Reprinted with permission from FindLaw.com
Jurors routinely are admonished by judges only to consider the evidence presented to them at trial and not to consider outside information. How is that working in this electronic age? Not so well. There have been a number of reports of jurors going online to learn about and communicate regarding the cases on which they are serving.
Once upon a time, when jurors were given this admonition, perhaps it was much easier to follow. They readily could understand that they were not to visit the scene of an accident, for example. And even going to visit that location may have been too much trouble anyway.
However, these days all types of information is immediately available to jurors fingertips electronically. A simple Google search on a Blackberry can provide all sorts of information about the parties and circumstances of a case within seconds.
We now live in a culture of instant information access and influencing a jury becomes much easier. People are use to electronically searching for and sharing information constantly. Thus, when a judge tells jurors not to consider outside information, while they may not visit the scene of a particular incident, some of them still may have a reflexive instinct to find out more. And their internal motivation may not seem devious to them; they may simply feel that they are given incomplete information at trial, and they want the full context. Of course, what they do not appreciate in that scenario is that the rules of evidence are in place for a reason – to make sure that only reliable and competent evidence is considered.
One option is for judges not only to provide a general admonition against considering outside information; judges also could be more specific in terms of prohibited activities and they could warn of potential sanctions for jurors who engage in these activities. Of course, younger jurors have grown up being told by authority figures how to behave on the Internet, and some of them are accustomed to do what they want anyway. Still, more specificity and the threat of sanctions could get the attention of at least some jurors.
Another option is to have a more active conversation with jurors during voir dire. Rather than simply being told how to behave, and it might be prudent to have jurors respond and actually state in their own words their understanding of what they are and are not to consider as part of their role as the finders of fact in a case. This could help solidify how they should act, and it might be reinforcing to other jurors who hear the words of their juror peers.
And, jurors could have more freedom to submit their questions to the judge at trial. This would allow them to voice any confusion they may have in terms of their conduct along the way, and the judge then could provide ongoing guidance. Also, the jurors' questions might elucidate areas of the case that truly do need to be covered. The judge then could steer the case in that direction as a matter of proper evidence, and this might prevent jurors from going outside the case to learn more.
These solutions will not prevent all jurors in all cases from conducting their own electronic research. However, these measures could reduce the frequency of such conduct.
Eric J. Sinrod is a partner in the San Francisco office of Duane Morris. His focus includes information technology and intellectual-property disputes. This column is prepared and published for informational purposes only, and it should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners
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