Thursday, April 14, 2011
Readers of this blog know my great interest in stories regarding jury misconduct (see, e.g., here, here, here, here, and here) and whether the very idea of trial by jury can survive the new technological era (see, e.g., here, here, and here). What I haven't addressed nearly as much is what courts can and should do to address the jury impeachment in the internet era (I think that my only posts on the subject are here and here). This latter topic is the subject of Jury 2.0, a thought-provoking article forthcoming in the Hastings Law Journal by Caren Myers Morrison, a professor at the Georgia State University College of Law.
Morrison's basic argument is this: The American jury is like a smart kid. He showed some early promise, but now he's not being challenged. And because he's not being challenged, his mind wanders, and he starts to misbehave. So, we need to challenge him. We need to force him to re-engage with the material. And by doing so, his long latent promise can start to shine through again.
Jurors (and Jury Consultants) Behaving Badly
In Part I of her article, Professor Morrison begins by setting forth the reason why jurors are only supposed to decide cases based upon evidence admitted in open court:
Only in open court can a defendant’s constitutional rights to confrontation, cross-examination, and counsel be protected; a defendant has no means of defense against influences, insinuations and information that reach the jury behind his back.
She then provides a laundry list of the ways in which jurors have circumvented the system, noting that
a quick survey of recent cases shows instances where jurors have Googled the defendant, the names of co- conspirators, and the defense lawyer. In other cases, jurors discovered that a prosecution witness was in protective custody because of the defendant, looked up the MySpace profile of one of the teenage victims in a felony sexual abuse case, accessed the Facebook page of a defendant accused of aggravated burglary with a weapon, where he showed a picture of himself holding a gun, tried to look up the defendant’s prior criminal record on a police department website, looked up defendants’ ages and dates of birth, looked up the driving record of a truck driver in a negligence action, researched oppositional defiant disorder, researched alternative causes of death in a manslaughter case, researched the effect on blood alcohol of the drug Narcan in a vehicular homicide case, looked up a definition of “lividity” and the role it might have had in fixing the time of a beating victim’s death, researched the injury of retinal detachment in a child murder case, and determined whether a particular type of firearm could have damaged a bullet-proof vest.
Of course, such juror fact-finding is not a new phenomenon (indeed, as Morrison later notes, it used to be part and parcel of jury duty), but, with the internet, both the breadth of such extraneous information and the ease with which it can be accessed have increased exponentially (e.g., a juror trying to decide whether the defendant could have arrived home from a bar in time to commit a murder could previously have driven the route herself; now, the "answer" can be found with some typing and a few clicks of the mouse on Mapquest). Morrison even cites to one English study in which 25% of jurors admitted to seeing information about their cases on the internet during trial. Such information can include the defendant's prior record, which is inadmissible for most purposes at trial and yet easily accessible (and yet of questionable accuracy) on the internet.
Morrison proceeds to note that almost all jurisdictions (1) preclude jurors from deciding the law as opposed to applying it to the facts; and (2) leave sentencing decisions to the judge and warn juries not to concern themselves with the consequences of their verdicts. And yet, jurors nowadays easily acquire (often misleading) legal information on the jury, including definitions of the elements of charges and defenses and sentencing ranges.
Courts also immunize most jury verdicts from post-trial scrutiny pursuant to Federal Rule of Evidence 606(b) and state counterparts, which are based upon, inter alia, a public policy of wanting to insulate jury deliberations from public scrutiny and ensuring the freedom of deliberations. But Morrison wonders how much these considerations still govern in a world where jurors constantly post entries on social networking sites about their jury duty (Indeed, this phenomenon has become so ubiquitous that it formed the basis for a piece of performance art by Steve Martin). She also wonders how we can expect jurors to be internet ostriches when lawyers and jury consultants are increasingly scouring the world-wide-web for information about jurors' high school crushes and favorite movies.
In Part II, Professor Morrison details certain existing and potential solutions to jurors behaving badly and their drawbacks. First, there is the jury instruction to avoid going online to learn more about a case, which ironic process theory would tell us is about as effective as telling jurors not to think about a white bear (or not to press a button). Then, there is confiscation of electronic devices at the courtroom door, which only delays web-surfing until the jurors arrive home. And then there's jury sequestration, which is costly and increases the likelihood of large chunks of the citizenry refusing to participate.
The Historical Jury
In Part III, Professor Morrison notes that juries used to be "self-informing," with at least some juror investigation into facts beyond what was presented in the courtroom. And while there was always of course the requirement of an impartial jury, the historical conception of impartiality was not coextensive with ignorance of the parties and the matter being disputed. In this sense, it was indeed a trial by jury of one's peers, neighbors knowing the character and circumstances of the parties and the action. Moreover, it was widely accepted that juries would or at least could be the judges of the law as well as the facts. Thus, Morrison claims that
There seems to be solid historical precedent for a better informed, more active jury. Under the common law and colonial jury model, the jury was more on par with the judge and was an active participant in the process. The jury also had flexibility to exercise mercy and determine penalties in a way that could subordinate the law to its members' sense of justice. Arguably, such a jury more accurately reflected the conscience of the community than one which does not have access to all the facts and has no say over the law.
Back to the Future
This discussion then leads Professor Morrison to propose some possible solutions to these issues, i.e., Jury 2.0:
-not only instructing jurors to refrain from researching cases online but also explaining to them why they should only rely upon evidence presented in open court;
-in at least some circumstances, informing jurors about sentencing consequences and allowing them to determine certain issues of law;
-allowing jurors to take notes and ask questions (vetted by judges and lawyers), practices which most jurisdictions currently preclude;
-permitting jurors to discuss cases amongst themselves before they are over, as long as they don't make ultimate determinations;
-providing an anonymous forum in which jurors can express their frustrations; and
-curbing parties' investigations into jurors.
Of course, there are costs associated with each of these proposals, but I agree with Professor Morrison that they have the potential to create a more engaged jury, a far preferable outcome to the status quo, where we treat jurors paternalistically and yet are still flabbergasted when they (increasingly) misbehave. I wholeheartedly endorse the article to readers and hope that courts look to the article as they inevitably begin to look for solutions to a problem that seems to be getting worse every day. I asked Professor Morrison what lead her to write the article, and she responded,
I think I began thinking about the piece when I read an article in the New York Times entitled, "If You Run a Red Light, Will Everyone Know?" That was back in 2008, when the phrase "Google mistrial" hadn't yet become a staple of newspaper headlines. I was working on issues relating to criminal records on the Internet, and was particularly interested by a website mentioned in the news article that enabled people to run anyone's criminal history through all states, without even registering or paying a fee. (I checked myself, but apparently neither I nor any of my aliases have a rap sheet. At least not one that appears on CriminalSearches.Com). That made me think of the potential havoc that might happen if criminal defendants with prior records went to trial and jurors began checking up on them.
Once I started looking into it, I found that there were multiple issues involved in the collision of the Internet and the jury trial, beyond the fact of jurors having unprecedented access to information online. There was also the facilitation of improper contacts between jurors and third parties, jurors conveying information themselves either through Tweets or blogs or other postings, and even the reverse problem of jurors being investigated online in much more intrusive ways than a court might permit on voir dire. So "Jury 2.0" was my attempt to engage with these issues beyond the initial "Oh, those naughty jurors!' reaction. I think there are root causes, particularly a desire to know as much as possible in order to reach the right verdict, that will require more than simply telling jurors to turn off their iPhones. And I believe that we may eventually have to rethink the jury's role, and maybe even our exclusionary system of evidence rules, as society and technology continue to change.