While I was in law school, I received a call from my mom, and she started asking me about the elements of a criminal assault case in Texas. I don’t know about all of you, but this was not the question I expected from my mom (I might expect the call from some other family members, but not my mom). I asked her why she wanted to know, and she replied, "I have jury duty, and we’re trying to decide whether to convict the defendant."
"Didn’t you get an instruction not to talk to anyone about the case?" "Yeah," she replied, "but I didn’t think that applied to you."
And that’s how it goes. Despite judges’ best attempts to instruct jurors not to look to evidence outside the case, jurors have always found a way to do it. But now, with the internet and smart phones, it seems that ignoring judicial instructions is becoming too easy. Yesterday’s New York Times discussed the trend of "Google mistrials" that are sweeping the nation, creating a firestorm in the last two weeks.
Last week, a mistrial was granted during the middle of an eight week federal drug trial in Florida after nine of the twelve jurors admitted to using the internet to do research on the case. Also last week, a defendant in a lawsuit said it plans to appeal a $12.6 million verdict rendered against it after a juror used Twitter to send updates during the trial. And this week, defense lawyers for former Pennsylvania state senator Vincent Fumo asked that a guilty verdict be thrown out after one of the jurors in that case used Twitter and Facebook to send updates.
So the question is, "where do we go from here?" In my opinion, there are two separate issues. The jurors using Twittering and the Facebook don’t really concern me that much. In most cases, we’re talking about 6 or 12 jurors on the eventual jury. It shouldn’t be difficult for the court or the lawyers involved with cases to monitor the Facebook or Twitter pages of 6-12 people during the course of the trial. And I suspect that if the judge gives the jurors an instruction not to use Facebook or Twitter and also tells the jurors that court personnel will be monitoring their accounts to make sure the jurors are following the instruction, that the number of posts or tweets will drop off dramatically. Now, there might be some jurors with anonymous accounts that are hard to find, but I think those would be a very small minority.
The bigger concern for me is the potential for jurors to perform internet research. There’s just no way to police jurors and stop internet research. I think the best judges can do is to instruct the jurors about the problems and then just hope for the best.
On the other side of the ball, the lawyers involved have to know that the jurors could potentially be researching the case via Google. That probably means we’ll have to have some other considerations in the way we try the cases. I’m not sure what form that would take, but at a minimum, we need to have staff members perform popular searches about the parties and the case so that at least we know what’s available to the prospective jurors.
I’d love to hear your thoughts on the matter. You can leave a long comment here, or send a short note to me via Twitter (@bschuelke).