Use of Internet Technology by Jurors and Others During a Trial

David Badertscher*

Some jurors have always had an urge to visit a crime scene or research a case they’re considering while on jury duty, but now the Internet is making it much easier to play detective.

“As simple as it might have been to research facts on their own in the past, now jurors don’t have to have a brother-in-law who’s a doctor or a next-door neighbor who’s a dentist. Everyone has access to the world of doctors and dentists,” says Laura A. Miller, the chair of the criminal litigation section of the American Bar Association and a partner at Nixon Peabody.

Courts across the country are wrestling with the problem.

According to an article by Douglas L. Keene and Rita R Handrich in the November 2009 issue of The Jury Expert: The Art of Science and Litigation Advocacy, trials have been disrupted due to the internet from as far back as 2001. The sense of “feeling connected” through the internet has lead to various issues relating to legal issues, including using social media during trials.

The internet and social media has affected trials. Jurors use the internet and social media as research tools, even during jury duty. Jurors also communicate about cases online. Some say the reason for this type of behavior is because people are more self‐centered and do not consider the impact of their behavior on others. However, the real issues involve juror curiosity and naivete about their behavior.

In order to resolve these issues, the focus of the legal system has been to revise jury instructions so that jurors are explicitly told to not do internet research. According to data gathered in response to a New York Times article, the public sentiment falls into three categories. The first group says, “take away their phones,” the second says, that the legal system should figure out a way to how to deal with this new issue (taking away juror cell phones would be ineffective), and the third (smallest) group says that jurors should use these tools as a method to dig deeper into courtroom issues.

The Jury Expert article referenced above, Online and Wired for Justice: Why Jurors Turn to the Internet, also includes several recommendations and strategies for addressing the issues of jurors and internet. As the article points out, “…It isn’t just jurors!” The disruptive internet-related activities of judges, attorneys, witnesses, parties and jurors must also be concerned as part of the overall problem. This and many other articles on the topic agree that increasing use of internet based technology by jurors and others in a court setting can be a broad based problem and that all concerned, especially jurors, need to be educated on the importance of not engaging in “Google mistrials”.
_______________________ * I am grateful to Michael Chernicoff for his assistance in preparing this article.