A re-post of my article originally posted at
Thank you ABA for this wonderful opportunity to publish with you!
Many articles (e.g. William Bell, Daniel. “Juror Misconduct and the Internet,” American Journal of Criminal Law, 2010) and opinions (e.g. U.S. v. Fumo, 655 F.3d 288  opinion by Judge Richard Lowell Nygaard) have been written about the potential for juror misconduct when a juror posts information to their social media account or uses the Internet to “research” information about a trial.
Why does this topic seem to be increasing in frequency? And what role does technology play within these actions of misconduct?
Juror misconduct can take many forms, including:
Communication by the juror with those outside of the trial.
Gone are the days of communicating to others without the use of technology. Be it chatting on the phone, texting, posting to social media sites, using mobile apps… the channels of communication have undoubtedly changed. The majority of teenagers, who are early adopters of communication technologies, have made new friends online. Social media sites are the most common way to connect with these friends. So it not unrealistic to think that a juror’s preferred method of communicating to his (600 Facebook) friends is to post a message on his or her private Facebook page.
When the jury member brings outside evidence into the trial that they have found themselves, and this evidence had not been allowed into the trial by the judge or lawyers.
There are many legal ways to suppress information (motions in limine, motions to suppress, the prejudice/probative balancing test, objections, etc.). If a juror does “research” by way of Googling information, these suppression methods potentially become boondoggles.
For example, a juror may Google a defendant’s name in a criminal trial and find evidence of past crimes that might not have come into the current trial. Maybe the defendant was not going to testify or the judge would have barred the prosecutor of using evidence of a prior conviction to prove a defendant’s guilt or tendency to commit crimes. Either way, the juror, not the judge, has determined the admissibility of the evidence and may use this to presume that the defendant of a current trial is guilty.
On another note, we are living in an age where potentially any person can have an electronic platform to not only express their viewpoints but also solicit praise for them. Most news websites allow readers to vote for comments. Reddit allows users to vote up or down a story, and the most popular stories then get listed on the site’s homepage. This is a modern way to win a popularity contest that thrives on drama. If a story is dramatic or shocking in some way, it becomes more visible with the up votes, links, and shares.
So when a juror posts his or her news about a trial, they could be seeking praise and attention from their 600 Facebook friends. And, in what has been shown already, either the juror will ask for the friends’ advice or the friends will voluntarily advise the juror how to proceed in the trial.
In many ways, the trial process of barring jurors from posting trial information online or Googling information now runs counter to how jurors live.
Jurors may be not be able to stop themselves from going online.
Although the United States has not formally recognized internet addiction as a mental illness, there is a growing concern that Internet usage can be a more than a social problem. Currently, 85% of Americans go online. A study that was conducted in 2004 by Pew also found that 64% of Internet users say their daily routines and activities would be affected if they could no longer use the Internet, and older people are more likely than younger Internet users to go online to interact socially.
Although this data is a bit dated, it suggests that breaking jurors of the daily habit of going online and refraining from posting or searching may be akin to putting them through digital detox. It is an upwards battle.
There now exists a constant flow of information that is easily available.
In fact, people pride themselves when they find something out online. The word “Google” has become a verb, and it seems expected that people Google each other as a first-resort, not last-resort. Additionally, new movements (aka medical-patient-to-medical-patient forums) center on the discovering of on-line information and the digital connectivity between people.
So jurors may bring to a trial their existing mindset that Googling is only a good thing.
The gatekeepers of information have changed.
Compared to the past, the number of gatekeepers (individuals who controlled the flow of news stories) who provided information to others has exploded. Social media sites are increasingly being used to view content that is considered “news”, but without the traditional news anchors as the sole disseminators of the content. And distrust for the talking heads (ala Brian Williams) has further eroded the confidence of collecting news from only one source.
Judges and attorneys may be telling the jurors that their current method of news intake is not what is accepted in a court of law. It’s back to the single gatekeeper days, where the judge and the lawyers are the only disseminators of information. So jurors may not understand why this seemingly antiquated method is so important in the trial environment.
What should be done about this?
In 2011, Judge Nygaard wrote an opinion suggesting possible ways to stop juror misconduct. These included fining jurors, holding them in contempt, increasing the frequency of jury instructions, and screening out potential jurors during the voir dire process based upon their social media habits.
In 2012, the U.S. Judicial Conference Committee updated their model jury instructions (posted as a downloadable pdf hyperlink within this page) to try to deter juror use of social media during a trial.
We suggest revising these instructions again and clearly, succinctly, explain why jurors are being ordered to refrain from activities in which they might normally engage.
I order you to decide the case only on the evidence presented at this trial.
The reason is because the information from outside sources, both online and offline, might be wrong, incomplete, or inaccurate.
I order you not to talk with anyone, other than your fellow jurors during deliberations, about this trial.
The reason is because other people, whether they are talking to you in person or are an online friend, could bias your thinking.
As academics, we suggest an educational approach. Lawyers and judges can learn more about the ways jurors routinely communicate and the reasons for doing so. Jury instructions could then be written in a way to address these underlying practices and subsequently explain to the jurors the importance of adhering to the established system used in trials.