This article is written as a reflection of many conversations over the past few years and to stimulate your own thoughts on decreasing juror misconduct when it comes to social media, blogging, or general communication from jurors to others on ongoing jury trials. The term “google” is used throughout this article and is meant in the popular sense of the word to refer to internet searches which can be accomplished with any internet search engine.
As the use of computers has expanded and the ability to “google” any information on smart phones has become ubiquitous, we have seen growing problems with juror blogging and researching parties and issues in trials. Barely a week goes by that ASTC’s intrepid Trisha Renaud doesn’t post a newspaper article about a mistrial or challenge to a verdict on our organization’s listserv in some part of our country due to juror blogging or researching.
For years now, ASTC consultants have talked and written about how judges and lawyers could help jurors to realize the importance of not googling, blogging, tweeting or texting. In the beginning, our concern was that judges and attorneys didn’t seem to be taking the subject seriously. But now, everyone seems to be aware of the problem and the issue is whether we can fix it and if so, how.
Part of the problem we have is that some jurors perceive that they are actually making a better decision if they do their own research or look things up.[1] Many jurors are used to using the internet to make decisions about everything in their lives, both personal and work-related. Checking your phone is like checking your watch used to be—it is reflexive, automatic, and a habitual act.
In 2009 and 2010, trial consultants and attorneys started talking about expanding the instructions that judges give to jurors to highlight that they should not be using electronic media to either communicate about their jury service or to do research about the cases. Some consultants, Cynthia Cohen in particular, were suggesting that jurors sign a Juror Pledge to the effect that they would not use electronic media.
In 2011, Judge Shira Scheindlin, Federal District Court in Manhattan required that jurors sign a Juror Pledge to impress the seriousness of her instructions upon jurors in the US v. Viktor Bout case. This is the first Juror Pledge of which I am aware. Judge Scheindlin’s comment was, “I can’t seize their computers and their BlackBerry’s,” she said. “I can’t lock them up. I can try to intimidate them.”[2] She may have been speaking tongue in cheek, but it is common for the courts to think that the threat of punitive action will stop people from violating the rules. Given how many jurors are caught using the internet, we have to assume that this punitive approach isn’t working. However, a Juror Pledge might just add a component to get juror buy-in to obeying the judge’s instructions and influence more jurors to understand the importance of obeying the rules. Getting something in writing makes it more serious, more official. And if the jurors have a copy, it’s also a reminder about what they can’t do.
Attorney and consultant Paul Scoptur often asks participants during focus groups whether they would follow the judge’s instructions to not conduct research on the internet. He basically tells them that “the judge will tell you you are not to do outside research–google, internet, etc. Doing it will get you in big trouble if you get caught. Who would do it anyway?” According to Paul, 25% to 33% say they would google anyway. Not very reassuring.
We don’t know what percentage of the jurors who have been caught blogging or researching are those who just aren’t going to follow rules no matter what or whether some of them just didn’t internalize the instructions. Assuming that some of them aren’t people who simply flaunt rules, what could be the reason for their indiscretions? After jurors are selected and are instructed by the judge, many of them are overwhelmed with information. They are thinking about what their service is going to mean for their schedules, their families, and even whether they want to be there. Some are concerned about how serious the responsibility is and whether they are really qualified. Others are just so used to blogging, tweeting, texting and Facebooking about their every move and checking their phones or iPads the minute they have a question about something, they don’t even think about what they are doing. It’s habit and it’s automatic.
We also have to understand that most jurors want to do a good job. They want to have enough information to make a decision about the case. Since we first began interviewing jurors in the 1970’s, they’ve often told us that they felt they didn’t have enough information. In the past it was harder to find information and easier to avoid the newspapers and TV reports. It’s not surprising that now jurors feel that they can get the information they need from the internet. And their desire to do a good job, combined with their suspicions that information is being withheld from them makes it understandable that they would want to use the internet.[3]
In the midst of all the information given by the judge after jurors are selected, sometimes including the beginnings of jury instructions, jurors are told not to do any independent research or investigation on the case or to talk to anyone about it. Each judge is different, but most cover not going to the scene, not talking to anyone and most now tell jurors not to go out on the internet, tweet or blog. And yet some jurors are not following those rules – and from what we know it’s happening more and more frequently.
Trial consultants have been discussing how to have better compliance with the rules with each other and with attorneys and judges for years now. The best approach seems to be:
- Attorneys and judges cover the issue during jury selection utilizing open ended questions and a discussion format, including discussing the reasons for the prohibitions on communication and research of all types.
- Judges give very specific instructions, using a bullet list board and explain why these rules are necessary.
- Jurors be given a “Juror Pledge” to sign – which is then copied and returned to them.
- Jurors be shown a video in the courtroom which emphasizes what the rules are, why they are important and what the consequences are of disregarding these rules
Voir Dire
Educating jurors about not using the internet should start during voir dire. Judges and/or lawyers should ask about jurors’ internet use during jury selection. As always, an open-ended, discussion format will result in learning more about the jurors, but it will also make it more likely that the jurors remember the content of the discussion. It should include getting their reactions to the reasons why the courts prohibit communication and research.
Some sample questions:
How many of you blog?
Tell us what you blog about.
How often?
Do you blog about things you’re doing in your life?
Did you know that if you’re going to be a juror, you can’t blog about the trial?
How do you feel about that?
How hard is that going to be for you?
You can’t blog about the trial while it’s going on. Will you be able to refrain from blogging?
How many of you tweet?
[Same questions as for blogging]
How many of you are on Facebook or some other website where you post information about your life?
[Same questions as for blogging]
How many of you look things up on the internet?
How often do you do that?
I’m one of those people who hears a name I don’t know or a word I don’t understand or something that I want to know more about and I immediately reach for my phone or my computer to look it up. Are any of you like that?
Is that something you enjoy doing?
Do you use your cell phone to go out on the internet?
How often do you do that?
Is that something you kind of do automatically?
When you’re talking to someone and they mention something that you can’t remember or something you don’t know about, do you find yourself taking out your phone and googling it?
Well, if you’re going to be jurors, there’s a rule here in court that you cannot google things that occur in the trial – not the people or companies involved or whether there is any news coverage or anything about the trial. You can’t look up anything about the issues involved or the definitions of words that you don’t understand. How do you feel about that?
Does it make sense to you that the courts have this rule?
Why do you think the courts have this rule that you can’t blog and you can’t look things up on the internet or anywhere else?
Is that going to be hard for you?
Do you think you can stop yourself from googling about anything related to the trial?
How hard is that going to be for you?
Can any of you think of any reasons why the courts have this rule?
Do you believe everything you read in the newspapers?
Do you believe everything you read on the internet?
The court has a rule that you can’t read the newspapers or watch the TV, you can’t go to the place where this happened or talk to anyone about it. That’s the rule, and it includes the internet. You can’t go out on the internet and try to find information about the case. The reason for this is that the case has to be decided based only on what is presented in court. Your decision has to be based on evidence that the judge has decided is relevant and proper. Do you think that’s important?
Do you think that information on the internet can be outdated or inaccurate?
The judge makes the decision about what evidence will be allowed in the case based on a number of rules about whether evidence is reliable or relates to the case. Both sides know about what evidence is going to be used in the case and they have a chance to respond to that evidence. Can you see how if you’re doing research on the internet, neither side will know about what you’ve found and won’t be able to analyze that evidence to see if it’s true?
Do you think that’s fair?
How do you think that you would respond if someone texted or contacted you online and said something about you being a juror or said something about the case?
If the juror doesn’t know: Anyone else have an idea what they would say?
It would be your responsibility to tell anyone who mentioned your jury service online that you can’t talk about it until after the case is over. Do you think you’d have any problem doing that?
Does anyone have any questions about what you can or can’t do relating to the internet or your phone and being a juror?
Is there anyone who thinks that they just cannot follow this rule to not go onto the internet or blog or tweet or text about your service on this case?
Do you all understand that if you do research on the internet about this case or anything related to it, or if you blog or tweet or communicate about the trial, you will be held in contempt of court?
How many of you know what it means to be held in contempt of court?
Do you think that’s fair?
How many of you are going to be able to follow these rules we’ve talked about and be jurors – knowing that you will be asked to decide this case only based on the evidence that you get in the courtroom?
If the judge conducts the voir dire or if the jurisdiction requires that questions be submitted to the judge, it makes sense to include some of the questions above in the submission.
Many lawyers and judges have the misperception that jurors remember everything the lawyers and judge tells them and internalize the judge’s instructions. This ignores how information overload affects people’s memories. By emphasizing the importance of not blogging or researching the case and giving the jurors a reason why that’s important during voir dire, we have a better chance of more jurors complying. Of course, there are those people who just don’t believe in following rules, but for those who just aren’t thinking, we’ll have more likelihood of cooperation. And it is possible that jurors who are inclined to not follow rules will decide these are worth following if they are presented in a way that makes sense.
Judge’s Instructions
Judges generally give instructions to jurors about not blogging or doing research on the internet after they are selected. However, the number of cases where jurors are using social media indicates that the instructions are not sinking in and/or that the jurors aren’t taking the instructions seriously.
Some judges put the outlines of their voir dire on a board on an easel in front of jurors at the beginning of jury selection. The same could be done with a bulleted list of the research and communication that jurors should not be engaging in while on jury duty. Visual aids increase comprehension and memory.
Here’s an example of such a board:
| Jurors must learn about the case only from the testimony and evidence given at trial.
Jurors cannot communicate with anyone else in relation to the case, the issues in the case or the people, companies or locations involved in the case:
Tell the judge if someone tries to talk to you and won’t take no or an answer. |
When explaining what the jurors can’t do, most judges tell them that they have to decide the case only on the evidence that they hear from the witnesses and documents and other physical evidence that they receive in the courtroom. But that’s clearly not enough. Jurors need to understand why these are the rules. And it is important that the language be accessible to the jurors and not legalistic.
At the end of the article there are three recommended judges’ instructions, one from trial consultants Susan Macpherson and Beth Bonora which is very comprehensive.
Juror Pledge
After the judge has explained the reasons why jurors are not allowed to do their own research or communicate about the trial and presented them with the list of what they are not allowed to do, the jurors could – and many trial consultants agree with me that they should – be asked to sign a Juror Pledge. The Pledge would reiterate what is on the visual display board in the courtroom. The Pledges would then be collected and copied and given back to the jurors to remind them what their responsibilities are.
An example of a Juror Pledge would be:
| Juror PledgeI understand that as a juror, I am to make my decisions about this case based only on the testimony and evidence that I have heard or seen in court.
I understand that if I bring in other evidence from outside the courtroom, the parties to the lawsuit have no way to know what that evidence is or to address it. I also understand that much of what is in the newspaper or on the internet is not accurate or complete and if I bring in this material, the parties won’t have the opportunity to tell the jurors why it isn’t accurate or doesn’t apply to this lawsuit. |
| Juror PledgeI understand that our system of justice has rules of evidence and that the judge makes the decisions about what is relevant and what is not; and whether evidence passes certain standards before it can be allowed into the courtroom.
I also understand that as a juror, I cannot disclose any information about the case, the issues, the people or companies or locations involved in the case. I pledge that I will not talk or communicate with anyone or research anything about the case, the issues in the case or the people, companies or locations involved in the case. I pledge that in relation to the case, the issues in the case, the people, companies or locations involved in the case, I will not communicate with anyone or conduct any research. I will:
If anyone tries to talk to me about my jury service or the case, I will tell them that I can’t talk about it until the case is over. If they continue to try to talk to me, I will report this to the judge. I understand that if I violate this pledge, I am subject to being found in contempt of court, and that contempt may result in sanctions including jail time and/or a fine. Signature _____________________________________ Date ______________ Please print your name: ______________________________________
|
Most judges remind jurors that they are not to talk to anyone or do any research on the case at breaks and when they go home for the day. Asking jurors to remember their pledge to not talk to anyone or do any independent research is another way to reinforce the message.
Attorneys Ralph Artigliere, Jim Barton and Bill Hahn point out that many judges ask jurors when they return from breaks whether anyone has tried to talk to them or whether they have done any research.[4] Judges could reinforce the message by asking jurors if they have kept to their pledge to not research or blog or talk to anyone in person or on electronic media.
Concerns about Juror Pledges
A number of consultants have raised concerns about having jurors sign a pledge because there is no legal precedent for requiring jurors to sign a pledge. They worry that some jurors may refuse to sign such a pledge and that would create problems for the court. Some consultants think that there could be a backlash effect on some jurors who would feel that this was heavy handed – “big government” trying to force them to sign something and make them even more resistant to jury service.
An alternative method to address concerns about jurors not wanting to cooperate would be to give the jurors the list of prohibited contacts and then have them sign a sheet saying that they got the list, as we all have to do with HIPPA.
The counter to these concerns is that judges have the authority to make rules for their courtrooms. Jurors have the responsibility to follow the instructions of the court. A pledge merely makes it clear in writing what the jurors’ responsibilities are as a part of jury duty. Signing a pledge will make the significance of the rules clear to the jurors and most likely result in more jurors following those rules in relation to electronic media. Jurors have to take an oath to follow the rules of the court. A pledge is just another form of an oath. If a juror violates that pledge, they will not be able to say, “Oh, I didn’t think tweeting was a problem”. The rules will be very clear and they will have their pledges so that they can check and see if something they want to do is ok.[5]
The number of cases which are being impacted by jurors doing research on the internet or communicating about cases requires serious action by the courts. While discussing this issue in voir dire and changing judges’ instructions to include more detail about what jurors can and can’t do, telling them why and what the consequences are for not cooperating would be helpful, many consultants don’t think it’s enough. Consultants and lawyers who agree with the idea of a juror pledge should submit voir dire questions, suggestions for a board listing their responsibilities and a sample juror pledge to the court.
Video
Consultant Charli Morris has suggested that consultants assist the courts in producing a video – like a PSA – that could be shown by judges to the jurors who have been selected. She points out that showing it in the courtroom would be more effective than in the jury room because jurors are more likely to pay close attention after they are selected.
Ms. Morris suggests that a video could use contemporary references and even humor to convey what the rules are, why we have them, the importance of following them and what the consequences are if they don’t.
Other Issues
Include an admonition on Juror Questionnaires
If juror questionnaires are used, it should say on the front page that the potential jurors are not to talk to anyone about the information they are filling out and they should not do any independent research – on the internet or otherwise – about the case for which they are being considered. Many people, not knowing the court rules, will immediately look up the case that they are being asked about. Instant information is the name of the game now.
Should the courts take away electronics?
Some commentators have discussed whether or not jurors should be allowed to keep their cell phones and other electronic equipment during trial testimony and/or deliberations.
While I can see the logic behind collecting jurors’ phones and computers, I’m not sure that the discomfort that that would produce is worth it. They will have to be allowed access to their phones on breaks, at lunch and at the end of the day. If they are going to look things up or communicate about the trial with anyone, they will have plenty of chances. It’s important that jurors be treated with respect and that their jury service not be any more onerous than necessary. We need jurors to cooperate and be invested in the system. We’re already asking them to give up their lives for a period of time. It’s not helpful to the process if they are resentful. Most people are used to having their phones and being in contact with their families, friends and work. Taking their phones away would be perceived by many of them as increasing the hardship of jury service. It should be sufficient to tell them that their phones must be off while they are in court and to collect them before deliberations.
Thanks to everyone who has contributed to this discussion recently and over the years. I hope that we can take this conversation to a new level and look forward to people’s comments.
Recommended Judge’s Instructions on Electronic Media
Trial consultants Susan Macpherson and Beth Bonora suggest the following instruction for judges to use in explaining the reasons jurors must not research the case outside of court:[6]
I want you to understand the reasons for these rules I have given you. I know that, for some of you, it requires a change in the way you are used to communicating and perhaps even in the way you are used to learning.
In court, the role of jurors is to make important decisions that have consequences for the parties, and the decisions must be based on the evidence that you hear in this courtroom, not on anything else. For those of you who are used to looking up information on the Internet, I want you to understand why you are not permitted to do any research on anything having to do with this trial or the parties here.
The evidence that is presented in court is evidence that can be tested; it can be shown to be right or wrong by one side or the other; it can be questioned; and it can be contradicted by other evidence. What you would read or hear on your own could easily be wrong, out of date, or inapplicable to this situation. It is for these reasons that the courts have always limited the evidence to what can be tested here in court.
The whole point of a trial is to ensure that the facts on which jurors base their decisions have been fully and carefully tested by opposing parties, so limiting the evidence you consider in reaching a verdict to what they have been allowed to test and debate in this courtroom is the only way you can protect their right to receive a fair trial.
Another fundamentally important fact for you to bear in mind is that the presentation of evidence and the debate that occurs here in the courtroom about the meaning of the evidence is a public process. This allows everyone in the community, as well as the parties in this case, to know the evidence on which your verdict was based. Using information gathered in secret and discussed only by the jurors behind closed doors undermines the public process and violates the rights of the parties.
I want to be clear that this rule prohibiting any independent research applies to every kind of research—including asking someone a question related to the issues in the trial, discussing the trial with anyone outside of deliberations, and using electronic research tools as well as dictionaries, encyclopedias, and any other outside sources.
You and I are both serving as judges in this case, and that means that we will follow the same rules. Our only comments about the case must be made in the courtroom or in the jury room and addressed to the parties involved in this case. Discussing it anywhere else invites outside influences that could affect my rulings or your view of the evidence.
To eliminate that problem, and to ensure that no one can suggest there may have been such a problem, I never make any comments about any aspect of a trial outside the courtroom and I never listen to or read any outsider’s comments about the trial—in the news media or in the social media online. I also do not communicate with anyone involved in the case outside the courtroom.
You must follow the same rules throughout the trial and discuss the evidence only with your fellow jurors after you have heard all the evidence. Any other comments made to you or by you, either in person or online, can make it appear that you have not properly judged the case and could result in the need to repeat the entire trial.
You and I may have questions that the parties do not or cannot answer. But neither you nor I can go looking for the answers outside this courtroom. Obtaining any outside information would deprive the parties and the public of the right to know all the evidence we considered in reaching our judgments.
By agreeing to follow these rules, you will fulfill your duty to properly judge this case, and you will join with the thousands of jurors in courtrooms across the country today who have made that same commitment to protect and preserve everyone’s right to a public trial. [Where jurors are permitted to ask questions, an explanation of that process could be incorporated here.]
Many of the state and federal courts have changed their instructions over the last years to include mentions of social media. The Revised Model Charge adopted by New Jersey in May, 2011 reads as follows:
While this case is pending, you are not to conduct any research or make any investigations on your own about the case. That is not your job. Your job is to decide the case based solely upon the evidence psented to all of you here in the court room.
You should not review or seek out information about the issues in the case, the parties, the attorneys or the witnesses, either in traditional formats such as newspapers, books, advertisements, television or radio broadcasts or magazines or through the internet or other computer research. You also should not attempt to communicate with others about the case, either personally or through computers, cell phones, text messaging, instant messaging, blogs, Twitter, Facebook, Myspace, personal electronic and media devices or other forms of wireless communication. You should not go on the Internet or participate in or review any websites, Internet “chat rooms” or “blogs” nor should you seek out photographs or documents of any kind that in any way relate to this case.
Why is this restriction imposed? You are here to decide this case based solely on the evidence — or lack of evidence — presented in this courtroom. Many of you regularly use the Internet to do research or to examine matters of interest to you. The information you are accessing is not evidence. One of the problems is that what you are examining may be wrong, incomplete, or inaccurate. That material may be outdated. Indeed, there often is no way to determine whether the information that we see on the Internet is correct. We must insist that, as a juror, you must not be influenced by any information outside of this courtroom. Otherwise, your decision may be based on material which only you, and none of your fellow jurors, know. This would unfairly and adversely impact the judicial process. We must make certain that all of you hear the same evidence. We must also make certain that each party has a fair opportunity to refute or explain evidence offered against it or that may be unfavorable to its case.
I suggest that the word “refute” above, be replaced by the more commonly used “disprove”. I think some combination of the proposed Arizona instruction below and this one would be good. The New Jersey language is mostly accessible and I like the use of the rhetorical question, but this is not as thorough in listing all the prohibitions as the proposed charge for Arizona.
The following was proposed as a charge to jurors in Arizona.[7] I was unable to confirm if it was included in their model instructions and if so, in what form. However, it’s a good charge, although some of the language is too legalistic:
Each of you has gained knowledge and information from the experiences you have had prior to this trial. Once this trial has begun you are to determine the facts of this case only from the evidence that is presented in this courtroom. Arizona law prohibits a juror from receiving evidence not properly admitted at trial. Therefore, do not do any research or make any investigation about the case on your own. Do not view or visit the locations where the events of the case took place. Do not consult any source such as a newspaper, a dictionary, a reference manual, television, radio or the Internet for information. If you have a question or need additional information, submit your request in writing and I will discuss it with the attorneys.
Do not talk to anyone about the case, or anyone who has anything to do with it, and do not let anyone talk to you about those matters, until the trial has ended, and you have been discharged as jurors. This prohibition about not discussing the case includes using e-mail, Facebook, MySpace, Twitter, instant messaging, Blackberry messaging, iPhones, iTouches, Google, Yahoo, or any internet search engine, or any other form of electronic communication for any purpose whatsoever, if it relates in any way to this case. This includes, but is not limited to, blogging about the case or your experience as a juror on this case, discussing the evidence, the lawyers, the parties, the court, your deliberations, your reactions to testimony or exhibits or any aspect of the case or your courtroom experience with anyone whatsoever, until the trial has ended, and you have been discharged as jurors. Until then, you may tell people you are on a jury, and you may tell them the estimated schedule for the trial, but do not tell them anything else except to say that you cannot talk about the trial until it is over.
One reason for these prohibitions is because the trial process works by each side knowing exactly what evidence is being considered by you and what law you are applying to the facts you find. As I previously told you, the only evidence you are to consider in this matter is that which is introduced in the courtroom. The law that you are to apply is the law that I give you in the final instructions. This prohibits you from consulting any outside source. If you have cell phones, laptops or other communication devices, please turn them off and do not turn them on while in the courtroom. You may use them only during breaks, so long as you do not use them to communicate about any matter having to do with the case. You are not permitted to take notes with laptops, Blackberries, tape recorders or any other electronic device. You are only permitted to take notes on the notepad provided by the court. Devices that can take pictures are prohibited and may not be used for any purpose.
[1] Blackman, Ph.D., Julie and Brickman, PhD., Ellen; “Let’s Talk: Addressing the Challenges of Internet-Era Jurors.” The Jury Expert; Volume 23/No. 2 March 2011. This article has a plethora of useful footnotes. http://thejuryexpert.firminc.com/2011/03/lets-talk-addressing-the-challenges-of-internet-era-jurors/ ↩
[2] Moynihan, Colin; “Judge Considers Pledge for Jurors on Internet Use”; New York Times; September 18, 2011. Consultant Jeffrey Fredrick reports that the judge did require the Juror Pledge.↩
[3] This leads to another discussion about whether or not attorneys and judges are making sure that jurors get the information they need in language they can understand. But then, that’s what we trial consultants deal with day in and day out. Some consultants have suggested that allowing jurors to ask questions could be helpful as well.
[4] Artigliere, Ralph; Barton, Jim and Hahn, Bill; “Reining in juror misconduct: practical suggestions for judges and lawyers”; Florida Bar Journal; January 1, 2010.
[5] An extensive discussion of the issues is found in Hoffmeister, Thaddeus; 409 “Google, Gadgets, and Guilt: Juror Misconduct in the Digital Age”; University of Colorado Law Review Winter 2012.
[6] Macpherson, Susan and Bonora, Beth. “The Wired Juror, Unplugged”; Trial Magazine; November 2010. There are many useful footnotes attached to this article.
[7] Greene, Rosalind and Spaeth, Jan Mills; “Are Tweeters or Googlers in Your Jury Box?”; Arizona Attorney; February 2010.
RT @TheJuryExpert: new in The Jury Expert: Jurors Googling & Blogging – Can a Juror Pledge Stop Them? https://t.co/ibndCRdf7Y
RT @PIbuzz: Judge says: Don’t Google. 25% to 33% say they would google anyway. https://t.co/N5cCejAqjC
RT @TheJuryExpert: new in The Jury Expert: Jurors Googling & Blogging – Can a Juror Pledge Stop Them? https://t.co/ibndCRdf7Y