Surrendering Your Smartphone at the Courthouse Door: Addressing the Rise of Technology-Related Juror Misconduct
By Rebecca Myhr Szajna*
“[S]o Johnathan, what did you do today? Oh nothing really, I just gave away TWELVE MILLION DOLLARS of somebody else’s money.”
-Tweet sent by an Arkansas juror regarding his jury’s verdict in a 2009 civil lawsuit.
Technology and juries just do not mix. At least in the way that the current American legal system is structured. The advent of new technologies that have created instant access to information and communication pose a serious threat to the current jury system. One of the foundations of the American legal system is the right to a jury trial: “a jury composed of competent, fair, and impartial individuals, unbiased and free from outside influence.”
A fundamental tenet of this system is that the evidence presented by the parties at trial is the only evidence allowed to be considered by the jury. As Justice Oliver Wendell Holmes stated at the turn of the last century: “The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.” Before modern technologies, this rule was relatively easy to follow; however, with the invention of smartphones, iPads, and Facebook, this rule is facing serious challenges from today’s jurors. Jurors can now access information about litigants, case facts, legal terms, and solicit feedback from “friends” with the touch of a button.
II. HOW NEW TECHNOLOGIES THREATEN JUROR IMPARTIALITY
Over half of all Americans own a smartphone. As of 2010, seventy-four percent of American adults used the Internet. The number of Facebook users is over 1.1 billion per month. Apple sold three million iPads in the first eighty days of release, the fastest-selling electronic in history. Cities across the country provide free wireless Internet access to their communities. Everywhere we turn, people are talking, texting, or reading from a smartphone or tablet. This proliferation of new technology has changed the fundamental ways by which we communicate and access information.
Our current adversary system is structured to provide two opposing sides the opportunity to argue that its side should win the case based on the evidence presented at trial; jurors are expected to decide a case based on: (1) what they learn from the two opposing arguments and (2) the deliberations of the group of jurors. With the advent of new technologies, however, jurors can now do their own research, find their own evidence, and solicit feedback from others outside of the jury box. Before these technologies, there were instances of misconduct where jurors visited crime scenes or went home and looked up the definition of a legal term in the dictionary. However, new technologies have made it easier than ever to access information that undermines what happens inside the courtroom with information from outside the courtroom.
Moreover, in conjunction with the rise of new technologies, which has created greater access to information and communication, is our reliance on the instant access they provide. When we want to know the answer to something, we google it. We expect to be able to find the answer to a question or post a Facebook status update at our whim. For many, leaving home without their phone is unimaginable. Internet addiction has even become a treated psychological disorder. Therefore, it is not surprising that the instances of jurors going beyond the courtroom to engage in Internet-related misconduct are on the rise.
Since 1999, at least ninety verdicts have been challenged because of alleged Internet-related juror misconduct, and more than half of them were between 2008 and 2010. Since this information was published in late 2010, one can only imagine how the numbers have grown in the last three years.
III. EXAMPLES OF INTERNET-RELATED JUROR MISCONDUCT
There are many examples of Internet-related juror misconduct, where jurors have conducted factual and legal Internet research, blogged or tweeted about the juror experience, or engaged in improper contact with people involved in the case.
A. Factual Research
As just one of many examples, jurors have attempted to look up a defendant’s prior criminal history. Whether such evidence is presented at trial is typically determined after the parties have filed motions in limine, argued over the merits, and the judge has decided the issue based on the law. If jurors choose to look up a defendant’s prior convictions, then this important legal process has been subverted by the independent research conducted by the juror, which is outside of the controls established by the system.
B. Legal Research
When jurors choose to conduct their own research into the legal issues disputed in a case, there can be severe consequences when the jurors either misunderstand the legal research, find erroneous information, or use the information in an improper way. A particularly problematic example is when jurors look up sentencing ranges, where the knowledge of the sentence then impacts the jury’s decision on guilt.
C. Sharing the Juror Experience
At first blush, sharing one’s experience as a juror seems the least harmful Internet-related juror behavior. However, the fact that jury deliberations take place in secret is one of the fundamental aspects of the jury system. If juror deliberations were made public, then they could be subject to undue external influence. The secrecy of the jury room protects the sanctity of the decision-making process. By blogging or tweeting about one’s experience, it opens up the jury room to outside influences and makes the decision-making vulnerable to public pressure.
D. Improper Contact with Case-Related Individuals
People v. Rios is a recent and prime example of how a simple Facebook “friend request” can possibly influence the outcome of a trial and, at the very least, call into question the validity of a criminal jury verdict. In that case, a juror “friend requested” through Facebook one of the witnesses who appeared in a wrongful death criminal case. When the witness realized that it may be improper, he alerted the court to the friend request. The court was then forced to engage in an investigation as to whether the actions of the juror caused unfairness to the defendant and whether a mistrial should be declared. The time, effort, and cost associated with such an investigation harms not only the litigants in that case, but also the system as a whole.
IV. WHY JURORS ENGAGE IN MISCONDUCT
In many instances of internet-related “misconduct,” the jurors are actually well-intentioned. Most jurors who conduct factual or legal research do so because they feel that they need better or more information than was provided to them at trial. Additionally, the drive and, some may argue, compulsion to be connected to others through social media has become natural. When people update their Facebook status more than once a day, it is hardly surprising that they would want to share a rather atypical experience in their life, like jury duty. The desire to engage in this kind of behavior, which has the impact of undermining the entire trial process, is not ill-intentioned, but rather misplaced. Therefore, it is imperative that the proposed solutions to technology-related behavior by jurors take into account the “why” of Internet juror misconduct as much as the “how.”
V. PROPOSED SOLUTIONS
So how do modern-day courts handle the problem of modern-day juror misconduct? There have been many proposed solutions to the rise of Internet-related juror misconduct; one thing is clear, however: a holistic, multi-faceted approach is required in order to combat the potential of juror misconduct in this modern technological era. A one-step approach will not suffice, where each proposed solution will not fix the problem alone. Only a variety of solutions used in conjunction with one another will combat the effects of technology on juror behavior. Because investigating juror misconduct after the verdict is so difficult, the focus needs to be on preventing the harm before it occurs.
A. Voir Dire
Many attorneys have begun to question potential jurors about their Internet activity before they become jurors. While this makes sense and seems to be good lawyering, it begs the questions: Is digging into a potential juror’s online presence a violation of privacy rights, and, moreover, once it has been established that a potential juror is someone who has a high online presence, what do the litigants do with that information? Given the unease and uncertainty of conducting extensive voir dire on jurors’ Internet presence and usage, this may be a somewhat helpful, but rather limited solution to the problem.
B. Jury Instructions
Jury instructions need to be better-written, easier to understand, more explicit, and provide explanation for the prohibition against case-related Internet usage. Instructions alone will never be able to quench jurors’ curiousity or eliminate the desire of some jurors to disregard them, but they are certainly another piece of the puzzle. The key is that the instructions must not only explain in layperson terms what is prohibited, but also must educate the jurors and explain why the prohibition is necessary. Providing an explanation as to how external research or improper Internet use can damage the entire trial process will be more effective in combatting the misconduct.
C. Penalties for Violating Jury Instructions (As Well as Alerting Jurors to the Penalties)
Many argue that a stronger approach is necessary to combat the serious threat of improper Internet usage by jurors in the form of stronger enforcement processes, such as penalties or fines for jurors who violate their oaths by improperly using new technology while serving as jurors. Holding jurors in contempt and punishing them or fining them for misconduct can act as a deterrent to jurors and decrease the likelihood that jurors may risk such punishments by engaging in misconduct. One scholar suggests using sequestration as a stick, threatening jurors with the possibility of sequestration if they cannot be trusted on their own to abide by the rules. While providing stiff penalties and enforcement tools to combat Internet-related misconduct is important, it is most useful to make those punishments known and understood in the context of explaining why Internet misconduct can be so harmful. Jury instructions should make clear both the reasons why Internet usage is prohibited and then the subsquent punishments if those rules are violated.
D. Limit Internet Access of Jurors
Many courts have begun prohibiting use or possession of cell phones in the courtroom or even the courthouse. While sequestration, where jurors are monitored 24/7, would be the best way to prohibit improper Internet use, the cost and burden of sequestration makes this a viable option in only the most extreme of cases, such as the trials of O. J. Simpson, George Zimmerman, and Casey Anthony. Taking away the use of smartphones, iPads, and laptops while jurors are in the courthouse makes sense and can eliminate the temptation to use technology inappropriately during proceedings. However, it will not work alone, as jurors can certainly look up anything on the Internet after they leave the courthouse. Additionally, the anxiety created by such a measure could leave many technology-addicted jurors in shambles and have negative consequences on the juror decision-making process.
E. Implement Jury Reforms
Many of the reasons jurors engage in misconduct can be reduced or eliminated by implementing some of the reforms that have long been suggested to improve the jury system. While these reforms were not recommended as a solution to technology-related juror misconduct, new technologies may be the impetus to push forward some of the jury reforms that have long been suggested. These reforms include: allowing jurors to ask questions, take notes, and deliberate with each other throughout trial. New technologies have created more active jurors; thus, allowing jurors to become more involved in the trial process can address the juror activity that has emerged through Internet misconduct. If jurors have other options to fill the needs that they are currently using the Internet to fill (i.e. to educate themselves about the case and connect with others), then these reforms could decrease the desire of jurors to go outside of the jury box.
F. Better Lawyering
As with many problems related to juries and the work they do in deciding cases, many of these problems can be addressed through better lawyering. Yes, improved jury instructions and court-implemented juror reforms are necessary, but rather than leaving it up to the court to fix the problem, lawyers should take it upon themselves to make it less tempting for jurors to go beyond the walls of the courtroom to engage in improper behavior. If lawyers do their job in anticipating and answering juror questions, then jurors may not feel as compelled to seek outside information or input.
G. An Additional Consideration: Juror Stress
The stressful impact of jury service on jurors is an emerging area of concern for the legal system. One unanticipated effect of new technologies on jurors can be seen in the form of juror stress. Even if the previously discussed reforms are implemented, none of the proposed solutions address the negative impact of restricting juror access to the Internet. Even if jurors are better instructed and educated about the need to refrain from engaging in improper Internet-related behavior, it does not necessarily make it easier to obey. The need to be plugged-in and connected 24/7 can be an overpowering need for many. How will restricting Internet behavior affect jurors’ psyches and abilities to focus on the case at hand? In fashioning a response to the increase in juror misconduct resulting from new technologies, the response will be incomplete without addressing the anxiety caused by reducing technology use in jurors, if even for a day. The system cannot ignore the notion of juror stress and how the restriction of Internet activities can impact juror well-being and, ultimately, their decision-making abilities.
A few things are clear when it comes to Internet-related juror misconduct. One is that this is a multi-faceted problem that requires a multi-faceted solution. And, two, the impact of restricting the natural, normal, and compelling Internet behavior of jurors may threaten not only the impartiality of jurors, but also their well-being and decision-making capabilities. Given the ever-increasing use of new technology, this is an area that is in desperate need of empirical study. And, with newer technologies on the horizon, the only way for the American legal system to continue to function as intended is by confronting these challenges head-on and by adapting the jury system to meet these technologies as they develop.
* Adjunct Professor, University of Illinois College of Law. Stanford Law School, J.D. 2002; The Illinois School of Professional Psychology, M.A. 2008; Arizona State University, B.S. 1999. Much thanks to Angelica Nizio and the rest of the editors of the the Journal of Law, Technology & Policy.
 Amanda McGee, Juror Misconduct in the Twenty-First Century: The Prevalence of the Internet and Its Effect on American Courtrooms, 30 Loy. L.A. Ent. L. Rev. 301, 308 (2010).
 Kate L. Dysart & Camalia M. Kimbrough, #Justice? Social Media’s Impact on the Jury System, A.B.A. (Aug. 22, 2013), http://apps.americanbar.org/litigation/committees/trialevidence/articles/summer2013-0813-justice-social-media-impact-us-jury-system.html.
 Patterson v. Colorado, 205 U.S. 454, 462 (1907).
 Dara Kerr, Over Half of American Adults Own Smartphones, CNET (June 6, 2013, 1:01 PM), http://www.cbsnews.com/8301-205_162-57588043/.
 Lee Rainie, Pew Research Ctr., Internet, Broadband, and Cell Phone Statistics 1 (2010), available at http://www.pewinternet.org/~/media//Files/Reports/2010/PIP_December09_update.pdf.
 Associated Press, Number of Active Users at Facebook over the Years, Yahoo News (May 1, 2013, 7:27 PM), http://news.yahoo.com/number-active-users-facebook-over-230449748.html.
 John Paczkowski, Who’s Your Daddy? IPad Rewriting Adoption Records, All Things Digital (Oct. 5, 2010, 4:50 AM), http://allthingsd.com/20101005/whos-your-daddy-ipad-rewriting-adoption-records/.
 Michael Springer, 57 Cities Now Have Free Wi-Fi, but They’re Not Thinking Big Enough, PolicyMic (Oct. 9, 2013), http://www.policymic.com/articles/66891/57-cities-now-have-free-wi-fi-but-they-re-not-thinking-big-enough.
 Caren Myers Morrison, Can the Jury Trial Survive Google?, Crim. Just., Winter 2011, at 5.
 McGee, supra note 1, at 309.
 Brian Grow, As Jurors Go Online, U.S. Trials Go Off Track, Reuters (Dec. 8, 2010, 3:23 PM), http://www.reuters.com/article/2010/12/08/us-internet-jurors-idUSTRE6B74Z820101208.
 People v. Garcia, No. C049205, 2007 WL 29949, at *5 (Cal. Ct. App. Jan. 5, 2007); see also Nick Madigan, Juror’s Misconduct Leads to New Trial in Gang Killing, Balt. Sun (Sept. 12, 2010), http://articles.baltimoresun.com/2010-09-12/news/bs-md-marshall-newtrial-20100911_1_rival-gang-member-pasadena-denver-lanes-three-jurors (vacating a Baltimore gang member’s conviction after juror performed an Internet search on the defendant’s prior criminal record).
 Morrison, supra note 9, at 7.
 Timothy J. Fallon, Mistrial in 140 Characters or Less? How the Internet and Social Networking Are Undermining the American Jury System and What Can Be Done to Fix It, 38 Hofstra L. Rev. 935, 938–39 (2010); J. Paul Zimmerman, A Practical Guide to the Development of Jury Charges Regarding Social Media, 36 Am. J. Trial Advoc. 641, 645–49 (2013).
 People v. Rios, No. 1200/06, 2010 WL 625221, at *2 (N.Y. Sup. Ct. Feb. 23, 2010). The case arose out of the deaths of two New York firefighters.
 Fallon, supra note 14, at 945–53.
 McGee, supra note 1, at 317–18.
 Fallon, supra note 14, at 954–67.
 Ralph Artigliere, Sequestration for the Twenty-First Century: Disconnecting Jurors from the Internet During Trial, 59 Drake L. Rev. 621, 638 (2011).
 Id. at 639–40; see also Matt Richtel, Attached to Technology and Paying the Price, N.Y. Times (June 6, 2010), http://www.nytimes.com/2010/06/07/technology/07brain.html?pagewanted=all&_r=0.
 See, e.g., Akil Amar, Reinventing Juries: Ten Suggested Reforms, 28 U.C. Davis L. Rev. 1169 (1995) (providing various suggestions for jury reform).
 Artigliere, supra note 20, at 632; Morrison, supra note 9, at 13.
 Nicole L. Waters & Paula Hannaford-Agor, Jurors 24/7: The Impact of New Media on Jurors, Public Perceptions of the Jury System, and the American Criminal Justice System 2–3 (2012), available at http://www.ncsc-jurystudies.org/What-We-Do/~/media/Microsites/Files/CJS/What%20We%20Do/Jurors_%2024-7_REV011512.ashx.
 Artigliere, supra note 20, at 633–634.
 See, e.g., J. Chris Nordgren & Matthew W. Thelen, Helping Jurors Manage Stress: A Multilevel Approach, 82 Judicature 256, 259–62 (1999) (explaining ways for jurors to manage stress during the trial).
 See Richtel, supra note 21; Henry Wallop, People ‘Anxious’ When Cut Off from Internet, Telegraph (Oct. 13, 2009, 7:00 AM) http://www.telegraph.co.uk/technology/news/6307460/People-anxious-when-cut-off-from-internet.html (detailing the anxiety many people feel when cut off from technology).
 See Artigliere, supra note 20, at 627 (stating that taking away technology from people evokes unexpected reactions and concerns).