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Editor: Colin Miller
Univ. of South Carolina School of Law

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Tuesday, December 15, 2009

Curiosity Killed The Jury, Take 3: Baltimore Sun Lists Several Instances Of Technology-Assisted Jury Misconduct

Is the jury system broken? I've done several posts over the last year about how new technologies are causing (or should be causing) mistrials across the country. Back in March, I posted an entry about jurors improperly exchanging e-mails during trial and "wonder[ed] whether improper e-mailing among jurors is an increasing problem that courts will have to address at some point." Later that month, I posted an entry about mistrials being declared after jurors improperly used Google and twitter to look up and communicate details about the cases they were hearing.  In May, I  posted an entry about a mistrial being declared after a witness engaged in text-messaging while he was on the witness stand. And in November, I posted an entry about three more instances of curiosity killing the jury. More recently, an article in Sunday's Baltimore Sun lists several other instances of such jury misconduct.

According to the article:

-Last week, a Maryland appeals court upended a first-degree murder conviction because a juror consulted Wikipedia for trial information;

-Earlier this year, the appeals judges erased a conviction for three counts of assault because a juror did cyberspace research and shared the findings with the rest of the jury;

-In a third recent trial, a juror's admission to using his laptop for off-limits information jeopardized an attempted-murder trial;

-On Friday, lawyers for Baltimore Mayor Sheila Dixon  asked for a new trial in part because five of the jurors who convicted her of embezzlement Dec. 1 were communicating among themselves on Facebook  during the deliberations period - and at least one of them received an outsider's online opinion of what the verdict should be. 

More specifically,

Last week, the Court of Special Appeals voided the 2008 first-degree murder conviction of Allan Jake Clark, accused of beating a man to death in 2007.

In the jury room, a bailiff in the Anne Arundel County Circuit Court trial had found printouts of Wikipedia explanations of scientific terms. Judge Paul A. Harris Jr. denied the defense's request for a mistrial.

Writing for a panel of the Court of Special Appeals that overturned the conviction, Judge Charles E. Moylan Jr. said that an "adverse influence on a single juror compromises the impartiality of the entire jury panel."

Particularly important was that the Wikipedia definitions discussed details of how the settling of blood after death can help determine the time and place of death - which were issues at Clark's trial.

In May, the court erased the 2007 conviction in Baltimore of Zarzine Wardlaw on three counts of assault. During deliberations, a jury note advised the judge that one juror told the rest of having researched "oppositional defiant disorder" online and that ODD is associated with lying. That was critical to the credibility of a person who made allegations against Wardlaw, the appellate judges wrote.

In November, a juror in the attempted-murder trial of Jerold Raymond Burks in Anne Arundel County admitted during deliberations to having Web-surfed to read news stories about the case. But not everything he shared with fellow jurors was still accurate. Neither the prosecution nor defense sought a mistrial. The jurors were told correct information - but that subject had not been part of Burks' trial. He was found not guilty.

In the Dixon trial, Judge Dennis M. Sweeney warned jurors repeatedly not to text, tweet or in any way discuss the case outside the deliberations room. But five apparently became Facebook "friends" and their postings on one another's public Facebook walls mention the case.

In addition to detailing these acts of jury misconduct, the article paints a pretty accurate picture of other ways in which curiosity can now kill the jury. According to the article,

A decade ago, jurors who wanted to see the neighborhood where a crime took place had to go there; now, they can see it on Google Earth from a BlackBerry. They can check out a defendant's criminal past on Web sites, witnesses on Facebook, and what users think about a company on consumer blogs - all information that probably was excluded from evidence. Sharing thoughts about a pending case now may include jurors' social media posts that anyone can read.

The article also lists ways in which courts and litigants are trying to prevent such jury misconduct. The article notes that:

Concern has grown so much nationwide that legal experts, including in Maryland, are rewriting model jury instructions to specifically tell jurors that online searches, texting and social media - the things they routinely do on laptops, cell phones and BlackBerrys - are out. Maryland's rules are expected to be published next year, and the ones on that subject are still being drafted....

"More and more states are including an expanded and more specific instructions [to jurors] that they shouldn't do it and it's improper. Newer-pattern jury instructions around the country will refer to Twitter and Facebook and all of these new things that the younger generation is so familiar with," said Irma S. Raker, retired judge of the Maryland Court of Appeals, who chairs a panel updating Maryland's instructions.

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/12/jurors-cyberspacehttpwwwbaltimoresuncomnewsmarylandanne-arundelbal-mdartmi13dec1302858534story.html

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