Thursday, March 19, 2009

Jurors and Electronic Media

During my morning commute yesterday, Michael Smerconish brought to my attention an apparently growing problem: jurors' use of Blackberries and other electronic devices to do research on the case they're hearing or to communicate about it. For example, according to an AP story:

"Dozens of people a day are sending tweets or Facebook updates from courthouses all over America," said Anne W. Reed, a Milwaukee trial lawyer and jury consultant who writes a blog that follows juries and social networking sites.

While most posts are innocuous, Reed said, a few cases have raised eyebrows — and questions about whether judges need to clarify jury instructions about online communications.

In Arkansas last week, a building materials company and its owner appealed a $12.6 million verdict against them, alleging that during the trial a juror posted Twitter messages that showed bias. Juror Johnathan Powell, of Fayetteville, told The Associated Press that the complainants were "grasping at straws" to try to undo the award.

A federal judge in Florida last week had to declare a mistrial after an eight-week drug trial after learning that no fewer than nine jurors had done online research about the case, according to the New York Times.

It may seem counterintuitive that jurors are not supposed to do independent research when they are hearing a case. Don't we want jurors to be well informed? If, for example, a juror hears a term he doesn't understand, why shouldn't he look it up on the Internet during a break?

The purpose of the rule against independent research is to help ensure that jurors base their verdict only on the evidence that is provided to them, in the courtroom, by each side. Consider a doctor who is defending himself against a malpractice claim. His lawyer, the other side's lawyer, and the judge will work together before the trial to determine whether, for example, the witness the doctor wants to testify about the appropriate standard of care meets the legal criteria for being presented to the jury as an expert.

If jurors then go on-line to supplement what the witness says, they're taking into account "testimony" that has not been vetted by the parties and the judge. It's almost as bad as when a juror has independent knowledge of one of the parties, or a prejudice against one of the parties, but never tells the judge. The verdict is then based, at least in part, on evidence that was unknown to the parties and the judge, was completely outside their control, and cannot be questioned on appeal. It makes the trial that much more unpredictable, that much more a matter of chance -- something the Anglo-American legal systems have been trying to get away from for centuries.

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