During my recent jury duty experience, I noticed posters around the assembly room entitled “Juror Responsibilities Regarding the Internet and Social Media” produced by the National Center for State Courts and Center for Jury Studies. I am well aware of the issues related to jurors and social media or the internet. And, I think I’d seen a mock up of this poster in the past in NSSC emails. But, being in the assembly room and seeing it on the wall, I had a different reaction than when I’d seen it previously. The poster states:
“FAIRNESS TO THE PARTIES IN ALL CASES REQUIRES THAT JURORS FOLLOW THESE RULES:
● Don’t research the case online in any way, including searching for information about the attorneys or judge.
● Don’t communicate anything about the case via Facebook, Twitter, Instagram or any online messaging service.
● Follow instructions by the judge or other court personnel.
● Immediately report unauthorized use of the Internet or social media to the judge or authorized court personnel.
By following these simple rules, jurors help ensure that all parties receive a fair trial.”
When a judge came down to conduct an initial voir dire on a long case, he essentially repeated these rules, in a very droll manner. There was no explanation of why; there was no explanation of the consequences. And, I have to say, that having heard the judge and read this poster in the context of being a juror, I object. I understand the problems and dangers of jurors and the internet. We have observed problems in our cases and we encourage clients to search and monitor social media at every trial. But, I object for several reasons, to the manner in which this crucial topic is presented to people who have no way to know what damage can be done. In 1957, Henry Fonda, in 12 Angry Men, did his own trial research by going out and buying a knife to match the evidentiary knife. No doubt thousands of jurors have done their homework privately, visited the crime scene, or considered details beyond the scope of the trial before and since then. Today it is easier than ever to do such homework – it just takes a few key strokes. Further, to those who are uninformed, the reasons for not doing so are not “simple.” Virtually everyone who has a smart phone or computer lets their fingers do the walking about almost every aspect of their lives. It is normal. Suggesting, in the last sentence of the poster, that these are “simple” rules in a world where doing some of these things is the norm undercuts reality, in my opinion, and, as a result, this comment seems somewhat condescending. I think this is an area where the judges, clerks, and ultimately, attorneys, who are involved with jurors need to address this in a non-condescending way and truly explain why these rules are in place, and what the ramifications and penalties are for not following the rules. As it was, it seemed like an afterthought, a conversation no one wanted to have and again, expecting prospective jurors to comprehend the severity of the problem they could inadvertently create, with a minimal recitation of “simple” rules, is not going to prevent a problem. Finally, despite the admonitions, trial attorneys must know what the jurors are likely to find when (not if) they do their own “googling” of the case. What will the internet tell them about your client? The reality is that, whether or not the jurors communicate information, “rule 2″, some of them will violate “rule 1.” Don’t be caught off guard.
David probably violated a rule when he took a photo of the sign, “Juror Responsibilities Regarding the Internet and Social Media.” The courthouse personnel who posted the sign should have posted another sign that said, “Take no photographs of this sign.” During Magnus’ jury research projects, I fill the role of the judge, meaning I have read the jury instructions pertaining to the internet and social media to our mock jurors hundreds of times. As with all the other instructions jurors are read throughout their participation in trials, the instructions on do’s and don’t’s pertaining to the internet and social media are largely received by the jurors with a bored yawn. In fact, it is my opinion that merely bringing to their attention all of the prohibitions about researching the case prods some jurors to do exactly the opposite of what they are being requested. It’s kind of like the old psychology trick of asking people not to think of the pink elephant. Guess what they can’t forget? The pink elephant, of course! The more we tell people not to do something, the more inclined many of them will be to do it, particularly when we fail to explain our reasons why we are making the request. The age old retort by parents whose children endlessly ask “Why can’t I do this?” of “Because I said so” doesn’t work for adults, not to mention most kids. Perhaps, a better way of handling this dilemma would be with a thoughtful, detailed explanation of the reasons why every jury verdict should be decided only on the information received during the trial and why outside information, not shared equally by all members of the jury, has a biasing effect on the jury’s decision. Perhaps treating citizens who serve on our juries with more respect would go a long way in securing their compliance with the rules, regardless of whether they are about the internet or other important aspects of courtroom decorum.