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November 03, 2011 Articles

Combating Jurors' Improper Internet Usage and Winning

The Internet revolution is leaving courts and parties scrambling to preserve the sanctity of the jury trial

by Robin H. Jones and H. Eli Lightner II

REPORT FROM JURY DUTY: defendant looks like a murderer. GUILTY. Waiting for opening remarks.

REPORT FROM JURY DUTY: guy I thought was up for murder turns out to be defense attorney. Bet he murdered someone anyway.

REPORT FROM JURY DUTY: Attorneys presenting "evidence." Since when are security photos, DNA, and testimony evidence? Trusting intuition.

REPORT FROM JURY DUTY: Now forcing my autograph on other jurors. Also starting whisper campaign of innocence based on Magic 8 Ball.

@SteveMartinToGo on Twitter, December 20–21, 2010.

As it turns out, comedian Steve Martin's account from "the box" was fictional, but the Internet's invasion into the courtroom is no joke.

Virtually everyone in the United States has access to the Internet, many via smartphones, which are expected to outnumber feature phones by the end of 2011. And while the infiltration of the Internet into all aspects of our daily lives needs little explanation, the sheer scale bears mention. For example, although Facebook has only existed since 2004, 500 million users collectively post more than 60 million status updates per day. Less than two years ago, Google reported at least one billion searches per day. Last year, Twitter claimed approximately 50 million tweets per day.

This ongoing revolution means more information is improperly coming into and leaving the jury box, leaving courts and parties scrambling to preserve the sanctity of the jury trial. Indeed, the days of warning jurors to avoid influence from newspapers, World Book Encyclopedias, family, and friends have given way to attempting to prevent jurors from heading to the Internet via blogs, Twitter, Facebook, Google, Yahoo, Wikipedia, and similar sites to search for or broadcast case-related information.

The Irresistible Urge to Share
As social creatures, humans instinctively want to share experiences and communicate with one another. During jury duty, however, jurors are asked to abandon this desire. Some have a hard time doing so, and the accessibility of the Internet provides these jurors with an easy outlet.
One of the more infamous examples of a juror electronically sharing information during the course of a trial involved the high-profile Philadelphia fraud trial of former Pennsylvania Senator Vincent Fumo. United States v. Fumo, 639 F.Supp. 2d 544 (E.D.Pa. 2009). Juror Eric Wuest posted the following on his Twitter account in advance of the verdict: "Stay tuned for the big announcement on Monday everyone!" and "This is it . . . no looking back now!" The posts, which were discovered by the media covering the trial, prompted Fumo to move for a mistrial. The court ultimately held that the posts did not warrant a new trial because the posts suggested that the jury's decision was already made, so it was too late to influence Wuest. Further, there was no evidence that anyone responded to the posts, that Wuest discussed the matter with his fellow jurors, or that the posts demonstrated a disposition toward either party.

Similarly, in Smead v. CL Financial Corp., 2010 WL 6562541 (Cal. Superior Sept. 15, 2010), the court rejected a motion for a new trial where two jurors described their jury duty on Facebook. The first juror reported frustrations about the length of trial, stating, among other things, "I have tried very hard to keep things moving along." The second juror also commented about the length of trial, and when a Facebook friend made a statement that lawsuits are out of control, she replied "no argument." The plaintiff argued that these comments exhibited the jurors' attempt to sidetrack full and fair deliberations and their skepticism toward and prejudice against those who file lawsuits. The court denied the plaintiff's motion, holding that the comments alone were insufficient to create an inference that the jurors had abandoned their sworn duty.

Like Smead, the court in New Hampshire v. Goupil, 908 A.2d 1256 (N.H. 2006), found a juror's pretrial blog posts were too vague to demonstrate a predisposition to guilt. In Goupil, following the defendant's conviction, it was learned that, prior to reporting for jury duty, one of the jurors had posted on his blog that he was going to "listen to the local riff-raff try to convince me of their innocence." Not surprisingly, the defendant argued on appeal that such a post displayed the juror's predisposition toward the guilt of the accused. The court disagreed, however, finding the post too vague to support such a theory and noting the lack of evidence that the juror solicited outside input regarding his vote in the case.

These and other examples demonstrate that the outflow of case-related information is generally found to be insufficient to warrant a mistrial or new trial. The reality is that courts are reluctant, absent evidence of outside influence or prejudice, to declare a mistrial or disturb a jury verdict when a juror makes online comments. To the contrary, outside information infiltrating the jury room—the inflow of information—often leads to a mistrial or new trial.

Curiosity Killed the Trial
Too many jurors take it upon themselves to conduct their own Law & Order-style investigation of the case, which includes researching anything from the issues in the case to the parties, attorneys, and witnesses participating in the trial. One obvious problem with jurors relying on outside information is that it negates the judicial process. Indeed, the court and the parties take extensive steps to closely regulate what evidence is allowed in—and excluded from—the court room. Not surprisingly, mistrials have resulted when, among other things, Wikipedia printouts were found in the jury room, jurors printed out definitions of legal terms from other jurisdictions, and a juror researched to determine an alternative cause of death and shared that information with his cohorts.

Perhaps one of the more egregious instances of extrajudicial juror investigation was a taser death case in which two jurors read on the taser manufacturer's website that tasers are nonlethal. See Andrew Wolfson, Taser Death Verdict Challenged Over Juror's Conduct, Louisville Courier-Journal, Jan. 9, 2010, available at 2010 WLNR 795830. As one would expect, when the court learned that the jurors swayed their fellow jurors with this information, the verdict exonerating the police officer defendant was set aside.

In State of Virginia v. Danny Cecil, 655 S.E.2d 517 (2007), the court reversed a felony sexual abuse conviction after two jurors looked up the Myspace profile of one of the alleged victims and shared its contents with other jurors. This information was revealed to the court after the jury foreman called a lawyer friend, who was not involved in the case, for advice concerning what had happened in the jury room and that attorney relayed the information to the defendant's attorney. Even though nothing relevant was revealed, the court stated "the mere fact that members of a jury in a serious felony case conducted any extra-judicial investigation on their own is gross juror misconduct which simply cannot be permitted."

A less extreme example is Zarzine Wardlaw v. State of Maryland, 971 A.2d 331 (Md. App. 2009). There, the alleged victim of rape suffered from oppositional defiant disorder (ODD). One juror learned through her own research that lying was a trait associated with ODD and shared this information with other jurors, one of whom informed the judge by written note. The judge denied the defendant's motion for mistrial, but it was reversed on appeal because the victim's credibility was a crucial issue in the case.

Moreover, simply replacing a rogue juror may be an insufficient remedy, as noted in State of New Jersey v. Scott, 2009 N.J. Unpub. LEXIS 1901 (N.J.App. Div. July 20, 2009). There, the trial court convicted three cousins charged with manslaughter. During the proceedings, one of the jurors announced to the other jurors that she had conducted Internet research on the defendants, the victims, and even the possible sentence accompanying a conviction. The trial court replaced that juror with an alternate and denied a mistrial, but the appellate court disagreed and overturned the conviction.

Nip It in the Bud
The court is typically made aware of improper accessing of extrajudicial information when jurors either report wayward jurors or admit to their own misconduct. While many disobedient jurors are caught, there are surely others who go undetected. Strictly sequestering jurors during every trial would prevent jurors from straying, but this measure simply is not feasible. Other measures must be taken to prevent the Internet's invasion into the courtroom.

Potential jurors must be told early and often about outside influences and the problems that potentially accompany their ventures onto the Internet during jury duty. Perhaps the best way to plant this seed is in the jury summons. In addition to relaying the usual information (when and where to report, etc.), a jury summons should also contain a noticeable warning to prospective jurors about researching and communicating via the Internet and other sources while on jury duty. See "Proposed Internet Related Jury Instructions," [PDF] American College of Trial Lawyers (containing proposed instructions and certifications for use in jury summons and at trial). Additionally, every court's web page, which generally provides basic information about jury service, should contain a similar notice addressing this issue. These warnings should employ language tracking that is used in the adopted and proposed initial jury instructions discussed below.

Another means of hammering the Internet message home for prospective jurors is a juror questionnaire, which many courts employ to obtain a juror's qualifications and basic information prior to service. Questionnaires offer a greater opportunity than the jury summons to reiterate the warnings relating to juror Internet usage, as well as to obtain a written confirmation that jurors understand and will comply with the directive not to obtain or disseminate case-related information via outside sources. Such a confirmation was incorporated into the juror questionnaire issued in the recent Barry Bonds trial. See Barry Bonds Juror Questionnaire [PDF].

Once a jury is selected, the court's introductory remarks should again set forth the directive that the jurors are not to improperly use the Internet or consult outside sources. To that end, several jurisdictions are proposing and adopting new pattern jury instructions to account for jurors' potential Internet usage. For example, in January 2010, the Judicial Conference of the United States, which sets the policies for all federal courts except the Supreme Court, forwarded to all federal judges a set of suggested jury instructions addressing Internet usage. January 2010 Judicial Conference Letter [PDF].

The recommended pretrial instruction reads as follows:

You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in the case, and the individuals or corporations involved in the case. In other words, you should not consult dictionaries or reference materials, search the Internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Please do not try to find out information from any source outside the confines of this courtroom.

Until you retire to deliberate, you may not discuss this case with anyone, even your fellow jurors. After you retire to deliberate, you may begin discussing the case with your fellow jurors, but you cannot discuss the case with anyone else until you have returned a verdict and the case is at an end. I hope that for all of you this case is interesting and noteworthy. I know that many of you use cell phones, Blackberries, the Internet and other tools of technology. You also must not talk to anyone about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any Internet chat room, or by way of any other social networking websites, including Facebook, My Space, LinkedIn, and YouTube.

While these instructions are a good start, there are a few things that might improve their effectiveness.

First, many jurors hear the jury instructions but do not fully understand the gravity of the consequences if they violate them. Thus, in addition to prohibiting the use of the Internet and other outside sources, the court should also explain to the jury that disobeying such an instruction will likely result in a mistrial or vacated verdict, which means any time the jurors, the court, and the parties have devoted to the trial will be wasted. Moreover, the jurors should also be told in general terms the financial toll that potentially results from their misdeeds. Indeed, not only are the court costs (i.e., taxpayer money) associated with administering the trial essentially wasted, but the parties' expenses (attorney fees, lodging, travel, trial preparation, trial technology, etc.) will be squandered. Further, the financial sacrifices some juror's have made to perform their civic duty would also be for naught. Even if this message was generally conveyed earlier via a jury summons or other instrument, it should be reiterated to stress the importance of the Internet prohibition. Additionally, although included in many pattern instructions, the court should emphasize each juror's obligation to report any potential misconduct by other jurors.

Some jurisdictions are taking a hardline approach to juror misconduct relating to Internet usage. For instance, New York has enacted laws placing a juror in contempt for improper Internet usage. N.Y Jud. Law § 753(A)(6). Likewise, in 2009, a New Hampshire juror caused a mistrial and was charged with contempt when he revealed to other jurors that by conducting his personal Internet research, he had discovered the defendant was a registered sex offender—a fact that had been purposely excluded from trial. Annmarie Timmins, Juror becomes a defendant; Research of sex offender brings contempt charge, Concord Monitor, Mar. 26, 2009, available at 2009 WLNR 5657916. Last year, a Michigan juror was fined $250 and ordered to write a five-page essay on the Sixth Amendment after she posted on her Facebook page that it was "gonna be fun to tell the defendant they're GUILTY." Associated Press, "Detroit-area juror fined, ordered to write essay for talking 'guilty' defendant on Facebook,", Sept. 2, 2010.

Placing jurors on notice that their improper Internet activity might also result in fines, essays, or possible jail time would certainly get the attention of most jurors; it might also remove the comfort that accompanies the perceived anonymity of the Internet. Accordingly, to the extent penalties are available in the jurisdiction, the court's first instructions to the newly impaneled jury should also explain the fines and punishments that accompany improper use of outside sources during trial.

In addition to the court reading the Internet-related jury instruction to the panel at the start of trial, instruction should also be provided to the jury in hard copy format. Today's jurors increasingly assimilate information better visually than aurally, which lends support to this approach. See, e.g., Sonya Hamlin, "Who Are Today's Jurors and How Do You Reach Them?" 2001 Litigation, Vol. 27, No. 3, at 9, 11. Further, to the extent not already done so via a juror questionnaire, such a handout can take the form of a certification that the juror must sign confirming that he or she understands the instruction and will abide by it. Ultimately, requiring jurors to sign such a confirmation, providing them with a copy of the instruction to retain for reference throughout the proceeding, and restating the instruction prior to each significant break should increase the likelihood of wholesale compliance.

Fact-Finding Missions
While the foregoing measures would surely increase juror compliance with Internet-related instructions, there will still be jurors who stray. Consequently, it would also be prudent for the lawyers in the case to protect their clients from tainted verdicts by gathering as much information as possible about jurors' Internet footprints and routinely searching the Internet during trial for material that has the potential to improperly influence a jury verdict.

In addition to providing an opportunity to have jurors certify that they understand the instructions regarding the use of outside sources while on jury duty, juror questionnaires can also provide valuable information about a potential juror's Internet presence that will be beneficial not only in selecting a panel, but also in subsequently policing that panel's Internet use at trial. Some might contend that inquiring about a juror's Internet activity in a juror questionnaire is too invasive. Asking a potential juror if he or she has a Facebook or Twitter account, however, is no more invasive than asking a juror to identify his or her hobbies, list the magazines he or she reads, name the television programs he or she regularly watches, or relay the message of any bumper stickers that might be on his or her car—all of which are just some of the questions included in juror questionnaires used by more than one U.S. district court. E.g., U.S. District Court for the Southern District of Alabama, Juror Questionnaire [PDF]; see also Barry Bonds Juror Questionnaire [PDF] (containing questions about each juror's Internet usage).

Thus, courts should consider—and parties should push for—the adoption of uniform juror questionnaires that seek, among other things, information regarding a potential juror's Internet activity, including information on each juror's web memberships, web aliases, blogs, reading habits for online periodicals, and propensity to post comments to online articles. To the extent a court does not incorporate such questions into a form juror questionnaire, the parties should request the use of a supplemental juror questionnaire that delves into these topics. The accuracy and completeness of information about an individual's Internet activity will undoubtedly be closer to 100 percent when the questions are answered privately via a juror questionnaire, which promises confidentiality, rather than in voir dire before a large crowd of strangers. Additionally, with most juror questionnaires, the individual must confirm, under penalty of perjury, that all answers are true and correct, which creates another level of certainty about the juror's responses.

Similar to a juror questionnaire, voir dire provides a chance to ask general and specific questions of potential jurors about a number of topics, including their Internet activity. Obviously, questions in this forum must be deftly handled so as not to be intrusive or embarrassing for an individual providing responses in front of the entire jury pool. Nevertheless, the general information gained through voir dire can be used not only to police jurors ultimately selected for trial but also, depending on timing of the actual jury selection, it can be used to inform a party's choices for the panel.

Finally, with the information obtained via questionnaires or voir dire, the parties should attempt to police juror Internet activity during trial. This would include, among other things, routinely running relevant Internet searches as well as visiting a juror's public Facebook, Twitter, or similar social networking page—but not "friending" or otherwise attempting to connect with a juror. Additionally, it would be wise to set up one or more Google Alerts using relevant and unique terms or names from the trial, which will help monitor articles or blogs on the subject that may involve the jurors.

Potential jurors' access to the Internet is only going to become more convenient as technology evolves. Consequently, lawyers and the court must be proactive in educating jurors about the pitfalls accompanying inappropriate Internet activity during jury service. Beyond that, the parties must be vigilant in monitoring jurors' use of the Internet during trial. The foregoing preventive measures are seemingly easy to employ and, while no feasible solution is perfect, will unquestionably go a long way toward either avoiding altogether the fallout that accompanies jurors' misuse of the Internet or, alternatively, protecting the parties from having outside influences affect their jury verdict.

Keywords: litigation, commercial, business, Internet, juries, mistrial

Copyright © 2011, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).