GOOGLE + JURIES = PROBLEMS?
Under the constitution, an “impartial jury” is guaranteed in criminal trials. However, with the advent of the internet, Google, and online social media, impartiality is becoming more questionable, and jurors are taking over their role as fact finders out of the court room and directly to online searches.
And it has observers wondering if an “impartial jury” is even possible, anymore. With technology continually evolving, the justice system will need to find ways to compensate, argues Caren Myers Morrison, an assistant professor at Georgia State University College of Law in an article titled Can the Jury Trial Survive Google? published the ABA’s Criminal Justice Winter 2011 issue.
Today, most jurors have access to news stories, television segments, blogs “opinions,” criminal records databases, social network pages, and general research tools such as Wikipedia and Google at their fingertips. And the have not been shy about availing themselves of these resources.
In addition to steps to compensate for heightened juror access to information outside of the trial, Morrison suggests that “we may need to reevaluate the jury’s role in a wider sense.”
I’ve heard it joked that people on jury duty are not the brightest individuals, as evidenced that if they were they would have gotten out of jury duty in the first place. John Cusack starred with Gene Hackman and Dustin Hoffman in the movie version of John Grisham‘s novel Runaway Jury, in which Cusack played man who got himself placed on jury duty, where he then manipulated the other members of the jury to get revenge on an unscrupulous gun manufacturer. It featured black and white caricatures, but the lesson was real–juries can be manipulated by sophisticated individuals using expert knowledge of the facts and of the law.
In Grisham’s world, the good guys won, but in the real world, it isn’t nearly so black and white. The rules of evidence are designed to keep a tight lid on attorneys in court, to assure a level playing field, as best as possible, with the power of the state and prosecutor on one side and the rights of the defendant, presumed innocent until proven guilty, on the other. As jurors are able to begin accessing information outside of those guarded limits, “impartiality” becomes an open question.
Unfortunately, that doesn’t mean that jurors will always feel like they are getting enough information to do their job competently. As quoted by Morrison:
“The legal system is not designed to discover truth, but rather to reward whichever party presents the most convincing argument,” observed one former juror. “As someone who has sat on several juries, in each case myself and the other jurors felt frustrated by the lack of key information that would help us feel comfortable that we had made the right decision. We also felt deeply frustrated at our inability to fill those gaps in our knowledge.”
So, with that frustration in hand, jurors head home at night, open their laptops, and start Googling. That is, when they haven’t already started searching from their mobile phones while still in court.
WHAT ARE THE PROBLEMS?
Morrison lists several problems for the impartial jury due to easy access to the internet.
- First, juror blog postings, status updates, and tweets “might chill robust discussion inside the jury room.” Why speak up if your fellow jurors are going to lam-blast you online?
- Second, jurors use the internet to ask for opinions. It’s a violation of the jurors oath, even if it does occur only rarely.
- Third, messages from inside the juror “black box” dispels and “subvert[s] the gravity of the process.”
Another major problem, one well demonstrated by “Runaway Jury,” is improper contacts with jurors. Facebook, MySpace
, and Twitter all present ways that jurors can be contacted, and can contact, defendants, witnesses, and attorneys associated with the case, to say nothing of the media.
The more people are linked through a complex of contacts, listservs, dating databases, and friend pages, the more these chance encounters become likely, causing not only the embarrassment of seeing trial participants in unexpected contexts, but also possible prejudice to the parties. Who could take an expert seriously after learning that he is looking for “that special someone”?
There are several suggestions that Morrison presents to these problems, though she states that their efficacy is still open:
- Jury Instructions: specifically advise jurors that they are, as the Federal Judicial Conference has modeled, not to access the Internet using their telephone, cell phone, smart phone, iPhone, Blackberry or computer, nor to chat about the case in chat rooms, blogs, or websites such as Facebook, My Space, LinkedIn, YouTube or Twitter…etc., etc., etc.
- Explain why. If jurors understand, they are more likely to listen and heed the instructions.
- For extremely short trials, confiscate electronic devices as jurors enter the courthouse. However, this won’t help in any case that last more than one day.
- Allow jurors to take notes, ask questions of the witnesses, and request clarification. Questions can be written and submitted to the judge to ask, and they can help jurors feel more able to get access to the information they need to make a judgment.
- Zero tolerance for juror contacts. The threat of fine or contempt of court should be a fair and sufficient method for keeping jurors from making inappropriate contacts during trial.
Morrison’s article “Can the Jury Trial Survive Google?
” is a fascinating look at the problems juries face in the age of Google. It shares a wealth of anecdotes and insights. It’s not available online yet, but should be in the next couple months. Morrison also has an excellent paper on the topic here