April 24, 2014

Has the social media replaced the jury?

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Image by The Daring Librarian via Flickr

Has the jury system become a relic of pre-modern courts? Or has social media (Twitter, Facebook, Google+) replaced the jury system as a community of informed individuals weighing the scales of social justice and rendering important (though non-binding) “verdicts”?

In many regards, the modern “social media jury” is a lot more like the jury of 1400 AD  than our modern jury.  The jury of 1400 was a jury of the “viciniage,” or vicinity, meaning it was comprised of members of the community most closely associated with the matter in dispute and the parties involved in the case.

The jury of 1400 was not a passive recipient of carefully orchestrated and considered evidence presented through an excruciating adversarial process presided over by an impartial court.  Rather, the juries of the viciniage were expected to bring their own knowledge of the incident to the court, share it, and then reach their conclusions after the litigants’ presentations in tandem with the jurors’ inherent knowledge.  They were in essence both decision makers and private investigators.  In this sense, the jury system was more a process of aggregating diffused knowledge for the purpose of reaching an informed decision.  And that’s not unlike modern social media.

The downside, however, is that the old jury systems greatly limited the freedom of the litigants to argue their own case and introduced variables into adjudication that most would now consider intolerable, such as personal prejudice and hostility.  Let’s say I was accused of a crime, under the old jury system all of my neighbors got to come forward and decide my fate.  Some would be fair, but others may use the opportunity to “score settle” against me for something not at all related to the trial at hand.  In this sense, the old jury, and the modern “social media jury” could only serve to amplify existing prejudices rather than make rational decisions.
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Ben L. is a guest writer on Publius Online. He is an attorney in private practice, an Anglophile, and a resident of Davis County. You can follow him on Twitter at @benlusty.

User feedback: have you ever seen the experience of a social media “jury?” What was your experience?

When Jury met Google…

Image representing Google as depicted in Crunc...
Image via CrunchBase

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, eHarmony, 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”?
RECOMMENDATIONS
There are several suggestions that Morrison presents to these problems, though she states that their efficacy is still open:
  1. 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.
  2. Explain why. If jurors understand, they are more likely to listen and heed the instructions.
  3. 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.
  4. 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.
  5. 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.

Social media technology meets jury duty

In a high-profile criminal case in Maryland, lawyers for Baltimore Mayor Sheila Dixon are appealing the conviction of their client because almost half the jurors, in contravention of the judges orders not to communicate during the trial, “friended” each other on Facebook.  In another criminal case, the Maryland court of appeals overturned a first degree murder conviction because a juror consulted Wikipedia, the online site that touts itself as “the free encyclopedia that anyone can edit.”

In another case this year, a $12.6 million award is up in the air because a juror was twittering before, during and after the trial.  In the brave new world of Twitter, every man is a poet for 140 characters; via the mini-blog Twitter, this particular juror compared himself Sidney Lumet’s 1957 film “12 Angry Men,” flaunted his desire not to avoid jury duty, instead looking forward to “rocking it,” and after, or during–which is up for dispute in the appeal–bragged that he had just awarded the $12.6 million of someone else’s money. Needless to say, the defendant was not impressed and appealed. 

I guess I took it for granted that jurors can’t take their cell phones into jury duty with them.  Jury instructions usually limit jurors to just the facts presented to them in the court room.  Jurors are not supposed to watch media coverage of the case, do their own research on the internet, or seek the opinions of friends or even each other during the time they are in trial.  And the reasoning? According to www.groklaw.net, while discussing why judges can read what they want, but that jurors cannot:

A number of things in the US court system are there because we have a layman jury system, and certain steps are taken to protect them from materials that might confuse a person who isn’t legally trained. You’ll see that a lot when we get to the trial, with respect to what evidence a jury can and can’t have presented to it. It’s very complex. Judges on the other hand can be exposed to an article and he or she will just say, “That’s hearsay. I’ll disregard that,” as appropriate, or whatever, whereas a jury won’t even know what hearsay is most of the time. Heaven only knows, the exceptions to the hearsay rule can seem counterintuitive sometimes.

So it’s the lack of legal training that we are compensating for when we try to limit jurors to basing their decisions solely on in-court information.  But couldn’t a juror share what they are learning?  What’s wrong with Facebook updates? Twitters? Blogging?  As long as a juror does not receive knowledge, what’s wrong with the juror blogging the experience for others?  Lawyers polled by Law.com in 2005 said that it’s ok to blog the experience, but not until after the trial:

Lauren Gelman, associate director for Stanford Law School’s Center for Internet and Society:

“I don’t think bloggers should blog jury duty until after their service has concluded. A long history of thinking about the role of juries has led to the rules we have — deliberate only amongst the jury with information selected by the advocates and vetted by the judge. This is a completely different model than the deliberation that occurs in the blogosphere. Interestingly, the press comparison in this case does not work, because the press has greater access to information about the trial than jurors do. Access to information by jurors is purposely limited.

“So I’d be happy to endorse bloggers playing the same role that journalists do in court proceedings (access and timely reporting), but I don’t think the rules that apply to jurors should change if one happens to be a blogger or journalist.”

Wendy Seltzer, visiting assistant professor at Brooklyn Law School and blogger of Wendy’s Blog: Legal Tags:

“I agree with Lauren here. Bloggers are free to report on other trials, in which they’re not jurors, but they shouldn’t attempt to be both judge and witness when called for jury duty.

“Real-time reporting from within the jury box could hurt the dynamic of the jury, where jurors are supposed to decide facts based on evidence presented to them, in deliberations with their fellow jurors. For example, someone who had publicly blogged a position based on opening statements might be more reluctant to shift his or her opinion to take later evidence into account.

“Trackbacks, or comments, on a blog could be even greater concern: We deliberately shield jurors from some facts, such as evidence gathered in violation of Fourth Amendment protections, and ask them not to discuss pending cases with the outside public.

“After the trial concludes, I think it can be blogged — respectful of other jurors’ privacy and any limits set by the judge.”

With these rationales for the jury system, I decided to check the local jurisdictions to see what restraints are formally in place. Utah follows the Model Utah Jury Instructions published by Lexis Law Publishing.  Here’s what the Utah state court’s website states about communications during jury duty:

It is important that you not discuss the trial with anyone (even fellow jurors) until the jury retires to deliberate. In a multi-day trial, you must not discuss the case with family, friends, or anyone else. If someone approaches you in the courthouse or elsewhere and tries to discuss the trial with you, leave immediately and report the incident to the judge. The bailiff can deliver any written messages you wish to convey to the judge.

Jurors must make their decision on the basis of the evidence presented at the trial, and not on the basis of any outside information about the case. For this reason, jurors are prohibited from reading, watching, or listening to any media accounts of the trial, from visiting the scene of the events, and from trying to discover any information about the case on their own.

The District Court of Utah, the federal bench, goes one step further and prohibits phones in the court room.  From the jury duty pamphlet on their site:

**PURSUANT TO AN ORDER OF THE COURT, CELLULAR PHONES ARE NOT PERMITTED IN THE U.S. COURTHOUSE. PLEASE LEAVE YOUR CELL PHONE IN YOUR CAR OR AT HOME.

And that’s exactly how it appears in the pamphlet–bold, red, and underlined.  If nothing else, it conveys the seriousness with which the courts view the potential for abuse of the jury system in cell phones, especially as they become increasingly able to access a wealth of information and resources.  As DLA Piper Partner Jeffrey Rosenfeld opines at Insidecounsel.com, “You’ve got jurors who could literally be sitting in the box running an Internet search while testimony is going on.”

Perhaps worse than just seeking information unvetted by the restraints and guidance of attorneys and judges in court, there is the pure distraction factor of having cell phones, when they are permitted, in the jury box.”The last thing you need in a lawsuit is three jurors instant messaging their best friends, telling them what’s happening on the stand because the guy’s hair is sticking up,” says Buchalter Nemer Shareholder Richard Ormond to insidecounsel.com.

Courts have issued orders against bringing any type of cell phone into the court room, but there is nothing to prevent a juror from logging on to the internet at home.  At least not yet.  I don’t think that it would be a far cry for courts to require jurors to register all of their social media accounts with the court for the duration of their jury duty. (I can hear the privacy lobby screaming already….)

At what point can I discuss the trial with others?
It is important that you not discuss the trial with anyone (even fellow jurors) until the jury retires to deliberate. In a multi-day trial, you must not discuss the case with family, friends, or anyone else. If someone approaches you in the courthouse or elsewhere and tries to discuss the trial with you, leave immediately and report the incident to the judge. The bailiff can deliver any written messages you wish to convey to the judge.Jurors must make their decision on the basis of the evidence presented at the trial, and not on the basis of any outside information about the case. For this reason, jurors are prohibited from reading, watching, or listening to any media accounts of the trial, from visiting the scene of the events, and from trying to discover any information about the case on their own.