Ooops, They Did it Again — Jurors Continue to Improperly Use the Internet, and Courts Struggle with Solutions

All over the country, courts are struggling with how best to prevent juror communications and/or research on the Internet, including on social media such as Facebook. What’s the solution? Thus far, there is no clear answer, as evidenced by a recent New Jersey case in which a juror dodged sanctions for contempt after researching a child sex-crime case involving a former pastor on the Internet — even after being instructed to refrain from such Internet research.

In the New Jersey case, not only did the juror research certain legal terms on Wikipedia, but he also distributed handouts to his fellow jurors several days into the deliberations — despite several precautions in place. For example, during voir dire, the court advised that the jurors should not consider facts outside of trial testimony and exhibits and similarly should not read about the case in the media. The judge also read the model jury charge each day of the trial. It reiterated that deliberations could only be based on what was presented during trial and cautioned jurors not to read about or research the case "in print, on the Internet or on any blog."

After the trial judge declared a mistrial, Bergen County Assignment Judge Peter Doyne issued an order to show cause why the juror should not be held in contempt. Judge Doyne ultimately found that a contempt sanction was not warranted because the error appeared to be a "genuine, though perhaps reckless, mistake," adding that while the conduct was contemptuous, it was not willful beyond a reasonable doubt. Judge Doyne suggested, however, that NJ’s Model Jury Charges be amended "to make unquestionably clear that the prohibition on juror research and outside materials is absolute."

These steps may be necessary, as this is not the first time that jurors have engaged in improper electronic communications or research in New Jersey. In previous matters, a juror was dismissed after attempting to “friend” a defendant on Facebook and a court reversed manslaughter convictions after a juror conducted Internet research.

Recently, in addition to proposing revisions to jury instructions, other jurisdictions have attempted to employ creative means of preventing jurors from outside communications or research and/or punishing them if they disobey. For example:

• In the Southern District of New York, Shira Scheindlin, U.S.D.J., contemplated requiring jurors to sign a pledge, promising that they would not use the Internet to research the case or be subject to perjury;
• In California, jurors could now be exposed to civil penalties and/or jail time if they willfully disobey jury instructions prohibiting them from engaging in electronic or wireless communications or conducting Internet research about the trial pursuant to Assembly Bill No. 141, which amends the Code of Civil Procedure and Penal Code;
• In Michigan, a juror was removed from a jury, fined $ 250 and ordered to write an essay on the Sixth Amendment for posting a comment about the case on Facebook that she was “actually excited for jury duty tomorrow. It’s gonna be fun to tell the defendant they’re GUILTY. . . .”;
• In England, a juror was sentenced to eight months in jail after friending a defendant in a drug trial;  
• In New Jersey, the Supreme Court recently proposed guidelines to limit the use of electronic devices in the courtroom, which do not directly address juror misconduct on the Internet, but might stem the tide of such misconduct.

Unfortunately, there is probably no cure-all solution to stop this growing problem. A recent report issued by the Federal Judicial Center last month, reinforces that challenge. At the end of the day, it is incumbent upon judges and attorneys to remain vigilant in educating jurors on what constitutes prohibited research and communications (in the traditional and cyberspace forms). Jurors should also be advised of the consequences of violating such directives.

Mara E. Zazzali-Hogan is a Director on the Gibbons E-Discovery Task Force.

Background:

Ooops, They Did it Again — Jurors Continue to Improperly Use the Internet, and Courts Struggle with Solutions
Source: original article
Author: Mara E. Zazzali-Hogan
Categories: Electronic discovery, e-discovery, ediscovery

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