By Dr. Ken Broda-Bahm:
You know it is possible. As those jurors leave the courtroom with their mobile phones on a break or at the end of the day: They could be off on their own evidence-gathering foray, looking up the parties, the lawyers, the witnesses, or the law. But, they've been given strong instructions in a very formal courtroom, and the judge has told them not only that is it strictly forbidden, but that it could also cause a mistrial leading to additional wasted time and money for the parties and for the public. With all of that, you might think that the act of a juror violating their instructions in order to willfully pursue their own investigation online would be the relatively rare act of an uninformed or reckless juror. If you thought that, you would be wrong. Based on a new survey, jurors committing online misconduct would seem to be the norm and not the exception.
In a blog article published earlier this month, "Juror Misconduct: More Prevalent Than We Think," Dr. Marlee Kind Dillon, a consultant for the Long Island based Jury Consulting group DOAR, reports on the company's own investigation of the likelihood of various forms of unauthorized communication. Not trusting some of the previous surveys administered in court and showing a relatively light incidence of such misconduct, the DOAR team conducted their own anonymous online survey focusing on whether jurors engage in online research, post about a case, discuss it with family or friends during trial, or with other jurors before deliberations. They found that online research outstrips the other forms of misconduct to the point that it actually reaches a majority: 56 percent indicated that, yes, they had conducted online research on issues relating to their trial while serving as a juror. This online misconduct exceeds the more conventional methods, but discussing with family and friends is still very substantial, with 42 percent admitting that they did it. Dr. Dillon's article includes a lot of interesting detail regarding who searches about what and why. It's a detailed and smartly illustrated article, and I'd encourage you to read the original. But in this post, I am going to bullet out what I see as the three main implications.
1. Expect Them to Look
Googling about the case is not the rare act of a rule-breaker, it is the common act of an ordinary citizen. "Even when they are instructed not to," Dr. Dillon notes, "jurors are still engaging in misconduct during trial." And I need to admit that the fact that it is a majority admitting to the online research is something that I find surprising. I believe that jurors generally do at least try to follow the instructions when they understand them. At the same time, it may be that the use of online research is so ingrained in modern life that, for most people, it is just too difficult to resist. For that reason, it is time for litigators to start to assume that at least some on your jury, possibly most, won't be content to just evaluate what they're given in court. They are going to look for more.
2. Know What They're Going to Find
And if they are going to look, then prepared trial lawyers need to know what those Googling jurors are going to find. Conduct your own social media analysis, or hire someone to do it. Take a few passes, looking at party names, witness names, lawyers' names, and the legal terms that jurors are likely to hear. This allows you to know in advance and to address it. Your ways of addressing it probably won't be explicit, and cannot directly address the information (that isn't coming in for a reason, after all). But, implicitly, you can still try to design your themes and messages in ways that speak to what they are likely to know, and not just what they'll learn from official channels.
3. And Think About Why
Even if we cannot fully prevent jurors from searching online - and if a majority are doing it, it is unlikely that we can -- it is still helpful to think about what drives them to do it. It may be just curiosity or force of habit in a connected age. But Dr. Dillon makes the good point that, at least in part, jurors' online research seems to be driven by a thirst for more information. When asked why they look online, most (57 percent) mention simple curiosity, but a better understanding of the law is close behind, at 49 percent. So, to a substantial extent, jurors' perceived need to look beyond what they are hearing in court just underscores the need for more complete, concrete, useful, and plain-English instructions. It should also help, when telling jurors not to research online or to discuss with friends and family, to also tell them why. By focusing on the reasons, the court can make it more a matter of relevance, and not just an arbitrary restriction.
Other Posts on Juror Conduct:
- Treat Fact Finders as Information Wolves, Not Information Sheep
- Treat Nullification as a Known Option
- See the Process and Not Just the Product in Deliberation
Image credit: 123rf.com, used under license, edited.