We’re all familiar with the movies and stories about jurors who skirt or even violate rules in the name of “real justice” (one of our favorites is the little-known movie Suspect, with Liam Neeson, Dennis Quaid, John Mahoney (best known as Frasier’s dad), and Cher). But it’s become a serious problem as the confluence of Google, social media, and smartphones in the pocket of every juror has led to a phenomenon known as the “Googling juror”, or “digital disobedience”. Put simply, jurors are taking matters into their own hands, doing extra-curricular (and extra-legal) research, and also sharing information on social media, which is throwing trials, and even causing mistrials.
These are just a few examples of the issues in play:
In 2009, nine jurors (out of a twelve-person jury) admitted to doing their own research into the case, on the Internet. This caused the trial to end in a mistrial.
In a case from Pennyslvania, in 2011, a juror admitted to researching on the Internet to learn more about the injuries suffered by a murder victim. They also admitted to factoring that research into their verdict. That trial also ended in a mistrial.
These are just two of countless cases that have been tainted, and mistrials declared, as a result of so-called “digital disobedience.”
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And it isn’t just jurors doing their own Internet research. In one case an attorney used familiarity with Internet search as part of his jury selection criteria, and then during his opening statement mentioned how easy it would be for someone to find information about the history of the case online. As a result, the opposing attorney argued for a new trial, while the judge concluded that he himself should have done more to instruct the jury to not research the case on their own.
Moreover, the issue is broader than Internet research. All forms of social media are being implicated, as well, most notably Facebook and Twitter.
Just last year a juror in Florida actually friended the defendant on Facebook, and in the U.K. a juror put up a poll on Facebook asking her Facebook friends whether they thought the defendant was guilty. The Facebook poller was dismissed from her jury; the fellow who friended the defendant didn’t get off quite so lightly: he went to jail for three days.
Jurors who tweet about the case on which they are sitting, or even just about the fact that they are on the jury, are a problem as well.
As one judge noted, even just tweeting “I’m on a jury” is an invitation to anyone following them to start a conversation about the case.
In 2010 murder defendant Erickson Dimas-Martinez was convicted of the murder, however the case was overturned because one juror kept dozing of, and another juror was tweeting from the trial. In fact, during the trial the following exchange with the tweeting juror took place:
Court: Now, it has been brought to my attention that during — during the course of the trial that you have from time to time, uh, twittered, whatever that is. Have you?
Juror: Um, I twittered like day three in court or, you know, something about — not necessarily the case but just the time link about the court.
Court: All right. But you haven’t –
Juror: Not discussed any of the case.
Court: Well, I want to ask you about a specific twitter and, uh, I want you to think about it and then tell me what it means.
Juror: Okay.
Court: Okay. It’s says: ”Choices to be made. Hearts to be broken. We each define the great line.” About 20 hours ago via text. Now what does that mean?
Juror: What it means was, um, not only like to pertain to this case but also to future stuff. Um, obviously, whatever we as a jury decide — you know, I’m not necessarily saying I know what’s going to be decided, but we have to decide — make a huge decision… So what I was meaning by that was, you know, we have to define the great line of, you know, where we stand on a subject and, you know, what we have to choose — decide in the future. And also “Define the Great Line” was an Underoath album*, and I thought I’d throw that in there along with my tweet.
Court: Well, have you already made up your mind in this case what you’re going to — how you’re going to vote?
Juror: No, because I’m waiting for the other 11 to help me come to a conclusion.
Court: All right.
However, the juror then also tweeted from the jury deliberations.
“If its wisdom we seek. . . We should run to the strong tower,” read one of his tweets.
Then, almost an hour before the jury announced their finding, the juror tweeted “Its over.” {sic}
As a result, on appeal, the conviction was overturned. The appeals court wrote that “Because of the very nature of Twitter as an on online social media site, [the juror’s] tweets about the trial were very much public discussions. Even if such discussions were one-sided, it is in no way appropriate for a juror to state musings, thoughts, or other information about a case in such a public fashion.”
To address these issues, some states have written prohibitions against electronic devices right into their jury instructions. For example, Judge Travis Francis, of Middlesex County, in New Jersey, now instructs juror “Do not use any electronic device, such as the telephone, cell or smartphone, BlackBerry, iPhone, PDA computer, the Internet, email, any text or instant message service, any Internet chat room, blog or website such as Facebook, MySpace, YouTube or Twitter to communicate to anyone any information about the case.”
Adds Judge Francis, “Jurors are specifically instructed not to use Google Earth or any other similar utility to visit the scene of an accident or crime.”
In addition, the state of New Jersey has now incorporated material about the use of wireless communication devices into the language of their instructions to jurors:
To be given after the jury is sworn in but before the openings.I. Cell Phone, Pager and Other Wireless Communication Devices
If you have a cell phone, pager or other communication device, you must turn that device off while in the courtroom. When serving on a trial, you must turn off cell phones and other communication devices and cannot use them for any purpose wh en in the courtroom or the jury room. You will be given a telephone number at which you can be contacted during the trial. Unless instructed otherwise by me, the trial judge, you can use those devices only when outside the courtroom or jury room during recesses. When you are permitted to use such devices, you must remember, as I have instructed you, you may not use them in any way to conduct your own research or make any investigations about this case on your own, or to communicate with anyone about this case.
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