Washington Courts Displaying "Focus on the Courtroom" Poster in Deliberation Rooms

At the upper right margin you will find a poster being displayed by Washington Courts to focus jurors on their duties. Link:

http://www.courts.wa.gov/newsinfo/content/juryRoomPoster.jpg

Judges Need to Explain Why Social Media Rules Are Necessary for Fairness

Earlier this week I interviewed Minnesota litigation consultant Susan Macpherson for the District Court Show (see link at right).  She confirmed my conclusion that judges should not simply pass rules prohibiting jurors' use of social media and the Internet for research, but that the need for fairness to the parties must be explained in detail by the judge.

 I found preliminary jury instructions adopted by the Ohio Bar Association which is a good start to address these issues.  I would add even more explaining about fairness.
Just "google" this phrase: Ohio Bar Association Social Media Jury Instructions

I  will add a post when the District Court Show episode with Ms. Macpherson is available for viewing on the QCTV website.

Juror Number 8 in "12 Angry Men" Guilty of Misconduct

Probably the most famous movie about juror behavior and deliberations is 12 Angry Men (United Artists 1967).  Henry Fonda plays juror number 8, the lone holdout, who conducts his own research when deliberations focus on a unique knife allegedly used by the defendant.  Fonda goes to the neighborhood of the crime and buys an identical knife which he shows his fellow jurors.  What is this?  Misconduct of a juror by bringing extrinisic evidence not admitted at trial into the jury's deliberations.  Makes for good drama, but violates his oath and is unfair to the prosecution.  Had this drama been set in 2011 he could have simply looked for similar knives on the Internet via Ebay, knife collector websites, or Amazon.  The desire of juror's to conduct their own research is not a new product of the Age of Social Media.

Defense Seeks to Have Conviction From Bench Trial Overturned: Alleges Judge's Adult Children Were Facebook Friends With Victim's Family

An Illinois woman convicted of child battering is seeking to have her conviction following a bench trial overturned, alleging the judge should have recused himself because the judge's adult children are Facebook "friends" with members of the victim's family.  The prosecution has argued that being Facebook "friends" is meaningless and that there is no evidence the judge knew who his adult child's Facebook friends were or would care.
Link:   http://heraldnews.suntimes.com/9426713-417/judges-kids-facebook-friends-at-issue-in-bid-for-a-new-trial.html

Arkansas Death Row Inmate Granted New Trial Due to Tweeting and Sleeping Jurors

See post below dated 11-21-11.  The conviction has been overturned and a new trial ordered.  This was just announced by Arkansas Supreme Court, so just "Google":

Arkansas Death Row New Trial

There are several stories.

Disconnecting the Wired or Wifi'ed Juror

I participated in a panel discussion at a Minnesota Judicial Conference and gave this Power Point presentation.  Click the second line below:

<div style="width:425px" id="__ss_10520836"> <strong style="display:block;margin:12px 0 4px"><a href="http://www.slideshare.net/stevejudge123/disconnecting-the-wiredwifidjuror-2-10520836" title="Disconnecting the wiredwifidjuror (2)" target="_blank">Disconnecting the wiredwifidjuror (2)</a></strong> <iframe src="http://www.slideshare.net/slideshow/embed_code/10520836" width="425" height="355" frameborder="0" marginwidth="0" marginheight="0" scrolling="no"></iframe> <div style="padding:5px 0 12px"> View more <a href="http://www.slideshare.net/" target="_blank">presentations</a> from <a href="http://www.slideshare.net/stevejudge123" target="_blank">stevejudge123</a> </div> </div>

MA Court Allows Blogs and Tweeting by New Media During "Open Court"

Recently Quincy (MA) District Court allowed live tweeting, blogging and video-streaming from the courtroom.  Link to article:  www.patriotledger.com/news
Link to article on "Open Court" dated Dec. 6, 2011 is in middle under the heading "Cops and Courts.".

Would Granting Reasonable Accommodations to Jurors Include Use of Computer?

Rules governing jury service include that the court must provide reasonable accommodations to jurors, including providing sign language interpreters for deaf jurors, large seats for jurors of large stature, and facilities for breast-feeding mothers or persons requiring frequent medication.  In discussing juror misconduct with other judges, one raised a good point.  What if a juror says they would prefer to take notes on a laptop or tablet computer (such as an Ipad) or smartphone  instead of handwriting on a paper tablet?  What would be the court's response and on what basis?  I doubt a juror would find it acceptable for the judge to simply say "No, and because I said "no."  If judges simply start to adopt rules to prohibit such use of technology, how can we allow attorneys, clerks, jury consultants, and others in the courtroom to use computers but not the jurors?  Certainly issues arise such as how do we make certain the juror is not making an audio recording of the proceedings or doing Internet research or "tweeting" while on a break or lunch.  Also, judges probably haven't even thought of what types of technology will be available in 6 months or a year.  The smartphone could be the size of a wrist watch or roll up like a piece of paper ( seen in futuristic movies).  The bottom line is that the courts need to evaluate these issues far beyond just setting more rules against use of technology by jurors.

How Did They DO That? Tweeting From the Jury Box!

It is reported that an Arkansas juror tweeted from the jury box in a death penalty case currently on appeal.
Only after several tweets was the juror discovered. The trial judge did not dismiss the juror (or another that was sleeping) because the tweets were about the juror's feelings.
For news stories, and there are many as it was reported by AP, just search on Google:

Arkansas Juror Tweets Death Row Case

Blogging Juror Fails to Overturn $4.75 Million Verdict on Appeal

Link: http://www.abajournal.com/news/article/illinois_appeals_court_upholds_verdict_despite_blogging_jurors_observations/

Should Jurors Be Permitted to Do Independent Research?

A thought-provoking article suggesting that task forces be appointed to consider the issues surrounding the "wired juror" may be found at http://www.thejuryexpert.com/.  (Go to March 2011 issue, then search Blackman and Brickman)  (Title: Let's Talk: Addressing the Challenges of Internet-Era Jurors)  The authors raise a multitude of questions and acknowledge the great complexity of the issues.  One question:  should the courts allow jurors to satisfy their "itch to know" (ie. Googling terms) while at the same time quelling their "itch to tell?"(ie using Facebook)  Jurors could be instructed that what they find by Googling must be given lesser weight.

I like the quote from the winner of a 2010 law school legal writing contest (at p. 3):

A major question is whether the protective cocoon we want to preserve of the courtroom trial, where jurors calmly and dispassionately receive only relevant and reliable information based on evidentiary rules...can viably be maintained in the face of the informational tsunami pressing against it."  (Gareth Lacy, U of Washington)

We need to start discussing this question rather than just try to fight the informational tsunami.

Understanding Juror Misconduct: Poor Juror Compensation May be One Factor

There has certainly been no dearth of cases where jurors have failed to follow the court's instructions as to Internet media and use of social media during trials.  There is a dearth, however, of social science research as to juror motivations for this misconduct.  I continue to look for social science commentary in this area with little success over the past couple of months.

An article in the Southern California Interdisciplinary Law Journal (Vol. 14: 31, 2004) entitled "Using Experimental Economics to Peek into the 'Black Box' of Jury Behavior: A Proposal for Jury Research Reform," while focusing on economic analysis of jury deliberations and outcomes, contains the following statements which confirm some of my own conclusions:

    Page 35  Another concern is the likelihood that jurors will put less than the appropriate amount   of effort in understanding and deciding a case...the fact that jury service is generally compelled by law, but compensated poorly, certainly provides a breeding ground for such apathy.  Add to that the modern notion that jury service is an unceremonious burden rather than a privilege, and one can see why a juror may feel less than inspired to devote herself to the case at hand. (emphasis supplied)

It troubles me that we judges and court administrators, due to budgetary challenges, have failed to even come close to compensating jurors for their service.  In Minnesota a few years ago the daily jury fee was reduced to $10 and mileage is paid at 27 cents or only about 1/2 of the federal rate.  After the months-long tobacco trial in federal court in MN several years ago it was reported that several of the jurors were compelled to file bankruptcy as a result of loss of income during the trial.  In the semi-rural county where I serve many of the jurors are not paid by their employers during jury service. Therefore, their service is a financial hardship to their families.

I found an article listing historical data on jury fees around the country.  Here is the daily rate in MN:
                                                                 In 2010 dollars
1869   $2 (142 years ago)                 $33
1907   $3                                          $71.80
1937   $4 (Depression-era)
1953   $6                                          $48.90
1989   $15                                        $26.40
2011   $10

Link to state jury fee survey:  http://www.matrixbookstore.biz/trial_jury.htm

Federal jurors are paid $40 daily plus mileage.

One step toward encouraging jurors to follow the judge's instructions would be to reasonably compensate them for their service and make service less of an outright hardship.  Will it be expensive?  Certainly.  Is it necessary? Absolutely!

Ohio Supreme Court Reviews Standard for Granting Mistrial for Juror Misconduct

The standard for granting a mistrial for juror misconduct was the subject of oral arguments this week before the Supreme Court of Ohio.  During deliberations a juror conducted internet research and brought definitions of "manslaughter: involuntary" and "perverse" to deliberations even though the judge had declined to provide a definition for the latter term.  After discussing the matter with counsel and questioning the juror (as well as allowing counsel to question), the judge granted the state's motion for a mistrial.
Good article and links to briefs is at:  http://www.legallyspeakingohio.com/2011/10/oral-argument-preview-what-standard-should-be-used-to-grant-a-mistrial-for-juror-misconduct

Bailiff Training May Need Evaluation to Avoid Mistrials

Earlier this year a judge in my judicial district declared a mistrial in a felony domestic assault case when a bailiff in charge of the jury during deliberations met the need of the jury but caused the mistrial.  The jury foreperson requested a dictionary and, being persistent, pressed the bailiff for help...to which the bailiff handed the foreperson an electronic dictionary to look up a legal term in the jury instructions.  The judge determined that under Remmer v. U.S., 347 U.S. 227 (1954) this communication was presumptively prejudicial. 
But wait! That is not all.  Then the judge was informed by jurors that overnight a fellow juror had called a friend of his who is a police officer to discuss the definition of assault. Hence, a mistrial and a substantial waste of public resources, juror inconvenience, and defendant and victim stress.  These incidents are symptomatic of many jurors desire for "information on demand."
Not only jurors, but bailiffs, need education on the admonitions against use of social media and the Internet during trial.

Fourth Murder trial of Same Defendant May Result in Another Mistrial, This Time for Juror Misconduct

In Fresno, CA, a defendant tried a 4th time and convicted of attempted murder, may get a 5th trial.  Defense counsel claims a juror has admitted to viewing a news story about the case during trial.  I'll follow this and update as events unfold...

More Mistrials for Juror Misconduct

A mistrial has been declared in Nashua, New Hampshire, after the judge determined that a juror researched information about the defendant during the first-degree assault trial, which had resulted in a conviction.  The news story I read makes no reference to the Internet, but I think one can reasonably conclude that the research was done on the Web.
Link: www.nashuatelegraph.com/news
Then search: Santos trial

Also a mistrial in Bergen County, NJ, after a juror brings to deliberations definitions of legal terms such as "reasonable doubt" and "preponderance of the evidence" that he found on the Internet.  The juror, however, avoided being found in contempt of Court.



 

New California Law Prohibits Jurors' Use of Social Media

Effective January 1, 2012, California jurors who violate a judge's instructions not to use social media or conduct research about the case may be punished with contempt of court, a misdemeanor.  This legislation was passed after several mistrials or near-mistrials occurred over the past several years when jurors have blogged or conducted research or otherwise used social media during trials.  (see my prior posts, below) Former Gov. Schwarzenegger had vetoed prior attempts at such legislation.  See story at http://www.citmedialaw.org/blog/2011/new-california-law-prohibits-jurors-social-media-use
including a link to the new statute, 2011 Cal. Laws chap.181.

In California it appears that these jury instructions are mandated by statute, not court rule.  Section 1122 of the Penal Code states "(a)...The instructions shall include, among other things, all of the following admonitions...(1)...The court shall clearly explain, as part of the admonishment, that the prohibition on conversation, research, and dissemination of information applies to all forms of electronic and wireless communication." 

Texas also recently amended its jury instructions to mandate admonitions against jurors using Facebook or Twitter during trial. (TRCP 226A)

Jurors' Pledge: "I solemnly swear not to do research on the internet...": Judge considers exacting written pledge

The NY Times reported on September 18 that Federal Judge Shira Scheindlin is considering asking jurors to sign a written pledge that they would not do any research on the Internet during the trial. http://www.nytimes.com/2011/09/19/nyregion   (then search "juror pledge")

Prof. Stephen Gillers of NYU Law School was quoted as stating,"Judge Scheindlin apparently believes that the affirmative act of actually signing a specific pledge may more dramatically impress jurors with their duty and increase the likelihood of obedience.  I think she's correct.  It can help and certainly can't hurt."

I have read elsewhere that such admonitions may encourage some jurors to seek out the "forbidden fruit."
It's a tough call.

Judges' Responses to Juror Misconduct Vary Widely: From No Consequence to 8 Months in Jail

Opinions can vary widely among judges and lawyers as to the appropriate response or sanctions (beyond mistrial) to a juror's misconduct.  Here is a sampling of responses:

1.  State v. Christian et al. in California.  The judge instructed the jurors under CALCRIM 101 that they were not to share information about the case on the Internet.  A juror posted comments on Facebook during trial.  Counsel sought access to the postings.  The issue arose whether Facebook was prohibited from disclosing the contents of the postings under the Electronic Communications Act (Title 18 USC sec. 2701).  The judge ordered the juror to execute a written consent to access to the postings for in camera review.  (Reported in Forbes magazine)

2.  In September 2010 a Detroit judge discovered a juror had been commenting on Facebook during deliberations, "it'll be fun to tell the defendant they're guilty."  The juror was ordered to pay a $250 fine and write a 5-page essay on the right to a fair trial under the 6th Amendment. (reported in the Huffington Post 9-2-2010) (also ABA Journal)

3.  FTA: Failing to Appear for jury duty is resulting in fines and arrest warrants for those jurors who fail to appear after issued an order to show cause for failing to respond to a jury summons.  Wayne County Chief Judge Timothy Kenny warned jurors of fines and threatened jail time if they failed to appear a second time for jury duty. (Reported in The Detroit News 8-17-11)

4.  In Arlington, TX, a juror in a civil trial sent a Facebook friend request to the defendant, who promptly contacted her lawyer, who then informed the judge.  Consequence?  Four counts of contempt of court and 2 days of community service. (Reported http://www.jetlaw.org/?p=7896)

5.  Most severe punishment found so far:  A multimillion-pound drug trial ended in a mistrial when a juror contacted the defendant on Facebook.  The juror was found in contempt of court and  has been sentenced to 8 months in prison. (reported 6-16-11 in the Guardian in the UK)

6. See Posting dated October 4, 2011- no finding of contempt

JURY SELECTION: VOIR DIRE QUESTIONS REGARDING PROHIBITION ON INTERNET USE

Anoka County (MN) District Court Judge Alan Pendleton provided me with these voir dire questions regarding the prohibition on Internet research and misuse of social media during trial:

1.  How many of you own a mobile electronic device such as a Blackberry or iPhone?

2.  How many of you have access to the Internet at home or elsewhere?

3.  How many of you regularly access social network sites such as Facebook or Twitter or MySpace?

4.  During this trial you will be strictly prohibited from conducting any type of Internet research on the parties, attorneys or issues involved in the case.  You will be prohibited from posting information about the trial on social network sites such as Facebook, Twitter and MySpace.  You will also be prohibited from bringing any electronic devices into the jury room during your deliberations.  Any violation of that prohibition would jeopardize the entire trial; it could result in a mistrial and the parties would have to start all over with a new jury.

5.  Is there anyone here that would not be willing or able to respect and comply with that prohibition?

Sample instructions from the American College of Trial Lawyers (see post regarding "Links to Helpful Resources" below) are more detailed and include the following:

        Reference to Smartphones, PDA's;  LinkedIn.

        You may not do any personal investigation, including visiting any of the places involved in this    case, using Internet maps or Google Earth, talking to any possible witnesses, or creating your own demonstrations or reenactment of the events which are the subject of this case.

QUERY:  Are threats of contempt counter-productive and simply inviting the anti-government juror to violate the court's instructions?  Your comments are appreciated.

Judge's Challenge:     Our challenge is to remain current in our admonitions and include as many devices (tablets) and search engines (Yahoo, Bing) and social media (You Tube, Twitter) as possible.                

Juror DIsmissed for Talking to Prosecution Witness During a Break

It is reported in the Twin Cities newspapers that on September 13 a juror in a Hennepin County (MN)murder trial has been dismissed for speaking to a prosecution witness in the hallway outside the courtroom during a break.  Judge Cahill is reported to have given a stern warning (threat of contempt and jail) to members of the audience, both in English and in Somali via an interpreter, that they must not speak to wittnesses.

In May 2011 during the infamous Casey Anthony murder trial a prospective juror was fined $450 during jury selection for talking to a reporter despite having been instructed not to talk to anyone about the case.  After being fined he said, "Well, at least I got out of jury duty."

Motivations for Juror Misconduct

Social scientitsts have begun to comment on what motivates jurors to do Internet research, blog or "tweet during trial.  Most jurors "want to get it right." They have become accustomed to:
  
   A.   Having instant access to any information they want from a search engine like Google;
   B.  Obtaining this information without a middleman, such as a travel agent or salesperson;
   C.  Discussing every detail of their lives and the lives of others on social media sites such as Facebook.

Jurors also are subject to the effects of "reactive theory," that is, that they covet (want) the information the judge and lawyers tell them they cannot have, ie. the forbidden fruit.   Some jurors may be offended that the judges and lawyers, who they perceive are in an exclusive Club, are "spoon-feeding" them information only as allowed under their rules of evidence.   Jurors may think everything on the Internet should be accessible because "it must be true...it's on the Internet!"

How do judges deal with this phenomenon?  Explain...explain...and explain some more.   Judges should not just tell the jurors that these are the rules because I say so!   Judges should explain that the rules have developed over several centuries and are meant to insure that all parties involved have a fair trial.

Links to Helpful Resources

Judge Donald Shelton's Instructions:  http://www.ncsc.org/topics/jury/jury-selection-trial-and-deliberations/resource-guide.aspx


"Sequestration for the Twenty-first Century: Disconnecting Jurors from the Internet During Trial", 59 Drake L. Rev. 621, Spring 2011

"Can the Jury Trial Survive Google?", Criminal Justice (An ABA journal)  Winter 2011

"Social Media and Jurors," Maryland Bar Journal, November 2010, by Judge Dennis Sweeney; see also his blog at:  http://jurytrialsandsocialnetworks.wordpress.com/

"Jury Instructions Cautioning Against Use of Internet and Social Networking, " American College of Trial Lawyers, September 2010

"A Practical Framework for Preventing 'Mistrial by Twitter,'"  28 Cardozo Arts & Entertainment L.J. (2010-11)

"The Wired Juror, Unplugged,"  TRIAL, November 2010, bu Susan MacPherson & Beth Bonora.

Launching a New Blog on Misbehaving Jurors & Social Media

The collision of the information age and social media with traditional litigation rules has resulted in a significant increase in juror misbehavior, including in deliberations, resulting in mistrials and a waste of precious judicial resources.  Only recently have social scientists published studies which attempt to both describe and explain this juror behavior.  My goal is to provide links to resources available to judges and lawyers dealing with these issues, including sample jury instructions and voir dire questions.  My hope is that judges and lawyers will share their experiences so that we can learn from each other, minimize juror misconduct, promote juror education, and pursue the assurance of fair trials to all citizens.