Jurors on the Internet: a dilemma for courts

Paula Hannaford-Agor, director of NCSC’s Center for Jury Studies, says her research findings reflect how closely connected the Internet is with ordinary citizens’ daily lives. “People don’t intuitively understand why they shouldn’t do research on a case,” Hannaford-Agor says, “and why, if this is how they navigate throughout life, (the Internet) should be off limits.”

Some states have yet to instruct jurors about Internet research and communication. Some 20 states make no mention of the Internet as something to avoid while serving as a juror in a civil trial. At least 12 states do not mention the Internet or social media in their instructions for juries serving on criminal trials.

Juror supremacy

Internet research and communication in many cases is not malicious: Jurors may be driven by the desire to make sure they understand all the facts and definitions of complex legal terms. “Jurors are instructed in a number of ways as to their supremacy in judging the facts,” said Michael Hoenig, a products liability lawyer and author of several law journal articles on jurors and Internet use, in an email to Stateline. “Such instructions may, despite admonitions against Internet forays, act to ‘empower’ and embolden jurors into ‘searching for the truth’ even outside the courtroom.”

To curtail the problem, researchers recommend that judges not only tell jurors what they cannot do but explain why they cannot do it. Judge Herbert Wright, in Little Rock, Arkansas, tells his jurors that if they use social media or do Internet research during courtroom proceedings, they can cause an expensive mistrial and waste their own time and taxpayers’ money. Wright was made especially sensitive to the problem this year: In July, after one of his trials had ended, he found out that a juror had done Internet research on the defendant’s criminal record during a recess.

Explaining the rationale behind the restrictions, says Eric Robinson, of the Donald W. Reynolds National Center for Courts and Media, is the most effective way to reduce juror misconduct on the Internet. “Courts must appeal to jurors’ sense of duty, and explain the reasoning behind the restrictions, as well as the consequences for violating them,” says Robinson. Currently, only seven states include any rationale for prohibiting Internet research and communication in their civil jury instructions, and only 10 states include a rationale in their criminal jury instructions.

Courts could solve much of the problem by banning all juror cell phones from the courtroom, but they have been reluctant to do that, partly out of concern that more citizens would avoid jury duty if they felt they were losing communication with the outside world. Arguments have been made that public safety would be endangered if jurors couldn’t use their cell phones to get in touch with family members in the event of an emergency.

Whether or not these are valid concerns, they are likely to come up increasingly often as more people accustomed to online research and communication enter the jury pool. Hannaford-Agor, of the National Center for State Courts, says judges will have to decide whether they should simply overturn any case in which a single juror uses social media or does research despite court instructions, or whether they should be willing to accept some social media engagement during a case if the content doesn’t show bias.

“If everyone acts like the Arkansas Supreme Court,” Hannaford-Agor says, “we’re going to be turning over a lot of verdicts.”

— Contact Maggie Clark at maclark@pewtrusts.org

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Jurors on the Internet: a dilemma for courts

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