THE GOOGLE EFFECT
Jurors, and Social Media: When jurors base their verdict on information outside the facts offered as evidence at trial.
Social networking is influencing jurors’ decisions at trial. For example, instant messaging gives no one time to think and the opportunity to deliberate. In text messages the human voice is missing with its subtle tones and inflections. The human voice and its variety of sounds convey a variety of meanings which are unspoken.
Did you ever wonder what a potential juror is thinking when he is waiting to be selected for jury duty? Typically, a juror is ushered into a large courtroom by a court officer; numbers are called at random by the court clerk. These numbers match the numbers of individual jurors. Once a person’s number is called he is asked questions by the judge and the attorneys who represent the parties in the lawsuit. These questions are designed to eliminate jurors who are biased; and who are unable to objectively decide the case upon the facts presented as evidence; or who are unsuitable in some manner to the attorneys representing the parties. If they meet all the criteria, the first 12 qualified jurors are seated in the jury box along with two alterative jurors. There are alternates in case one of the 12 jurors is unable to perform his or her duties, e.g., illness.
It is then that jurors have a chance to start looking around. They usually try to figure out who are the parties and who are their attorneys. They also want to know why the parties were unable to settle their differences instead of going to trial. In the past, the judge would admonish the jurors not to talk about the case with one another until they began their final deliberations. Jurors had a hard time obeying the court’s instructions because for as long as the trial lasted the only people who were available to chat were their fellow jurors. Today, those same instructions by the judge are impossible to enforce; and very difficult for jurors to obey.
Jurors come to court with many different types of electronic devices: they have smart phones; they have Ipads; they have laptops; and they have big and small tablets. Each person may have several of each electronic device. All these devices can perform a multitude of functions.
Many are inappropriate for the jurors to use at court; and many of which allow jurors access to information that may prejudice their deliberations. Jurors can send telephone messages, text messages, emails, etc. They can talk to their friends at lunch time. Many succumb to the temptation to talk about the demeanor of the judge, attorneys, witnesses and the parties themselves. They can publicize their opinions on all types of social media such as Facebook, LinkedIn, Google, Yahoo and Apple. There is also the possibility that jurors ‘personal electronic devices could be “hacked.” There is the real possibility that the jurors’ deliberative process could be revealed if they made notes about their discussions on their smart phones, Ipads and tablets. Even “cloud computing” has unappreciated risks since the information about a jurors electronic information is being stored on a remote servers that are also vulnerable to “hacking”. Another scenario is the “hacking” of a judge’s computer system in order to get confidential information that provides a glimpse into the judge’s thinking and jury instructions. If a jurror has a question during their deliberations it is also likely the judge may give the jurors instructions about how to proceed. Lawyers could influence what is told to the jury by the judge if they got advance warning about what the judge was thinking as reflected in notes made on his computer. In the recent past those notes would not have been electronically accessible to ‘hackers” and those that retain them.
Jurors frequently use twitter to convey every day experiences to their friends. Can you imagine the temptation of a juror to twitter her friends about what was going happening at trial and what her fellow jurors were saying to each other? There is also the concern that jurors could be intimidated or unknowingly tracked by “hackers” gaining access to their personal information. In high-profile organized crime cases the ability to “reach” a juror or influence his or her decision may be enhanced if it is known that a juror is in financial trouble or in debt to mob associates.
Jurors can electronically visit the site of an accident or a murder and draw conclusions that are unsupported by the evidence. Is the information on the internet reliable? Is it accurate in time and place? The judge may rule that something is inadmissible at trial but the jurors may be able to see it by “googleing” it.
What no one foresaw was the unanticipated, outside interference upon the jury system from all this technology. Jurors can “google” the judge, the parties, their attorneys, witnesses, employers, friends of the parties , prior arrest records, and even the issues under dispute. For example, if the case was about the death of a driver under the influence of alcohol jurors could access the print and electronic media which reported the story when it happened. The news stories may or may not have the accurate facts. Many times the facts only become available after a full investigation. Even then, it may depend upon who performed the investigation and who paid for it. Think of the BP oil spill in the Gulf of Mexico.
The following are proposed supplemental jury instructions that the trial judge should explain to the jury before the opening statements by the plaintiff and defendants’ attorneys:
- jurors should not use social media to perform any independent research relating to any issues in the case, the parties, witnesses or experts;
- jurors should not use any electronic devices to research any topic in the case or any person listed as a party, witness or expert;
- turn “off” electronic devices while in the courtroom;
- Jurors should not communicate with outside influences by using electronic devices , e.g., family, friends, co-workers, other jurors;
- do not communicate, during jury deliberations, with anyone by any means including electronic devices.
- do not perform any independent research about issues in the case using electronic devices. Only consider in your jury deliberations the information admitted into evidence at trial.
Judges are reluctant to intervene in the personal lives of jurors and what they do when they are not in court. However, the pervasiveness of the internet and social media enable jurors to decide a case on what they think is important even if their judgment is contrary to the judge’s instructions.
All Rights Reserved
Arthur F. Licata, Esq.