INTERNET SURFING JURORS
It (may have)1 happened here in Alabama during the Siegelman-Scrushy bribery and corruption trial in 2006. It happened during the 2001 trial of terrorism suspects in the African embassy bombings, when a New York juror allegedly researched a legal concept, "aiding and abetting" on the Internet. And it happened in Florida earlier this year during a manslaughter trial when a juror supposedly used his iPhone to research the meaning of the word "prudence" during deliberations. I'm talking about jurors violating their oaths not to research cases on their own – using their iPhones and their Blackberries, their laptops and their home computers.
At the beginning of any civil or criminal trial in Alabama, the judge will read this instruction to the jury:
No juror should attempt to make an individual investigation of the facts or of the place testified about. It therefore follows that you are not authorized to gather evidence on your own account or on behalf of any of the parties to this case. You should not [visit the scene of the accident][attempt to inspect or examine any object or property unless that object or property has been received in evidence and the inspection is made in the court room or in the jury room].
APJI 1.14. Jurors also hear APJI 1.22, which was amended in the last year to reference the Internet:
There may be some words or phrases or terms used in the trial of the case that need to be defined. The Court will give to you the proper definition of these words or terms. The legal definition may be different from that which you customarily give them. If this should happen, you must accept Court's definition. In no event should you seek any definition of any word or phrase by consulting any book, dictionary, encyclopedia, the Internet or other source. It would be highly improper for you to do so.
The idea behind the instructions, of course, is that cases should be decided on what occurs inside the courtroom, not outside of it. What could be more central to our notions of a fair trial than the principle that jurors should decide cases based solely on the evidence as presented by counsel and properly vetted by the Court?
The fact that jurors are sometimes tempted to conduct their own research is not particularly a new phenomenon. There are several cases on the books, including a 1993 case, Nowogorski v. Ford Motor Co., 579 So. 2d 586 (Ala. 1993), where a verdict was reversed and a juror admonished for bringing a dictionary into deliberations. But clearly the issue has taken on a whole new dimension with the easy and widespread access to information online about the cases, the parties, and the lawyers, not to mention the law itself. Curious to see the newspaper write-up about the accident at issue or to learn about a defendant's criminal history? Just dying to know what the inside of that plaintiff lawyer's office–or even his house-- looks like? All that information, and more, is available, quickly and easily, to today's juror. Is it too much temptation for jurors to resist?
Jefferson County Circuit Court's Presiding Judge Scott Vowell says "Its not so different from telling the jurors in a high profile 2 Interview with Jefferson County Circuit Court Judge Scott J. Vowell, July 31, 2008. 3 Id. 4 Id. 5 M McDonough, "Blogger's Posts Don't Equal Juror Misconduct", ABA Journal Report, October 6, 2006. case not to read the newspaper. Its really the same issue. Its just harder for the jurors to stay away from it now". 2 While Judge Vowell is not aware of any trial in Jefferson County where its been shown that a juror has done Internet research, Judge Vowell says he has observed a change in juror's attitudes about wanting more information about the cases. His response has been to emphasize at the beginning of any trial and at the close of evidence each day the fact that "they're limited by the rules of evidence and are only entitled to what has been obtained through the rules of evidence". 3 He has also been experimenting with taking written questions from the jurors about the testimony and witnesses that he then passes along to counsel. Judge Vowell's reasoning is that "it should take away their need to go elsewhere". 4
There is another twist to the Internet issue for the courts and trial lawyers to worry about and that is, jurors who blog. That's right, jurors who create online candid diaries about their experience as jurors. As the ABA Journal reported "prospective jurors and active jurors are already blogging about their past experiences, and at least on one occasion, directly from the courthouse during service". 5 The New Hampshire Supreme Court recently had to re-consider the conviction of a rapist who claimed he was denied a fair trial because his jury foreman was also a blogger who complained about having to show up for jury duty to deal with the local "riffraff". The court declined to reverse the conviction because the foreman's posts were not read by his fellow jurors and because he assured the trial court that he had followed his instructions once the jury was seated. The defense attorney, who discovered the blogger's comments postconviction, later said that if he had known about the foreman's blog posts during voir dire, he would have struck him for cause. 6
It's a cautionary tale and reason enough for trial lawyers to know about and understand blogging, a popular form of journals on the internet. Surely, when a juror blogs about his jury duty once he has been assigned to a case, he has violated his oath not to discuss the case. Jurors in Alabama also receive this instruction:
Until this case is submitted to you for your deliberations, you must not discuss the case with anyone nor permit anyone to discuss the case with you or in your hearing. You are to keep an open mind and you shall neither discuss nor decide any issue in this case among yourselves until the case is submitted to you for your deliberations under the instructions of the Court.
If members of your family or friends or anyone else should ask you about the case, you should tell them that you are under the Court's instruction not to discuss it. The attorneys, parties and witnesses are not permitted to talk to you during the trial. Even a discussion which has no relation to the case might give a bad appearance. If the participants in the trial fail to greet you or converse with you during this trial it will be due to this rule.
APJI 1.11. Earlier this year, following the murder conviction of a gang member, a California court held the jury foreman in contempt of court for writing a blog that exposed details of the case during a trial. 7 The foreman used his phone camera to take a picture of the murder weapon and posted it on his blog. The blog also contained criticisms of the judge's staff and complaints that the trial took too long. The case was expected to be appealed on grounds of juror misconduct, among others.
So now that you know some of the implications of ready access to information, what can you do? Be pro-active. Ask about internet use during voir dire. You want to know if jurors blog, read blogs, and/or comment on blogs. Do your own Internet research —on the jurors. Check during trial to see if any of your jurors are blogging. Check the social networks like Facebook and MySpace to see if any jurors are posting about the case or their jury experience, generally. Talk to your judges about the need to be even more specific about what jurors can and cannot do than perhaps they have been in the past. And consider contacting jurors after a trial to learn about possible misconduct.
As Judge Vowell says, "All the information that anybody could want is at their fingertips. If [jurors are] savvy, they can find out things they ought not to know, especially before they decide guilt or innocence. But you've got to be realistic about it. You can't sequester a jury. That would be the ideal, to keep them in an information vacuum but you just can't do that". 8