Legally Speaking: When All That Twitters Is Not Told -- Dangers of the Online Juror (Part 3)

John G. Browning Jul. 29, 2009, 2:00pm

In previous installments of this series, we've examined how technology in the form of electronic communications by jurors has entered the jury box.

Whether it's blogging, tweeting, consulting social networking sites like Facebook or looking up information about the parties on sources like Wikipedia, the online activities of jurors during trial threaten the integrity of the proceedings.

It is a problem that is national in scope; in addition to the cases discussed earlier in this series, the South Dakota Supreme Court is poised to rule on whether or not a new trial is warranted in a case where a potential juror "Googled" the defendants in a product liability lawsuit � before the trial ever began.

In Shawn Russo, et al. v. Takata Corporation (a Japanese seat belt manufacturer), and TK Holdings (its American subsidiary), the plaintiffs claimed that Takata's seat belts were defective and had unlatched during a rollover accident.

When one of the would-be jurors received his jury duty summons, he did a Google search for Takata and TK Holdings, examining the Web pages for the two companies that were previously unknown to him. During jury selection, the panel member was never directly asked if he'd heard of either company, and he didn't volunteer information about his online searching. He wound up serving on the jury.

Several hours into deliberations, he responded to another juror's question about whether Takata had notice of prior malfunctioning seat belt claims by disclosing his earlier Google searches, and stating that his cyber sleuthing hadn't turned up any other lawsuits. At least five other jurors either heard his comments directly or were made aware of them during the rest of the deliberations.

After the jury returned a verdict in favor of Takata and TK Holdings, plaintiffs' counsel sought a new trial, arguing that the juror's information should not have been brought into deliberations. The trial judge agreed, and granted the motion.

The defendants appealed to South Dakota's highest court, arguing in part that the fact the information was obtained before trial even began and that this could have been discovered during jury selection, prevents it from being prejudicial.

According to Kevin King, one of the plaintiffs' lawyers, not only did the juror's Internet research constitute misconduct, but it's also becoming an all too familiar occurrence.

"We've seen it come up repeatedly. In another product liability case tried in Texas, federal Judge Mary Lou Robinson in Amarillo specifically instructed jurors not to consult or do research on the Internet. It's become part of her standard instructions."

What can judges do to combat the pervasive problem of the online juror?

Some commentators have recommended that courts confiscate (temporarily) the smart phones, Blackberrys and similar wireless devices from prospective jurors when they report for jury duty.

Of course, this accomplishes nothing in the case of a non-sequestered jury, whose members could easily conduct Internet research on their own time. Other observers have suggested doing nothing since it's impossible to completely control jurors.

One possible approach, advocated by a growing number of Texas judges, is to go beyond the current boilerplate instructions to jurors and specifically include references to the Internet and social media as part of the standard admonitions to jurors not to read about or do any outside research on the case they happen to be hearing.

A juror who recently served on a panel in Judge Tom Lowe's 236th District Court in Tarrant County reported that, in addition to these standard written instructions, Judge Lowe made a point to caution against looking up the case or the parties on the Internet.

Similarly, Dallas criminal court Judge Andy Chatham specifically tells his jury panels not to conduct Internet research or to visit websites mentioned in testimony, pointing out that "the Internet sometimes gets it wrong."

Judge Chatham adds that judges have to balance acknowledging everyday realities and jurors' needs with the seriousness of a juror's role.

"Every judge I've talked to instructs the jurors. We know you have your cell phones. Use them to call your work. Use them to contact your friends and family, but don't use them to research this case," he says.

Texas' current set of instructions for jury panel members and the jurors ultimately selected to serve are found in Rule 226a of the Texas Rules of Civil Procedure. Among other subjects, these instructions direct jurors not to "discuss anything about this case, or even mention it to anyone whomsoever" while serving on the jury.

They also go on to warn jurors not to "make any investigation about the facts of this case," not to conduct "personal inspections, observations, investigations or experiments" or to "personally view premises, things or articles not produced in court," as well as to not "seek information contained in law books, dictionaries, public or private records or elsewhere, which is not admitted in evidence."

While jurists like Judge Lowe and Judge Chatham feel that going beyond what's written to include prohibiting Internet research is simply an acknowledgment of technological reality, not every judge agrees.

Judge Brett Hall of Rockwall County's 382nd District Court does not deviate from the standard instructions contained in Rule 226a, concerned that referring to specific outside sources like Google or social networking sites might "plant the seed or suggestion in a juror's mind" about such online avenues.

Still, while he reports never having had an issue with jurors engaging in digital digging on the Internet, Judge Hall concedes that "sooner or later, we're probably going to have to amend the jury instructions" to encompass online activities.

That's a path that a number of states are taking or are in the process of considering. The National Center for State Courts reports that court administrators across the country are addressing the problem of potential juror online misconduct.

Josh Marquis, an Oregon district attorney and a director of the National District Attorneys Association who has seen text messages and Google searches by jurors tamper with his own cases, says that rules need to be updated to include electronic communications.

As he puts it, the ease of the Internet and handheld technology "almost invite people to do extrinsic research," leaving us with a situation in which "technology has far outpaced the court rules."

In July, Michigan became the latest state to change its rules to combat the problem of online jurors. In a ruling by the Michigan Supreme Court that goes into effect Sept. 1, Michigan judges will be required for the first time to instruct jurors not to use any handheld device, such as iPhones or Blackberrys, while in the jury box or during deliberations. All electronic communications by jurors during trial � "tweets" on Twitter, text messages, Googling, etc. � will be banned.

Charles Koop, immediate past president of the Prosecuting Attorneys Association of Michigan and a proponent of the new rule, maintains that this measure will particularly aid older or less tech-savvy judges in keeping jurors from doing things in the courtroom without the court's knowledge. With constantly evolving technology and new applications for wireless devices, Koop says, "We're playing catch-up."

Of course, just because a judge may be tech-savvy doesn't mean that he or she is any more immune than a juror to pitfalls associated with Internet usage during trial.

Judge B. Carlton Terry Jr. was recently publicly reprimanded by the North Carolina Judicial Standards Commission for "friending" a lawyer on Facebook during a pending case, posting and reading messages about the litigation, and accessing the Web site of the opposing party.

After a discussion of Facebook in chambers during a child custody/child support case (in the presence of opposing counsel Jessie Conley), Judge Terry and lawyer Charles Shieck "friended" each other.

Shieck then began posting messages referring to aspects of the case, including how long trial would last, whether or not one of the litigants had been guilty of an affair, and even noting "I have a wise judge."

Judge Terry not only responded to these postings, but also used the Internet to independently gather information, including "Googling" the photography business run by Ms. Conley's client and finding various poems written by that client.

After the conclusion of the trial, Judge Terry disclosed to both parties that he visited the Web site of Ms. Conley's client, and later disqualified himself and vacated his child custody/child support order at Ms. Conley's request (a new trial was also ordered).

The Commission found that Judge Terry's ex parte communications and independent gathering of information reflected a "disregard of the principles embodied in the North Carolina Code of Judicial Conduct," and constituted conduct "prejudicial to the administration of justice that brings the judicial office into disrepute."

As we survey the mistrials and overturned verdicts dotting the legal landscape due to jurors' online activities, it becomes painfully evident that the easy access and global reach of wireless technology is in danger of transforming the jury box into Pandora's box.

John Adams once wrote that it is "not only [the juror's] right, but his duty, in that case, to find the verdict according to his best understanding, judgment, and conscience."

If the conscience of the jury is to remain the yardstick of justice in our information-driven 21st century, in which people blog, "tweet," text and otherwise share their experiences with extended social networks, then courts must do a better job of instructing jurors about the "off limits" nature of such electronic communications.

In an age in which digital intimacy is rapidly becoming the social norm and where the sanctity of the jury room can be violated at the speed of a search engine, jurors need to know not only that courts remain the last bastion of controlling access to information � they also need to know why.

For our system of justice to function, an individual's constitutional rights to due process, to a jury trial, and to confront the witnesses and evidence against him must be zealously protected.

Allowing jurors to consider Internet "evidence" that hasn't been subjected to scrutiny by both sides to a case, or to be influenced by the postings of Facebook "friends" or Twitter "followers," undermines this protection.

Social networking, the Internet, and the iPhone or Blackberry may have altered our daily lives with their innovations, but they shouldn't alter our principles.

John Browning is a partner in the Dallas office of Gordon & Rees, LLP. He may be contacted at:

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