by Timothy P. Flynn
When you are seated on a jury, your duty is to observe the trial from start to finish, then decide the case based on the evidence submitted during the trial. This usually takes a few days; sometimes a week or more.
During your service, the trial judge will instruct you not to discuss the case with anyone, including your family. This used to involve the juror dodging an innocent query by a spouse at the dinner table about the trial. Now, there is much more at stake.
Today’s juror can get online and find out details about the judge, the attorneys, the parties to the litigation and, sometimes, even the events surrounding the case. Google Earth can bring the juror to the scene of the crime, and then some.
The Problem. In a nutshell, a trial is about managing information relevant to the case submitted for jury consideration. Under the court rules, however, when and how that information is presented to the jury is strictly controlled. Also, only some of the information pertaining to a case gets to see the light of day with the jury. There is much that is excluded based on the statutes, rules of evidence and court rules.
But what happens when a juror utilizes the Internet to obtain additional information, or utilizes social media to obtain personal information about a party or a witness in the case? This troubling phenomenon has been popping up with alarming regularity across the nation over the past five years. The result is sometimes a mistrial. The cost: tens of thousands of wasted resource dollars along with an erosion of confidence in our jury-based court system.
A colleague of mine from Salt Lake City, Tyson Snow, recently completed a jury trial in federal court in Montana. In addition to requesting the social media jury instruction, Mr. Snow also searched for the jurors’ profiles on several social media sites. Of the 13 sitting jurors [12 plus an alternate], seven of the jurors had a presence on some of the common social media sites. After the proceedings each day, Mr. Snow would then take a few moments to monitor the activity of the jurors, if any, on those sites to determine whether they were communicating anything about the case to their contacts.
Mr. Snow’s trial took two weeks to complete. Therefore, jurors were home from the trial over the course of a weekend; a tempting time for most jurors to drill into the case, learn some more about the players, and trumpet what you think about it all to your social media connections. Luckily, Mr. Snow’s jurors were clean and well behaved. No one made trial-ruining posts to their sites.
Another Problem. It’s one thing to monitor those jurors who maintain public profiles on social media sites to ensure they are not discussing the case with their connections. Yet, it is something entirely different when a juror, privately, accesses social media, or the Internet at large, to obtain additional information – information not endorsed by the court through the applicable rules. This extra-court activity is well hidden from the professionals.
Such surfing contravenes the efforts of the court and the lawyers, who strive to present information to a jury in accord with a very specific, long-standing, and thoroughly developed set of rules designed to eliminate prejudice. The prospect of a lay person, a juror, charged with deciding a case based on specific rules, breaking those rules to glean additional information, is disheartening.
Another Possible Solution. One idea to monitor jurors’ Internet activity is for the jurors to disclose their IP addresses and social media handles prior to trial so they can be monitored. Technicians hired by the court would install special cookies so that if a juror accesses the Internet about the case in any way, the juror’s foray is reported to the trial judge.
How will the prospective jurors among us react to that intrusion? Not likely a welcome development in our increasingly privacy conscious society.
Our collective unwillingness to be burdened by jury service is now stronger than ever. Complicating that resistance, if you do find yourself on a jury, particularly for a long trial, there is a nearly overwhelming temptation to “be the lawyer” and find out all you can about your case.
The question is whether our ancient jury system can survive this technological affront. As time marches on, this conflict will be played out with more frequency and greater visibility. In the meantime, if you do find yourself seated in the jury box, listen to the judge’s instructions and, above all else, OBEY.