Jurors on the Internet: a dilemma for courts

By Maggie Clark, Stateline.org
Posted Dec. 21, 2011, at 8:38 p.m.

WASHINGTON — This month, the Arkansas Supreme Court overturned a guilty verdict in a capital murder case because a juror was tweeting about it while the case was being heard. A few days earlier, a California juror was dismissed after the court discovered she had posted extensively about the case and about the other jurors on her Facebook page.

This is a troubling time when it comes to the use of the Internet in the courtroom. Faced with rapidly changing technology, judges are struggling to keep jurors from getting and spreading information about current cases online. Doing online research on the defendant’s criminal record or consulting Facebook friends on a vote for sentencing might seem acceptable to some jurors, but it viol ates the oath “to base your verdict solely upon the evidence” as presented in the courtroom.

Personal Internet research can be just as dangerous a problem as social media use. In January of this year, a judge in Luzerne County, Pa., was forced to acquit a man charged with homicide and first-degree murder in the death of a 1-year-old, and declare a mistrial on a number of other counts, after the court found out a juror had independently done online research about injuries sustain ed by the victim, and possibly offered to share her knowledge with the other jurors.

All of this has happened in the wake of the 2009 “Google mistrial,” in which a Florida judge discovered that nine jurors in a federal drug case had been doing Internet research on the case, forcing the judge to declare a mistrial.

Following that case, more than 30 states adopted new model jury instructions specifically barring jurors from researching or communicating about a case on the Internet while they are serving. But the problem remains widespread. In 2009 alone, judges granted new trials or overturned verdicts in 21 cases as a result of Internet-related juror activity, according to an analysis from Reuters Legal.

This month’s Arkansas Twitter episode was a complicated one. The State Supreme Court reversed the decision of a lower court judge, who allowed the murder conviction of Erickson Dimas-Martinez to stand even though a juror tweeted about the case several times after the lower court judge asked him to stop. (Another juror was observed sleeping through portions of testimony.) At 3:45 p.m. on April 1, 2010, the day of sentencing, Juror 2 tweeted, “It’s over.” But the jury did not announce that it had reached a sentence until 4:35 p.m., according to the Arkansas Supreme Court opinion.

“Because of the very nature of Twitter as an online social media site,” wrote Associate Justice Donald Corbin in the Arkansas opinion, “Juror 2’s tweets about the trial were very much public discussions … it is in no way appropriate for a juror to state musings, thoughts, or other information about a case in such a public fashion.” Arkansas had updated its jury instructions in 2010 to prohibit Internet communication and research about an ongoing case, and the Court determined that Juror 2’s actions showed that he was willfully disregarding those instructions.

Even though a majority of states now prohibit Internet research or communication by jurors, studies have found that many jurors misconstrue the instructions or simply refuse to limit their Internet use during a trial. In a pilot study of 500 jurors across the country conducted by the National Center for State Courts (NCSC), researchers found that even after jurors had been instructed that they could not tweet, email, use Facebook or communicate electronically with friends or family members about a case, one-third of respondents either didn’t understand or incorrectly understood what they could and couldn’t do when it came to using the Internet while acting as a juror.

Paula Hannaford-Agor, director of NCSC’s Center for Jury Studies, says her research findings reflect how closely connected the Internet is with ordinary citizens’ daily lives. “People don’t intuitively understand why they shouldn’t do research on a case,” Hannaford-Agor says, “and why, if this is how they navigate throughout life, (the Internet) should be off-limits.”

Some states have yet to instruct jurors about Internet research and communication. Some 20 states make no mention of the Internet as something to avoid while serving as a juror in a civil trial. At least 12 states do not mention the Internet or social media in their instructions for juries serving on criminal trials.

Internet research and communication in many cases is not malicious: Jurors may be driven by the desire to make sure they understand all the facts and definitions of complex legal terms.

“Jurors are instructed in a number of ways as to their supremacy in judging the facts,” said Michael Hoenig, a products liability lawyer and author of several law journal articles on jurors and Internet use, in an email to Stateline. “Such instructions may, despite admonitions against Internet forays, act to ‘empower’ and embolden jurors into ‘searching for the truth’ even outside the courtroom.”

To curtail the problem, researchers recommend that judges not only tell jurors what they cannot do but also explain why they cannot do it.

Judge Herbert Wright, in Little Rock, Ark., tells his jurors that if they use social media or do Internet research during courtroom proceedings, they can cause an expensive mistrial and waste their own time and taxpayers’ money. Wright was made especially sensitive to the problem this year: In July, after one of his trials had ended, he found out that a juror had done Internet research o n the defendant’s criminal record during a recess.

Explaining the rationale behind the restrictions, says Eric Robinson, of the Donald W. Reynolds National Center for Courts and Media, is the most effective way to reduce juror misconduct on the Internet. “Courts must appeal to jurors’ sense of duty, and explain the reasoning behind the restrictions, as well as the consequences for violating them,” says Robinson.

Currently, only seven states include any rationale for prohibiting Internet research and communication in their civil jury instructions, and only 10 states include a rationale in their criminal jury instructions.

Courts could solve much of the problem by banning all juror cellphones from the courtroom, but they have been reluctant to do that, partly out of concern that more citizens would avoid jury duty if they felt they were losing communication with the outside world. Arguments have been made that public safety would be endangered if jurors couldn’t use their cellphones to get in touch with family members in the event of an emergency.

Whether or not these are valid concerns, they are likely to come up increasingly often as more people accustomed to online research and communication enter the jury pool. Hannaford-Agor, of the National Center for State Courts, says judges will have to decide whether they should simply overturn any case in which a single juror uses social media or does research despite court instructions , or whether they should be willing to accept some social media engagement during a case if the content doesn’t show bias.

“If everyone acts like the Arkansas Supreme Court,” Hannaford-Agor says, “we’re going to be turning over a lot of verdicts.”

http://bangordailynews.com/2011/12/21/news/nation/jurors-on-the-internet-a-dilemma-for-courts/ printed on July 31, 2014