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.