Thomas Melsheimer and Craig Smith
June 21, 2009
Web-savvy jurors these days encounter a court system that by necessity still operates in essentially the same manner as it has for generations. In a world of lightning speed exchanges of electronic information, our courts continue to rely on hard copy documents and judges who must serve as heavy handed gatekeepers of information. Lowly jurors accustomed to instant gratification and a two-way information exchange increasingly find themselves in an unfamiliar and uncomfortably passive role.
Simultaneously, as Americans use social media to provide a now-ubiquitous “what are you doing?” running daily dialogue via Facebook and Twitter, a stint on jury duty is proving irresistible fodder. Never mind that our justice system hinges on a sacred premise that jurors start a case with an unprejudiced, blank slate and promise to consider only the information and evidence presented in trial.
The jury system has weathered plenty of assaults before, by corporate lobbying groups that want to circumvent the system, by judges who don’t trust juries in the first place, by parties who want to supplant jury trials with arbitration hearings. What’s new is the enormous influence of the Internet and the ease with which jurors can now gather information about a case, as well as personally broadcast information. Not that long ago, judges worried that jurors might perform independent research on a case by visiting the scene of an accident or going to the library to research something about the parties or the case. The threat of contaminating a jury with unauthorized information about a case is now just a Google search away.
There’s reason to wonder whether this durable institution as we know it can survive unscathed in this age of instant information delivery. Consider these well-documented recent examples:
• During a major federal drug trial earlier this year, the trial came to a screeching halt when eight sitting jurors admitted to obtaining information about the case from the Internet.
• During a political corruption trial in Philadelphia, a juror provided a running commentary about the case on Facebook. The defense objected, but the trial was allowed to continue. The defendant, a former state senator, was convicted.
• In Arkansas, a juror used his cell phone to post Twitter updates during the trial. When revealed, he couldn’t understand what the fuss was about.
• Finally, when a juror in England could not decide on a case, she posted details about the trial and asked readers to vote on how she should rule.
We rely on juries to bring common sense and, in some ways, the “conscience of the community” to bear on every case, but we can’t ignore Web 2.0’s game-changing influence.
The Internet as we know it is not like any other information gathering device to date, any more than the invention of the printing press was like any other machine of its time. Unchecked, it has the potential to undermine the rules upon which our faith in the jury is based and has the ability to harm the system worse than any so-called judicial reform ever could.
Some might see this latest challenge as more fodder for the argument that juries are an outmoded and unintelligent way of resolving disputes. We have seen this sort of debate before. Others might say that we should just relax and assume that jurors will follow the instructions that they are given.
We think that neither approach is sensible. Instead, judges must take an intelligent, active approach to instructing jurors about the Internet, keeping in mind the temptations of the modern Internet-savvy juror. They must allow, even encourage, lawyers to ask questions about potential jurors’ use of the Internet, including participation in networking sites like Facebook and Twitter.
Simply reminding each juror, “don’t discuss the case,” just won’t get the job done anymore, if it ever did. These instructions can’t wait until a jury is sworn in but should begin when potential jurors first enter the system and receive their briefing in the central jury rooms. Otherwise, the judicial system will find itself meting out justice, not via the common sense of citizens, but via tweets, text messages and blog postings. OMG.
Melsheimer is a former assistant U.S. attorney and is now managing principal at Fish & Richardson in Dallas. Smith presides over the 192nd Civil District Court in Dallas County.