My grandmother, God rest her soul, loved the phrase: "Curiosity killed the cat; satisfaction brought it back." It is a simple truth, and an important one in this Internet age. Jurors now are empowered by their iPhone, iPad or iMac to become a one-person investigator of the matter that is being tried before them. They are accustomed to googling for information all day long. Why, then, can’t they do it during a trial so that they understand the "issues" and get to the perceived "right" result?
The answer, of course, is that the judiciary’s role is to prevent jurors from acquiring information outside the courtroom that may inappropriately sway their findings. Obviously, when jurors are reaching conclusions and making decisions based on the potentially erroneous, outdated or incomplete musings of the online community, justice is not served. While it is true that it has always been the judiciary’s job to prevent jurors from seeking information outside the courtroom, that task has become increasingly more difficult now that every juror has an almost instant connection to information and people through smartphones, tablets and laptops.
The days of denying that there is a problem are over. Stories of jurors tweeting, posting or researching issues online are becoming more common. By now, we know the endings of those stories are usually unhappy ones involving sanctions, juror removal or even mistrial. New Jersey is certainly not immune. It has been reported that Superior Court Judge Peter Doyne, of Bergen County, recently imposed a $500 criminal contempt sanction on a jury foreman who googled sentencing guidelines during jury deliberations and then shared that information with fellow jurors.
In response to similar types of outrageous online juror misconduct, such as jurors posting real-time trial developments to Facebook and uploading photographs of alleged murder weapons to the Internet during trial, California recently enacted a law that calls for criminal and civil contempt sanctions against jurors who inappropriately use social media or the Internet to research or disseminate information about cases. See Cal. Laws chap. 181.
While sanctions certainly provide a punitive approach to address online juror misconduct, they do very little by themselves to prevent the Internet-savvy juror from acting inappropriately in the first place. Recognizing this problem, the judiciary and the legal community at large recently have proposed solutions that take a more proactive role in preventing online juror misconduct.
One such solution centers on revisions to federal and state model jury instructions on the use of social media and the Internet during trial. These recent revisions use very specific language that precisely identifies what online activities and websites are prohibited, and provide a pragmatic explanation for why jurors should not engage in such activity. This approach effectively treats jurors as adults who will follow the prohibition once they are told specifically what it covers and why it is important to the integrity of the jury system to adhere to it.
For instance, New Jersey Model Civil Jury Instruction 1.11C was revised to restrict inappropriate juror use of social media and the Internet. It provided a rationale to jurors by stating:
Why is this restriction imposed? You are here to decide this case based solely on the evidence — or lack of evidence — that is presented in this courtroom. You may wrongly be inclined to think that different or additional information from other sources would be helpful to you, or that this prohibition is somehow artificial … [t]his is not for you to determine. You must understand that any information you might access from sources outside of what is presented in this courtroom is not evidence.
See New Jersey Model Civil Jury Instruction 1.11C, Revised April 2012.
By clearly communicating the motivation and importance of restrictions on the use of social media and the Internet during trial, the trial judge brings the issue to the forefront of the juror’s mind. In fact, some courts now begin the indoctrination process at the start of jury selection by using voir dire questions that ask potential jurors whether they will be able to adhere to social media and Internet usage prohibitions during the case. The bottom line: Tell jurors early, tell them specifically and tell them why.
A federal judge in the Southern District of New York recently communicated this message through the use of a written juror pledge. These pledges are signed by jurors under penalty of perjury and require the juror to swear that he or she will refrain from inappropriate use of social media or the Internet during trial. By requiring a juror to read and sign the pledge, rather than simply reciting an oath, the judge drives home the significance of complying with social media and Internet restrictions.
While some forward-looking judges and jurisdictions have started to address this issue of online juror misconduct, others have been slower to react. In an attempt to combat the problem, some legal organizations have acted. For example, the American College of Trial Lawyers has issued a best-practices guide that is available on its website. See "Jury Instructions Cautioning Against Use of the Internet and Social Networking," American College of Trial Lawyers, September 2010. The guide includes sample jury instructions, jury pledges and even a form message that jurors can send to their social networking friends or email contacts advising them that they are a juror and are under a court order not to discuss anything online about the case.
In 2011, the Federal Judicial Center published its study of the issue. The center surveyed 508 judges to determine how frequently jurors use social media to communicate during trials and to identify strategies to halt this activity. See "Jurors’ Use of Social Media During Trials and Deliberations, Federal Judicial Center," Meghan Dunn, Nov. 22, 2011. This study determined that the most common strategy used by judges to combat online juror misconduct was through the use of jury instructions. Surveyed judges also recommended reminding jurors regularly during the trial not to use social media or the Internet to communicate or research the case either during trial or deliberations. The respondents felt strongly that it was not enough merely to prohibit the activity, but also necessary to explain the reasons for the prohibition.
The issue of online juror misconduct likely will continue to develop as technology advances and access to information and people that is stored "in the cloud" becomes easier. While no particular proposed solution offers a panacea for the problem, recent proposals by the judiciary and the legal community, when used in combination, offer some guidance for dealing with the issue.
First and foremost, the key to addressing the problem is planting a seed in the juror’s mind from the outset that the issue is critically important and worthy of the juror’s continual attention. This can be done initially through voir dire questions, jury charges or even jury pledges. In fact, the issue can and should be addressed even earlier than the start of voir dire for a particular case.
Many jurisdictions, including New Jersey, use jury brochures and videos to educate potential jurors when they first arrive at the courthouse for jury duty. Many of these brochures and videos are extremely outdated, often predating smartphones and social media interaction. Clearly, updating these brochures and videos to address directly and specifically that there is no place for smartphone, tablet and computer use in the jury room should be a top priority. An explanation of the rationale for prohibiting such activity also is needed so that jurors understand why they cannot do what now seems second nature to them.
Revising model jury charges to address this issue is also vital. Revisions that use very specific language to identify precisely which online activities and websites are prohibited are a better alternative to generic jury charge prohibitions against "talking about the case with anyone." Moreover, revisions should give jurors pragmatic explanations for why it is important for them not to engage in such inappropriate online activity. The revised New Jersey state court model civil jury instructions go a long way to accomplish that goal.
Although it is too early to measure the success of using a written juror pledge, it seems reasonable to conclude that such a pledge would make the juror’s oath more striking and draw the juror’s attention to this issue. As technology develops and connectivity increases, the judiciary may find that this approach is both effective and necessary.
If you simply instruct a juror not to do something, but never reinforce that message, it will likely be forgotten in short order. Judges must remind jurors throughout the trial not to use social media or the Internet until their jury service ends. The judge can deliver constant reminders very informally and efficiently during morning greetings, at every break, and at the close of the day. Even though there is no singular perfect solution to this problem, if the judiciary uses the different emerging tools in a proactive and strategic manner, recent instances of jurors gone wild should become as passé as Myspace.■