Over a century ago Justice Holmes wrote that “[t]he theory of our [legal] system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.” Patterson v. Colorado, 205 U.S. 454, 462 (1907). Holmes’ words ring as true today as they did a generation ago. Without the power to effectively control the admission of evidence, a judge cannot ensure that justice is done. Unfortunately, judges are finding it increasing difficult to control what evidence jurors consider. In today’s information flooded, total-connectedness world, short of sequestering all jurors in multi-day trials and holding them prisoner, it may well prove impossible. This is turn may mean the end of the jury trial as we know it.
We live in an information age, a new period in history literally and semantically defined by the ability of individuals to transfer information freely, and to have instantaneous access to information that would have been difficult or impossible to find in Holmes’ time. More and more Americans never leave home without an Internet-enabled Smartphone at their hip. Many are accustomed to quickly and easily looking up an answer to any question on such a phone, and receiving an instant answer. They want information, and they want it now, and they will sometimes go to great lengths to get it.
We are all rapidly becoming addicted to this flow of information, and increasingly intolerant about being left in the dark about anything. Jurors are much the same. As a consequence, juror curiosity is wrecking havoc in courtrooms across the country. You may take them to a jury room, isolate them, hold them there against their will, and give them a number, but inside they still remain what they were before, free and connected. More and more jurors refuse to limit their information to what the courtroom says is true, no matter what rules and threats the judge may impose. They insist that they are not a number, they are a free Man. And as such they will look at all of the information they can find, not just what the Village chooses to say is real.
Earlier this year in Florida, Judge William J. Zloch presided over a case where the Defendant spent almost eight weeks fighting charges that he had illegally sold prescription drugs through bogus Internet pharmacies. The trial made it through closing arguments, and while the jury was deliberating a juror contacted the judge to report that another juror had admitted to her that he had done outside research on the case over the Internet.
Judge Zloch questioned the juror about his research, and found that it included evidence that the judge had specifically excluded. At this point, the trial might have still been salvageable; the juror could have been removed from the jury and deliberations could continue. However, Judge Zloch stumbled upon further juror misconduct. Eight other jurors had been doing independent research, blatantly disregarding the jury instructions.
These jurors were conducting Google searches on the lawyers, on the defendant, looking up news articles about the case, checking definitions on Wikipedia, and searching for evidence that had been specifically excluded by the judge.
One juror, when asked by Judge Zloch about the research, responded “[w]ell, I was curious.”
The New York Times coined the phrase “Google mistrial[,]” in an article describing this trial, and opined that there will be more and more Google mistrials as more and more incoming jurors are Internet savvy. Judge Zloch happened to stumble on this misconduct, but it is likely that jurors do similar research in the majority of jury trials lasting more than a day. And from the jurors’ perspective, why not? Why should they believe the judge, who some think is just a new version of The Prisoner’s Number 2, dressed in a black robe.
To the average juror, there is no real harm or consequence from violating the jury instructions. Jurors resent the fact that information is controlled by the judge. They believe they should be privy to anything that either side wants to present to them. Nothing perks juror interest like an objection, and jurors now have the ability to overrule a judge’s decision to exclude evidence by simply going online and doing some digging.
Moreover, jurors care greatly about plenty of irrelevant issues. As indicated by what the jurors were researching in the original Google mistrial, jurors often care about who the lawyers are and about a variety of information completely irrelevant to the case presented.
Jurors may decide to look up an accident scene on Google Maps, and draw erroneous conclusions based on an amateur assessment of the area. They may decide that they dislike the lawyer’s web page and hold that against the client. They may simply Google the Defendant’s name and base their decision on what they gather to be the Defendant’s reputation from a spattering of blog postings and search results.
I am sure that many jury verdicts in the past few years have swung one way or another based on independent juror research. This is especially frustrating considering the amount of money spent in litigation. I have served on a jury once myself and know first hand just how vague and uncertain the whole jury deliberation process is.
The adversarial system involves huge transaction costs, and woeful inefficiencies. Large fortunes are spent in most major litigations. Our system tolerates these costs, as it puts a very high premium on the truth-finding properties of the adversarial system. Much like our system is skewed in the criminal context to allow ten guilty men to go free, rather than risk an innocent man going to jail, it is skewed in the civil arena to allow for fortunes to be spent on legal fees so that the legal claims are forced to go through a regimented process.
If the parties put vast resources into a trial, and the jury reaches a decision based upon extraneous evidence, huge amounts of resources have been wasted. Assuming both parties have plausible claims and the jury will reach a decision based upon extraneous variables that have little to do with the merits of either parties claims, it would be more efficient to flip a coin at the outset and skip the transaction costs.
Contrary to juror conceptions, for our system to work judges must be able to control a juror’s access to information. The adversarial system works in large part as a result of cross-examination, and counsel has no way to challenge information a juror secretly obtains. No one can cross-examine what they can not see or hear. Much as innocent curiosity killed the cat, juror curiosity threatens to kill the effectiveness of our adversarial system.
And why should the juror care? Jury duty is not something many approach with enthusiasm, and many jurors ignore (if they even listen to) judicial instructions to refrain from conducting independent research. There is very little chance that independent jury research will be detected; there is no surefire and efficient way to tell if a juror has been poking around the Internet.
Judges have the ability to sequester a jury, but doing so is expensive and often a waste of scarce judicial resources. Outside of sequestration, there is little a judge can do to control what a juror researches at home. While a court could theoretically monitor jury Internet usage, doing so would be expensive and likely run afoul of a bevy of privacy rights.
Even if a judge catches a juror doing outside research, what does the juror care? The juror would likely be dismissed, a fate that many jurors would welcome rather than fear. The chances of the judge holding a juror to task for independent research are slim to none; few judges want to expend the resources or generate the ill-will that would accompany holding a juror in contempt, much less fining them or sending them to jail. Yet, to continue the jury system judges may well have to get tough. There is no way Number 6 types will obey Number 2, but for the scary, screaming Bubble and ocassional Village accident.
At the end of the day, a judge often has no choice but to trust jurors to follow instructions. And, predictably, jurors catch onto this quickly and realize they can look up what they like, consequence free.
So, how to prevent Google mistrials? With our current system in place, total prevention is likely impossible. Still, steps can be taken to minimize the risk. Judges can impress upon jurors their duty to refrain from doing any sort of outside research, and to suppress their curiosity for the duration of the trial. If a judge makes it very clear from the outset of the jury selection what is prohibited (i.e., any Internet search on the lawyers, evidence, ect.) than it is less likely that a juror will run afoul of the rules.
Taking away jurors’ phones is also a must and a very easy preventative step to take. While some judges are surprisingly hesitant to ban phones from their courtroom, keeping phones out of the courtroom prevents jurors from conducting research while they are in the courthouse, keeps the jurors attentions focused on the trial as opposed to text messages and video games, and helps minimize courtroom disruptions.
Fear, however, is probably the most powerful motivator in existence. Impressing upon jurors the personal potential consequences (even if unlikely) of violating the jury instructions might be able to skew the juror’s internal cost-benefit analysis of violating the rules via independent research. If a judge makes it clear to a jury that indulging in curiosity and running a few quick Google searches could result in jail time and a fine, that jury pool is far less likely to put their necks on the line simply to satisfy their curiosity.
This, however, brings up a thorny issue. For this warning to stick, some jurors need to be made examples of. Some judges may need to fine or jail jurors in order to stop the trend cold before it grows out of hand. But this would be a tough thing to do. Jury duty is not particularly popular, and prosecuting jurors would not exactly make jury duty more so. No judge looks forward to holding anyone in the courtroom in contempt, much less a juror.
Still, the only plausible way to stop this practice cold is to establish a system of juror monitoring based upon sampling accompanied by consequences for those who violate jury instructions.
As the original Google mistrial showed, if a judge questions one juror about independent research, the judge can often get a feel for whether the jury as a whole has been conducting Internet research. Courts should make this a standard practice; in each jury trial one juror should be randomly singled out and questioned at length about whether the jurors have been conducting Internet or other independent research. If jurors have been doing so, then sadly it seems necessary to make examples of a few juries in order to put the fear of prosecution into future jury pools. The very survival of the jury system of justice in the Information Age may depend on it.
While Google mistrials are a serious threat, technology should not be wholesale feared by the judiciary. Much like information, technology simply needs to be managed appropriately.
United States District Judge J. Thomas Marten allowed a reporter to Twitter court proceedings in a trial of six “Crips” gang defendants taking place in his Wichita, Kansas courtroom. Twitter, a micro-blogging service, allows its users to send and read messages known as “tweets.” Tweets are text-based posts of up to 140 characters displayed on the author’s profile page and delivered to the author’s subscribers who are known as “followers.” Senders can restrict delivery to those in their circle of friends or, by default, allow open access. Users can send and receive tweets via the Twitter website, Short Message Service (SMS), or other external applications.
Judge Marten’s decision to allow the reporter to Twitter proceedings made sense. Tweeting does not involve video or audio recordings of witnesses or of the trial. There is a big difference between allowing an audio or video broadcast of a witnesses testifying and allowing for reporters’ perception of the same testimony. Allowing a reporter to tweet simply allows the reporter to speed up the journalistic process, as the reporter could always post impressions on a blog or other avenue during breaks in the trial.
Judge Martin reports that the permitted courtroom-twitters were a very positive experience for him, the reporter, and the public. Surprisingly, a good portion of what was “tweeted” wasn’t actually updates of the trial, but commentary on the architecture and appearance of the courtroom.
Unfortunately, reporters have not been the only tweeters in the courtroom. Jurors that tweet in their everyday lives will also likely try to continue to do so while serving on a jury.
As a recent example, a building materials company in Arkansas appealed a $12.6 million verdict, saying a juror’s Twitter messages sent before and after the trial showed that he was biased against the company.
Some of the tweets he sent during the trial read as follows: “oh and nobody buy Stoam. It’s bad mojo and they’ll probably cease to exist now that their wallet is $12 million dollar lighter” and, the next tweet, “So, Johnathan, what did you do today? Oh nothing really, I just gave away TWELVE MILLION DOLLARS of somebody else’s money.”
Jurors also often send Facebook updates from the courthouse. This year in Cincinnati, potential juror Barry Price accessed Facebook from the courthouse and posted that he was “[S]itting in hell . . . aka jury duty[.]” Plaintiff’s counsel had a computer in the courthouse as well, found the update, filed a motion to excuse Mr. Price from the jury, and the court promptly granted the motion.
Constant vigilance in monitoring juror communications is another price of a jury trial. This presents a new challenge for trial lawyers, yet, as this case shows, one that can be easily met.
Be seeing you.
Special thanks and credit to Adam C. Losey for “helping” me to write this week’s blog. The idea and most of the words are his. I added the Prisoner overlay, some of the comments, and the photos. Otherwise, this is all his.
Thanks Adam and good work! I needed a day off.
In March 2009 it was reported that a juror “tweeted” during a trial:
“Stoam Holdings, in Fayetteville, Arkansas, is seeking a new trial on the grounds that a juror sent eight short messages or “tweets” – to the micro-blogging website on his mobile phone.”
The next step, and I’d be surprised if it hasn’t happened already, will be for a juror to look up information whilst seated in the jury box and to engage in a dialogue with someone outside the court.
Just another aspect of society failing to understand the interconnectedness of all things*.
[* With apologies to Douglas Adams.]
First, while ‘a jury of one’s peers’ appears nowhere in the Constitution, we are entitled to a fair and impartial jury from the State and district in which the trial is held, (which is often viewed as the source for the ‘peers’ statement.) Given modern demographics as compared to the demographics in 1782, our new interconnectedness is not necessarily a bad thing. Juries were necessarily influenced by many things, for good or ill, that did not come in as admitted evidence, when everyone in the district knew pretty much everyone else. Cases have been decided on reputation, fame or infamy since the first jury was empanelled.
Second, it seems to me this is another justification for training lawyers in electronic investigation and discovery, with emphasis on investigation. Both sides should pretty much know all there is to know about each other as it exists on the ‘net and should be ready, willing and able to take steps to neutralize it. I know this is only a halfway solution – you want to be able to rely on the results of motions to exclude, but juries work because we want justice based on a decision based on common ken, common sense and social truth. Otherwise, why have juries at all?
Ralph (and Adam):
A couple of other observations in addition to Williams.’
The reason most “normal” people hate jury duty is that they are not paid anything to compensate them for what they lose. Even if their employer doesn’t tell them to take the time as vacation days, the work they were supposed to do is still waiting for them and they end up losing personal time. Threatening juries with heavier burdens isn’t going to solve much and may create further, worse problems. The jurors are ignoring instructions because the system abuses them – sucks their time, makes them sit in uncomfortable surroundings, feeds them poorly (if at all), and then gives them a cash reward that’s less than they are required to spend on parking. Imagine what your kids would act like if you treated them that way.
Secondly, the paucity of juror compensation is in direct (and obvious) contradiction of the amount of money being bandied about by the parties and the value of the suits paraded in front of them throughout the entire trial. Why should they care that their actions aren’t fair to people who are holding them hostage, at slave rates, and then be told that they can’t handle the truth? If you expect the jurors to care about the process you need to stop giving them so many reasons to want to repay it in kind.
Third, the jurors are – albeit mistakenly – doing only what the judge told them to do: they’re seeking the truth. So at least give them a break on the intent side.
These observations (and William’s above) lead me to a couple of different conclusions than you (two) reached:
(1) Someone – the parties probably – need to be charged enough to enable the jurors to received decent compensation, good food, comfortable accommodations and getting them to buy into a system they have little or no training to understand. Jury duty also needs to be harder to get out of. These two changes will improve the quality of juries and, maybe, their willingness to abide by instructions.
(2) Stop being a modern day Luddite. The technology is there and, like newspapers and libraries of the last several centuries, jurors not sequestered will use it. How many jurors over those years drew inspiration from the Bible as a means of reaching, in their hearts and minds, the “right” conclusions? Anyway, aren’t jurors supposed to bring all their worldly experience, intuition, education and insight into the mix when assessing the witnesses in light of the Judge’s charge? What’s the difference if those things are gained before trial or during? Isn’t this just one more way technology needs to be understood and dealt with constructively by the legal profession rather than lashing out at those using it?
(3) If the technology is going to be banned, it is incumbent upon the parties and the Courts to spend the money for jammers, isolation lockers for the jurors’ devices and other isolation measures. Don’t put the burden on those already shouldering more than their fair share.
(4) Finally, rather than wring our hands over this “terrible” development, how about if we convene an ABA, Sedona, EDRM or other task force to figure out how to harness it for constructive purposes? C’mon, you mean that if a lawyer’s presentation makes no sense to a juror and he has a couple of questions that might help, that he cannot get that help, even if justice would be served? That doesn’t even sound right. We’ve recently passed the one year anniversary of Sedona’s Cooperation Proclamation, a concept and document I thought would NEVER see the light of day. (“Litigators cooperate – Never!”) Like the Berlin Wall coming down. (The Communists allow their people to exercise free speech – Never!”) Like a man on the moon. (“Man will never walk on the moon.”) Like heavier than air aviation. (“If man were meant to fly, he’d have wings!”)
Clearly we have seen, and survived, more remarkable things – things thought impossible or terrible at first that ultimately turned out to be good – than jurors using Twitter.
Let the information in – put high speed internet in the jury rooms and solve the entire problem. At least then you will know they are getting outside information. If there is information on the internet that should not be used to reach a decision, explain the reason for its lack of reliability or relevance. Counsel can challenge information a juror “secretly” obtains if he can use the internet at least as efficiently as the jurors. Use the vast resources spent on the case and figure out what is out there and how it may bear on the case. For the legal system to think it can stop the flow of information is incredibly naive. In a year or two, my smart cell phone will be a combination of an Ipod, Credit Card, car keys, ID and probably other things as well; try taking that away. The jury is going to share what they “knew” coming in during deliberations anyway – -I would say Wikipedia is at least as accurate as the average juror. Advocates will simply have to be more compelling in their presentation of evidence as truth. Why do we want the decision maker to be the one with the least information?
The problem of juror Googling is likely to grow and get even worse because now Google has made it easier for jurors to research both the facts and the LAW. See:
Never mind that it takes years of intense study to begin to truly understand the law, not to mention how to do legal research, now that jurors can get easy access to more laws, they can more easily fool themselves into thinking that they are researching the law. They can now play both amateur detective and amateur lawyer. That means they can second guess the judge’s instructions on the law. Maybe they are not sure what the instruction mean, and instead of asking the judge for clarification, they ask Google.
[…] expectation of the litigation process to be wrecked by missing documents, erroneous evidence, or googling jurors. The litigation process slowly clarifies, narrows, and refines the factual and legal issues. […]
I understand why judges want to restrict some facts. Yet I think you are missing an elephant-sized problem with US adversarial system.
You bring 12 lay people (non experts in the subject matter), ask them to listen to lawyers and experts **hired** by litigants and expect them to arrive to a reasonable understanding of the issues???? Even when trials involve complex scientific, engineering, business, etc matters???
Give me a break. An independent research on the Internet will often produce much more reliable results.
THAT’s the truth and the real reason why jurors violate judges’ order.
Interesting…I’ll be subscribing to your feed.