Juries Use Web 2.0 To Take Fact Finding Into Their Own Hands

December 14th, 2009

I previously blogged about a possible mistrial in the trial of Baltimore Mayor Sheila Dixon because jurors communicated about the trial on facebook. Interesting article from the Baltimore Sun (H/T How Appealing). How can Judges cope with jurors using Web 2.0 to learn information about the trial outside of court?

But information that a decade ago was inconvenient for inquisitive jurors to learn is now at their fingertips, on their cell phones, hand-held devices and laptops. Social media didn’t exist. That is leading lawyers and judges to gnash their teeth over what they believe is a growing problem of jurors Web-surfing and posting their thoughts.

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.

Verdicts are being challenged on these grounds.

The American Bar Association noted that in March, an eight-week federal drug trial in Florida ended in a mistrial – not because one juror tattled to the judge that another had resorted to cyberspace searches about the case. After asking all 12 jurors, the judge learned that eight others had Web-surfed, too.

Appeals elsewhere are based partly on jurors’ posts on Twitter and Facebook, according to the ABA, with worries about the lack of control and breach of trust.

This has become such a strong problem that some jurisdictions are considering rewriting jury instructions.

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.

Most judges specifically tell jurors not to look up anything connected to the case online, going beyond the warning to stay away from the news and not discuss the case with each other until deliberations start or with anyone else until the trial ends. Courts confiscate jurors’ cell phones and hand-held devices during a trial – but short of sequestering jurors, judges cannot control jurors going online or texting at other times.

What makes Web 2.0 so different is the ease with which jurors can find information about the trial. They can look up the defendant’s facebook page, view a google street view image of the crime scene, or even look up a defendant’s criminal history. Knowing prior bad acts is highly prejudicial.