By Michael Hoenig - New York Law Journal -
May 21, 2012
developments prompted this writer to revisit a topic my prior
columns have addressed. In November 2011, the Federal Judicial
Center issued its report, "Jurors'
Use of Social Media During Trials and Deliberations,"1
the result of a survey questionnaire sent to all active and
senior federal district judges, 952 in all. A total of 508
judges responded with some 94 percent of them saying that they
have specifically barred jurors from case-connected use of
social media, most commonly via jury instructions and reminders
on a regular basis.
Only 30 of the
federal judges reported instances of "detected" social media use
by jurors. However, the critical reader looks at the word
"detected" and wonders whether Internet misbehavior abounds but
slips under the radar. The judges acknowledged that it is
"difficult to detect inappropriate use of social media." Six
percent, or some 30 judges, indicated they have not specifically
addressed the problem. The report details the preventive
measures judges have used.2
and despite state courts' efforts to adjust their judicial
practices as well, case decisions and news reports of rampant
juror misbehavior continue to be published, reflecting that the
problem is growing. Recently, trial judges have written articles
illustrating the types of misconduct and what practical steps
should be considered. Indeed, in a November 2011 criminal case,
U.S. District Judge Shira Scheindlin of the Southern District of
New York used the creative device of a signed "Juror Pledge" to
avoid Internet research and improper communications. More about
this later in this article. First, how serious is the problem?
In August 2003
in our article, "When Jurors Surf the Internet (and Shouldn't),"3
we reported on an already growing phenomenon of jurors or
potential jurors easily gleaning extraneous prejudicial
information from the Internet. In October 2009 we revisited the
subject observing that both the opportunity as well as juror
straying had increased.4 Thus, it was not surprising
to find abundant examples where jury forays onto the Internet
raised vexing questions of prejudicial trial proceedings,
including a products liability case,
Russo v. Takata Corp.,5
in which a defense verdict for a seat belt manufacturer was set
aside because a juror performed a Google search during a
critical stage of the deliberations.6
In April 2010,
our column, "Interviewing
Jurors After Trial,"7 examined the practical
challenges to counsel and the courts in uncovering juror
misconduct. After all, in some jurisdictions, questioning jurors
after trial is forbidden, at least without securing court
permission. And even where jurors may be interviewed, post-trial
challenges to the verdict are constrained by Federal Rule of
Evidence 606(b) and its state law counterparts. A very limited
exception allows a juror to testify regarding whether
"extraneous prejudicial information was improperly brought to
the jury's attention" or whether "an outside influence was
improperly brought to bear on any juror."
against the clock is another formidable hurdle because
challenges based on juror prejudice become less attractive to
judges after the jury has been discharged. Obtaining meaningful
interviews and affidavits often takes time. But this reality
clashes with a natural reluctance by judges to call back jurors
for inquiries into proceedings that quickly become stale.8
Juror strayings onto the Internet may amount to "extraneous
prejudicial information" so lawyers ought to be exploring that
phenomenon rather aggressively.
developments confirm prior trends toward increasing misconduct.
On April 20, the U.S. Court of Appeals for the Fourth Circuit in
United States v. Lawson,9 overturned a
federal criminal conviction because a juror performed
unauthorized research of the definition of one element of the
offense on Wikipedia, an "open access" Internet encyclopedia. In
addition to the problem of an "extraneous influence," the court
expressed concern about the reliability of Wikipedia entries,
where largely anonymous Internet volunteers can write and make
changes to Wikipedia articles (except where editing is
restricted to prevent disruption or vandalism). About 91,000
editors—from expert scholars to casual readers—regularly edit
Wikipedia. Ironically, in a footnote the appellate court
admitted that it had itself cited Wikipedia as a resource in
Associated Press posting on April 21, citing the Fresno Bee,
a Fresno, Calif., judge reportedly ordered a new trial for a
convicted killer after learning that the jury foreman brought
legal documents into the deliberations room. He obtained them
online from Nolo.com and Wikipedia and passed them out to fellow
jurors. The Superior Court judge agreed that the documents
served as a "quasi 13th juror."
In April, in
Pennington v. Bickell,10 a federal district
judge in Pennsylvania adopted a U.S. magistrate judge's decision
denying a petition for writ of habeas corpus from a state court
conviction for murder. The petitioner argued that a state juror
did Internet research on the definitions of different degrees of
homicide. In an evidentiary hearing, the juror testified that
she accessed the Internet at her home during a recess in
deliberations and found that the definitions were the same as
those given by the trial judge during final instructions. She
did not print out the definitions from the Internet site or
share the information with other jurors. The trial court found
that the defendant failed to establish prejudice from the
In January, in
State of Vermont v. Abdi,11 the Vermont
Supreme Court reversed a conviction for sexual assault on a
child. The defendant was a Somali Bantu immigrant and most of
the witnesses were Somali Bantu. One of the jurors, while at
home, researched about the Somali culture and religion and
shared that information with other jurors. Because the Somali
Bantu religion and culture "lay at the heart of this case," the
court could not conclude that the outside information had no
impact on the verdict. The court noted "the increasing problem
of jurors consulting the Internet for outside information,"
citing an A.L.R. 6th Annotation, "Prejudicial Effect of Juror
Misconduct Arising From Internet Usage."12 Although
Vermont trial courts routinely admonish jurors not to consult
outside sources, the court suggested it was time to consider "a
stronger and more technology-specific admonition similar to the
standard instruction employed, for example, in Colorado."13
In England, a
university lecturer named Theodora Dallas reportedly caused an
assault trial to stop because, while serving as a juror, she
researched a defendant's past on the Internet and discovered
that he had previously been acquitted of rape—information not
admitted in the assault proceedings. She shared her findings
with fellow jurors who informed the judge. Dallas was charged
with contempt of court after the case was referred to the
attorney general in order to set an example. Her excuse—she
claimed she had not understood Internet searches were banned
since "sometimes my grasp of English is not that good"—was
rejected by three senior judges who held that her actions
undermined the jury trial system. Saying that Dallas
"deliberately disobeyed" the trial judge's instructions not to
search the Internet, the court sentenced her to six months jail
time, with three of those months to be served and "on license"
for the remainder of the term.14
retired judges have offered observations about the growing
problem of juror strayings onto the Internet and social media
with various suggestions about what might be done. Maryland
Judge Dennis Sweeney, in his December 2010 article, "Social
Media and Jurors,"15 reports that courts are seeing
more of what he calls "wired" and "connected" jurors. He says
that, in a political corruption trial he presided over, the
conviction of Baltimore's mayor was challenged when it was
learned that during trial and deliberations five of the jurors
had "friended" each other on Facebook and engaged in discussions
posted on their pages in violation of the court's explicit
instructions not to engage in discussions about the case on
social media sites.
other examples and suggests: (1) better education of prospective
jurors; (2) orientation with written and oral instructions on
the first day of jury service about not doing Internet research
or discussions with others; (3) the judge should inquire during
jury selection whether prospective jurors use the Internet or
social media sites (in detail and particularity in lengthy or
high-profile cases); (4) a strong introductory instruction be
given (and sets forth the text of one he drafted); (5) judges
and lawyers should become more aware that when they place
information before jurors in haphazard or incomplete fashion,
jurors will be tempted to seek outside information to complete
the picture. Thus, counsel should be prompted by judges to
answer obvious questions instead of leaving them open; (6)
during trial there should be some opportunity for jurors to
bring any question or issue that is of major concern to them to
the attention of counsel and the court; (7) prior to
deliberations, final instructions should again emphasize the
need not to communicate with others or seek information from
outside sources (and sets forth the text of such an
instruction); (8) during deliberations all electronic devices
should be removed from juror possession and held by court staff,
along with forceful reminders of the directives when jurors
separate overnight; (9) juror sanctions in egregious cases may
be necessary to set an example, particularly when the misconduct
resulted in a mistrial or grant of a new trial; and (10) using
"anonymous" juries in high-profile cases of intense public
California Judge Jacqueline Connor, in her September 2011
article, "Jurors and the Internet: Jury Trials and Millenials,"16
says that "Millenials" (born between 1980 and 1998) actually
prefer technological communication to face-to-face and "live and
breathe information access." This directly affects their sense
of the world and their sources of information about their world.
In the context of jury trials, this "is a huge problem."
In one short
month recently, in Los Angeles Superior Court, one juror was
caught tweeting about the trial and had even posted strictly
forbidden photos of jurors in the court hallway; a journalist
researching jurors' use of the Internet stumbled on a juror
posting while sitting as a juror; an excused juror nevertheless
continued his postings with fictitious details about jury
deliberations; in a high-profile case, several jurors were
caught texting about the case during voir dire despite multiple
strict admonitions (they were escorted out, confronted, only to
return to the assembly room and continue the surreptitious
texting); a judge thought to Google a defendant ready to begin a
complex criminal trial, finding that the second Google entry on
the first page was the defendant's prior record and the third
entry was his registration as a sex offender; and, in a civil
case of elder abuse, it came to the judge's attention as jurors
were being selected, that the plaintiff had posted several
videos and entries on YouTube dramatizing the alleged abuses by
the defendant convalescent home.
that the "underlying dynamic" that leads jurors to explore the
Internet despite explicit admonitions, threats and explanations
seems to consist of "a general distrust of authority, the
increasing ease of focused research available, the accessibility
of different forms of technology (expanding by the minute) and
growing psychological expectation of immediate answers."
impacts the operations of a trial in four significant ways and
includes not only direct actions by jurors themselves but also
actions designed to influence jurors: (1) problems of
communication and expressions by jurors themselves (tweeting,
texting, posting, blogging comments or observations about their
jury experiences or the trial); (2) the problem of jurors
actively researching their case (looking up words, researching
issues, Googling the parties, the judge, the witnesses or the
lawyers); (3) inevitable problems with jurors sensitive to media
attention from high-profile cases (generating a stake in the
outcome); and (4) examples of manipulations of the Internet to
potentially influence jurors (posting alleged confessions of a
party while the party is on trial; posting inflammatory videos
numerous examples calling such "transgressions in the face of
admonitions ubiquitous." Why is this happening? Some jurors say
they were told not to blog but the judge did not say they could
not twitter. Some claim they are curious and determined to be
the best juror possible. One blogged that "any responsible and
rational juror would seek additional information on their own…
the object of any court proceeding is to use all facts
obtainable by any means…if I ever sit on a jury, you better
believe I will do whatever research is required to unravel the
case using due diligence…."
facts are suppressed to exclude evidence "inconvenient" to the
judge and lawyers. Some feel they know they are being Googled
"so of course they can google as well." Others don't see going
online as doing "research" and don't view such efforts as
"discussing" the case. Meanwhile, the power of the Internet in
"exposing the truth" is obvious to jurors. They can view crime
and accident scenes; check travel times and alibis; consult
Wikipedia regarding technology; compare witness backgrounds and
CVs; plumb expert qualifications in more depth; view a
defendant's prior record; check out court filings and motions
regarding evidentiary items; and a host of other independent
What can be
done? Connor mentions steps such as (1) Google yourself, your
witnesses, your clients, and issues in the case to be alert to
potential danger; (2) Courts can consider giving better and more
frequent admonitions; (3) Cell phones can be confiscated during
sessions; (4) One attorney had jurors sign a statement under
penalty of perjury before and after a trial that there was no
Internet use connected with the trial; (4) Jurors could be given
a "snitch" instruction to advise the court if another juror
violates the rules; (5) Online IDs or passwords of jurors could
be collected during the trial; (6) Jurors can be sequestered.
But "none of these solutions is particularly foolproof and some
are simply not palatable."
better questions during voir dire can be designed to ferret out
those who simply cannot forgo constant connection with the
Internet. In their first appearance at court, jurors should be
asked how many have already posted, texted, tweeted or blogged
about their jury duty. Other detailed questions about texts and
posts may disclose those who may be the most likely offenders. A
review of a party litigant's entire trial strategy is "highly
recommended." Allowing jurors to ask questions "should be
absolutely mandatory." Giving them a glossary of terms used in
the trial is very helpful. Paring the trial to avoid repetition
and avoid consuming time with undisputed matters and keeping the
trial as short as possible will keep jurors engaged. Letting
jurors know they can be tracked is something to consider
(although the court can't track jurors, they have been "outed"
by journalists and public readers of the postings).
effective technique," however, appears to be "explaining the
costs and reasons why Internet access relating to a trial is
prohibited." Convincing jurors why this is important is more
effective than empty threats. Connor then provides the text of
her proposed, detailed judicial instruction.
2011, Scheindlin used an interesting and creative approach in a
criminal case called United States v. Bout. During voir
dire jurors were told that, if selected, they will be asked to
sign a pledge that they will not use the Internet or any social
media to discuss the case with anyone or to do any research
during the trial or deliberations. Prospective jurors were
asked, "is there anyone who will not sign such a pledge?" The
following is the text of the juror pledge crafted by Scheindlin:
I agree to
follow all of the Court's preliminary instructions, including
the Court's specific instructions relating to Internet use and
communications with others about the case. I agree that during
the duration of this trial, I will not conduct any research into
any of the issues or parties involved in this trial.
Specifically, I will not use the Internet to conduct any
research into any of the issues or parties involved in this
trial. I will not communicate with anyone about the issues or
parties in this trial, and I will not permit anyone to
communicate with me. I further agree that I will report any
violations of the Court's instructions immediately.
intentions by the judiciary and some increased admonitory jury
instructions, the dazzling blitz of accessible electronic
information is a near-irresistible magnet for juror curiosity or
misbehavior. The pool of available information beckons "wired"
or "connected" jurors like a flame to moths. This conflicts with
our objective that the courtroom trial be a protective cocoon
where jurors calmly and dispassionately receive only relevant
and reliable information based on evidentiary rules that balance
the pertinent and admissible against the prejudicial.
for juror misbehavior calls for alertness and vigilance by
counsel. Lawyers need to request that courts act vigorously and
aggressively in preventing, curing and remediating misconduct.
And counsel needs to have some action plan on what to do in case
jurors become tainted by extraneous information. In this and
prior columns we have elaborated some of the steps counsel and
courts can consider to meet the mounting challenge.
Hoenig is a member of
Herzfeld & Rubin.
1. By Meghan
Dunn (Nov. 22, 2011), available at
2. Id., Table
3. New York
Law Journal, Aug. 11, 2003, p. 3.
"Juror Misconduct on the Internet," NYLJ, Oct. 8, 2009,
5. 2009 S.D.
LEXIS 155 (S.D. Sup. Ct. Sept. 16, 2009).
6. The South
Dakota Supreme Court decision in Russo was discussed in
our October 2009 article. See J.A. Edwards, "Jurors Who Tweet,
Blog and Surf—Deciding and Discussing Your Case," (Florida)
Orange County Bar Briefs (October and November 2009), for
further discussion of examples cited in our October 2009 column.
April 12, 2010, p. 3.
generally, D.R. Agathe, "Propriety of Attorney's Communications
With Jurors After Trial," 19 A.L.R. 4th 1209 (originally
published in 1983 and Cum. Supps.).
9. 2012 U.S.
App. LEXIS 8021 (4th Cir. April 20, 2012).
10. 2012 U.S.
Dist. LEXIS 57072 (W.D. Pa. April 24, 2012), adopting U.S.
Magistrate Judge's Report and Recommendation denying Writ of
Habeas Corpus, 2012 U.S. Dist. LEXIS 57074 (April 5, 2012).
11. 2012 VT 4
(Jan. 26, 2012).
12. G. Blum, 48
A.L.R. 6th 135 (2009) (collecting cases). For further instances
of juror Internet use, see Sidoti, Zazzali-Hogan & Saso, "Choose
Your 'Friends' Wisely," NYLJ Special Section,
E-Discovery, S8—S9 (Oct. 3, 2011).
13. State v.
Abdi, citing and quoting in its footnote 3 the Colorado
Civil Jury Instruction 1:5 in its entirety. The court also cited
a law review article, L. Lee,
Comment, Silencing the "Twittering Juror": The Need to Modernize
Pattern Cautionary Jury Instructions to Reflect the Realities of
the Electronic Age, 60 DePaul L. Rev. 181, 197, 202 (2010)
(observing that the Internet has been "wreaking havoc in the
courtrooms" and suggesting a need for new "technology-inclusive"
14. "Prison for
Juror Who Researched GBH Trial Defendant on the Internet," Daily
Mail article by Colin Fernandez, updated Jan. 24, 2012;
The article reported on a prior conviction in June 2011 in which
a woman, Joanne Fraill, was given an eight-month jail term after
becoming the first juror to be prosecuted for contempt of court
for using the Internet. Fraill admitted to using Facebook to
exchange messages with a defendant named Sewart who had already
been acquitted in a prior drug trial. She also admitted
conducting an Internet search into Sewart's boyfriend, a
co-defendant, while the jury was deliberating.
15. 43 Md. Bar
J., No. 6, pp. 44-49 (Nov./Dec. 2010).
16. CAALA Advocate Magazine (Sept. 2011)
http://www.adrservices.org/pdf/Jurors and the Internet.pdf.
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