a definition of “sponsor” as a critical element in an animal welfare act prosecution.8 In Georgia, a single juror googled law on a critical aspect of a criminal case which differed from the trial judge’s instructions.9 In California, a juror conducted Internet research on twins in an attempt to undercut DNA identification evidence.10

In Kentucky, a federal court in a civil case dismissed an entire jury panel because a juror, prior to being called to the panel, confessed in voir dire that he had googled the parties to the litigation.11 Finally, in a celebrated federal corruption case, an Alabama trial judge was ensnared in a controversy when he reviewed emails with federal investigation officials that were apparently exchanged between jurors and defense counsel, seeking a new trial, later sought to force his recusal from the case.12

In New York, the Appellate Division, Fourth Department, affirmed a denial of a motion to set aside a verdict after it was discovered that a juror performed Internet research of a fatal gunshot wound.13 In People v. Rios, the First Department declined to set aside the verdict premised on juror misconduct where a juror sent a “friend request” to one of the witnesses.14 The same court later declined to set aside a verdict when a juror mentioned through Facebook postings that she had jury duty and received “foolish replies relating to trials” from her friends.15

To combat this specific type of juror misconduct, New York State in 2009 incorporated specific language admonishing juries “not [to] communicate with anyone about the case by any other means, including by telephone, text messages, email, Internet, chat or chat rooms, blogs, or social websites, such as Facebook, MySpace or Twitter,” and advised jurors not to use Google to search for information regarding the case.16 The Federal Jury Instructions contain similar language.17 But, repeated juror misconduct involving electronic communication and social media, in the face of express instructions to the contrary, raises a serious question of whether jurors can still be presumed to follow judicial instructions.18

Deterrents Are Necessary

In our view, a new series of regulatory and statutory deterrents are necessary in order to reduce this Internet-related misconduct in New York:

(A) Jury instructions in both criminal and civil cases should require that jurors are admonished to avoid Internet-related communications at the beginning and end of each day;

(B) Jurors should be polled after any verdict to determine whether they have obtained “material information” from electronic sources;

(C) A poster should be posted in jury rooms, advising against use of electronic communications—the State of Washington has such a poster;19

(D) Internet training for jurors stressing the importance of refraining from electronic research should be mandatory;20 and,

(E) The current pattern criminal jury instructions should be amended to delineate specific punishment for any violations.

In the last suggestion, the current pattern jury instructions simply suggest “serious consequences if the rules are not followed.”21 Mere dismissal from the jury pool or the impaneled jury, which often occurs after misconduct is detected, may actually be welcomed by a reluctant juror and is not a deterrent.22

Furthermore, New York should amend the jury tampering statute—Penal Law §215.25—to apply specifically to the conduct of jurors. The statute currently applies to any person who communicates with a juror with the intent to influence the outcome of an action or proceeding.23 While the intent requirement is a substantial hurdle to any prosecution for jury tampering, the statute should be amended to create a presumption that if a juror consults electronically with others outside the jury or gathers electronic information from outside the trial regarding material facts, the actions are taken with an intent to influence either the individual juror or the jury.

The burden of proof would then shift to the accused juror to rebut the presumption by showing that the electronic information did not influence himself or other jurors. As a second tool for trial judges, Judiciary Law §751 should grant trial judges express authority to hold jurors in contempt of court for Internet-related or social media misconduct.

New York should also amend Sections 330.30(2) and 330.40(2)(g) of the Criminal Procedure Law which, in essence, now create a presumption that juror misconduct did not impact a fair trial and requires the defendant to prove that it did.24 Assigning the burden of proof to the defendant to demonstrate juror prejudice is inconsistent with the notion that any private communication or tampering directly or indirectly with a juror about a matter before the jury, as a matter of constitutional dimension, creates a presumption of prejudice to the defendant’s rights.25

The New York Court of Appeals, while not dealing directly with electronic juror misconduct, has cautioned that jurors should not confront the “force of private, untested truth as though it were evidence” and jurors should be shielded from “ex parte communications or materials that are not part of tested evidence at trial.”26 Improper influence encompasses “even well-intentioned jury conduct which tends to put the jury in possession of evidence not introduced at trial.”27 In view of the dangers of juror influence by the Internet and social media, New York should consider following the lead of a Georgia appeals court. In Chambers v. State, the court held that the conduct of even a single juror, in searching the Internet for a definition of a statutory defense in a criminal case, created a presumption of prejudice and, when the government could not overcome that presumption by proof beyond a reasonable doubt, a new trial was required.28

Similarly, CPLR 4404(a), which provides for a new civil trial in the “interests of justice” should be amended to provide that if a juror has obtained unauthorized access to material information that influences any juror, a new trial should be ordered.

In deciding challenges to jury verdicts in criminal and civil cases, a New York trial court should consider whether, if the court or the litigants learned during voir dire that the juror had obtained the alleged improper electronic information, would the juror have been subject to a discharge for cause or likely be the subject of the peremptory challenge? If the would-be juror would have been dismissed in voir dire for knowing at the start of the trial what he knew at the time he deliberated, then the electronically compromised juror’s participation in the jury creates an unacceptable taint on the entire jury deliberation process and a new trial should be granted.

Conclusion

Whatever transpires, the ultimate response to unauthorized electronic influence on jurors remains with the trial judge and alert advocates. Repeated judicial instructions, probing questioning of jurors in voir dire and jury polling at the end of a trial will be necessary to unmask electronic interference by jurors. Judges across New York are already implementing prophylactic measures to deter juror misconduct involving social media and the Internet. The additional ideas suggested here, if implemented, would create uniformity, assure fair and impartial jury deliberations for all parties—criminal and civil—in all New York trials, and reaffirm the vital confidence of the public in our jury system.

Richard A. Dollinger is a member of the New York Court of Claims and an acting Supreme Court Justice in Rochester. Marla R. Woodarek, a law student, assisted in the preparation of this article.

Endnotes:

1. Strutin, “Social Media Misbehavior by Jurors Afflicts Trial Process,” NYLJ (March 15, 2011) at 5, see also United States v. Fumo, 655 F3d 288, 305 (3d Cir 2011) (“If anything, the risk of such prejudicial communication may be greater when a juror comments on a blog or social media website than when she has a discussion about the case in person, given that the universe of individuals who are able to see and respond to a comment on Facebook or a blog is significantly larger”).

2. St. Eve & Zuckerman, “Ensuring an Impartial Jury in the Age of Social Media,” 11 Duke L & Tech Rev 1, 9 (2012).

3. Van Namen, “Facebook Facts and Twitter Tips—Prosecutors and Social Media: An Analysis of the Implications Associated with the Use of Social Media in the Prosecution Function,” 81 Miss L J 549, 584-85 (2012). Furthermore, social media-related juror misconduct challenges the general presumption that “jurors remain true to their oath and conscientiously observe the trial court’s instructions.” United States v. Ganias, 2011 WL 4738684 at *1 (D. Conn. 2011), citing United States v. Cox, 324 F3d 77, 86 (2d Cir. 2003).

4. Marcy Zora, “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, 602 (2012).

5. Id.

6. Id.

7. People v. Maliszewski, 2013 Mich. App. LEXIS 644 (Ct. App. Mich 2013)(no mistrial after polling jurors on their continued impartiality). The courts’ and juror use of Wikipedia has been the subject of extensive judicial debate. See United States v. Lawson, 677 F.3d 629, 650-651, n.28 (4th Cir. 2012). See also Fire Ins. Exch. v. Oltmanns, 285 P. 3d 802, 805 (Ct. App. Utah 2012)(discussing judicial citations to Wikipedia and describing it as “the great repository of contemporary wisdom”); Frederickson, “Conformity in Confusion: Applying a Common Analysis to Wikipedia-based Jury Misconduct,” 9 Wash. J.L. Tech. & Arts 19 (2013).

8. United States v. Lawson, 677 F.3d 629 (4th Cir. 2012).

9. Chambers v. State, 739 S.E. 2d 512 (Ct. App. Ga. 2013).

10. People v. Lugo, 2013 Cal. App. Unpub. LEXIS 4734 (Ct. App. 4th App. Div. (2013)(the offending juror was dismissed).

11. The Cincinnati Ins. v. Omega Flex, 2013 U.S. Dist. LEXIS 51387 (W.D. Ken. 2013)(juror had found prior verdict against defendant in another case and discussed it with other potential jurors).

12. United States v. Scrushy, 2013 U.S. App. LEXIS 14206 (11th Cr. 2013).

13. People v. Carmichael, 68 AD3d 1704, 1704 (4th Dept. 2009).

14. People v. Rios, 26 Misc.3d 1225(A), at *3 (Sup Ct, Bronx County 2010), aff’d 87 AD2d 916 (1st Dept. 2011); CPL §340(2)(g); see also People v. Brown, 48 NY2d 388, 394 (1979) (discussing that “not every misstep by a juror rises to the inherently prejudicial level at which reversal is required automatically”).

15. People v. Wilson, 93 AD3d 483, 485 (1st Dept. 2012).

16. http://www.nycourts.gov/judges/cji/5-SampleCharges/CJI2d.Preliminary_Instructions.pdf, 37, 40-41.

17. See Judicial Conference Committee on Court Administration and Case Management, Proposed Model Jury Instructions: The Use of Electronic Technology to Conduct Research on or Communicate about a Case (December 2009) cited in City of New York v. ExxonMobil, 739 F.Supp.2d 576, 610 (S.D.N.Y. 2010).

18. See Richardson v. Marsh, 481 U.S. 200, 211 (1987).

19. “New posters in Washington Courtrooms Encourage Jurors to ‘Focus on the Courtroom,’” Washington Pattern Jury Instructions Committee. Washington Courts website, Nov. 22, 2011.

20. Johnston, Keyzer, “Juries and Social Media,” Victorian (Australia) Department of Justice, p. 124-25, 2013.

21. CJI 2d Ed [NY] Sample Instructions, Final Instructions (rev May 5, 2009), at 42. Available at http://www.nycourts.gov/judges/cji/5-SampleCharges/CJI2d.Preliminary_ Instructions.pdf.

22. Id.

23. N.Y. Penal Law §215.25.

24. People v. Duffy, 31 Misc.3d 799 (Sup. Ct. Nassau Cty 2011) (defendant bore the burden of proving by a preponderance of the evidence that juror misconduct resulted in actual bias).

25. Remmer v. United States, 347 U.S. 227, 229 (1954) (a rebuttable presumption of prejudice in a criminal trial where there occurs “any private communication, contact, or tampering directly or indirectly, with a juror…about the matter pending before the jury”).

26. People v. Maragh, 94 N.Y.2d 569, 576 (2000).

27. People v. Jerge, 90 A.D.3d 1486 (4th Dept. 2011) citing People v. Brown, 48 NY2d 388, 393, (1979).

28. Chambers v. State, 739 S.E. 2d 513 (Ct. App. Ga. 2013).