40 November 2010 | | Trial

The Wired Juror,

The modern jury system is facing new chal-lenges as people’s habits of communicating and accessing information evolve in a rapidly expanding electronic world. Media reports and posttrial interviews reveal that jurors in communities across the country are texting, e-mailing, chatting, and blogging about their jury service.1 A regular flow of new juror blogs each day reports everything from “I’m so bored” to “He’s so guilty” to “I just gave away $12 million of someone else’s money.”2

Some jurors are supplementing courtroom evidence with their own online research as they seek “independent” opinions and answers to questions that are not addressed in court.3 In one of the only large-scale stud-ies on the issue, the U.K. Ministry of Justice found that 17 percent to 39 percent of jurors admitted online exposure (either intentional or unintentional) to information about the cases they were deciding while they were serving as jurors.4 In response, judges are

Many jurors who are used to googling, texting, and tweeting all day fi nd

it hard to change their behavior while on jury

duty. But a fair trial demands that jurors

leave their online habits at the courtroom door. Here are some ways to address the issue with

jurors and judges.

The Wired Juror,

The modern jury system is facing new chal-lenges as people’s habits of communicating and accessing information evolve in a rapidly expanding electronic world. Media reports and posttrial interviews reveal that jurors in communities across the country are texting, e-mailing, chatting, and blogging about their jury service.1 A regular flow of new juror blogs each day reports everything from “I’m

Many jurors who are used to googling, texting, and tweeting all day fi nd

it hard to change their

By || S u s a n M ac p h e r s o n a n d B e t h B o n o r a

Trial | | November 2010 41wALter B. mCKenZIe/Getty ImAGeswALter B. mCKenZIe/Getty ImAGes

42 November 2010 | | Trial

The Wired Juror, Unplugged

revising their admonitions to jurors and toughening sanctions on jurors who dis-regard them.5 These steps should help eliminate the electronic activity that may result from genuine confusion about the rules—or from supposed loopholes identi-fied by jurors like the one who began his post by saying: “Hey guys! I know jurors aren’t supposed to talk about their trial, but nobody said they couldn’t LIVE BLOG it, right?”6

But jury instructions are only part of the solution. A fundamental shift has occurred in the way some jurors think about their rights to access information. When those jurors have unanswered questions about the issues they are asked to decide, they won’t think twice about searching for the missing information online. One juror commented on a news report about mis-trials caused by jurors’ Internet research, “What’s the big deal? If I’m called to jury duty I have the right to know every detail about a case, not just what the lawyers tell us in the courtroom.”7

Many jurors under 40 are used to keeping their electronic devices close at hand and ignoring any authority figure who attempts to impose prohibitions on their access to the Internet. The threat of sanctions has not significantly improved compliance.8

But addiction to Internet access is not limited to young jurors. Research demon-strates that noncompliance with restric-tions on Internet access is a potential problem across almost all age groups.9 To get “wired” jurors to cooperate, we need to look at not only how jury instructions are framed but also how other aspects of the trial process should be adjusted.

Better Jury InstructionsIdentifying the reasons for noncompli-ance with the prohibition on Internet use is a good place to begin working on the remedies. We see three primary, inter-related factors:• Jurors do not feel they have been

given a sufficient explanation of the rationale for the rules.

• Jurors don’t fully grasp the nature of their role as judges of the facts in the trial process.

• Jurors are highly motivated to make the right decisions, but they often feel they lack the information they need to do so.From our own posttrial interviews con-

ducted over 35 years, it is clear that most jurors want to make the right decision and fear making a mistake, whether it is send-ing an innocent person to prison, letting a corporate defendant off too lightly, or giving a plaintiff too much money.

Jurors want more information—more clarity about the meaning of legal terms, more background and context, and a better understanding of who the parties really are and what their situa-tion is. When the answers are readily available, the wired jurors believe that fairness will be enhanced, not harmed, by gathering that information. They are likely to reject outright the notion that getting more information about the par-ties and facts in dispute—from what is presumed to be a neutral source—would negatively affect their ability to make an impartial decision.

The deeply ingrained habit of satisfy-ing one’s curiosity or resolving even minor factual disputes by getting instant answers online makes it difficult to accept the pro-hibition on doing so when confronted with a truly important decision. When the judge says, “Don’t use the Internet,” some jurors can’t believe the judge really means, “No Internet use.”

Noncompliance with electronic device rules is a well-established cultural norm that magnifies the problem. While many people may disapprove of a fellow juror using social media to discuss the case with outsiders, the “social sanctions” aren’t likely to extend much beyond that, as demonstrated by media reports of jurors discussing the case among themselves on

Facebook and sharing Internet research during trial.10

To get through to jurors who can’t quite believe that the judge really means no communication and no research, the judicial admonition needs to do more than “just say no.” Social science research on persuasion has demonstrated that com-pliance can be measurably increased by simply adding the word “because” and some type of explanation.11

Jurors are told that getting information outside of court could lead to problems, but they need to know why this is the case. Their desire to make the right decision is the key to persuading them that they should look to the courtroom, not to the Internet.

Many judges are open to experiment-ing with different approaches to jury instructions now that it has become apparent that the threat of an Internet-driven mistrial applies to every case. Consider proposing that the judge try expanding the admonition based on the instructions in the sidebar accompanying this article (on page 44). If the judge isn’t willing to depart from the standard text, ask whether he or she would permit you to discuss some of these concepts in voir dire as a preface to the questions about whether each juror is willing and able to abide by the rules.

Voir Dire QuestionsAnother strategy proven to increase compliance is to get prospective jurors to actively take on their role as judges by asking them whether they understand and can carry out that responsibility. Judges tend to tell jurors what is required and ask for passive agreement, but trial attorneys can discuss these issues with jurors in voir dire and get them actively involved in making the decision to abide by the rules.12

Ask jurors whether they regularly com-municate online with tweets, texts, posts, or blogs. Then ask those who do how they

Trial | | November 2010 43Andrew PAterson/Getty ImAGes

will handle a temporary change in their normal habits, and ask them to rehearse what they would say to their online con-tacts if selected as a juror.

Walking through this process dem-onstrates how sending out any informa-tion about the trial, even if it may seem innocuous, can easily generate the type of problem the rule is intended to avoid. If someone posts “serving on a products liability case,” he or she is likely to get a barrage of questions about the product and advice about the verdict, especially if it has received any publicity. But a post that says “serving on jury duty and can’t make or hear any comments about it until it’s over” lets others know that the juror isn’t willing to discuss the case.

Ask jurors who are heavy users of social media how they feel about taking on a role that requires a degree of social isolation and electronic silence. That may cause some jurors a level of  “withdrawal” discomfort. Thinking this through ahead

of time and actively agreeing to accept this temporary change is likely to increase the juror’s ability to adjust. In rare cases, it may result in a candid admission that the juror simply cannot promise to make such an adjustment.13

Attorneys should consider having the same type of discussion with the jurors whose normal practice when encoun-tering new situations, new people, or new questions is to turn immediately to the Internet. The notion that these discussions will plant the idea to do Internet research has been proven false. Long before judicial admonitions were expanded to include Internet research, there were regular media reports about jurors going online.

The reflexive Internet researchers need to carefully consider how being a juror will require a change in their hab-its. If the juror would normally use the first break to get on his or her smart phone and google everyone involved in

the trial, ask the juror to talk about why this type of research, as well as any other outside inquiry, is not allowed before ask-ing whether he or she is willing to com-ply with that rule. Having a juror explain to peers why the rule is important will increase the likelihood of compliance and set the stage for enforcing the rules in the jury room if it becomes necessary to do so.

Juror Questions When the trial is being held in a jurisdic-tion that permits jurors to submit written questions to the judge, discussion of that procedure may reduce jurors’ tendency to assume that the lawyers will be hiding information. Of course, this assumes the attorney conducting the voir dire is will-ing to encourage jurors to ask questions. Lawyers who have not yet had experi-ence with this practice can take com-fort in the largely positive experiences reported in court-sponsored studies of jurors asking questions.14

The discomfort that some attorneys and judges still have with jurors asking questions is often rooted in a fear of los-ing control of the evidence. However, allowing and even encouraging jurors to ask their questions in the courtroom is the best way to maintain control over the evidence they consider, as it will reduce—if not eliminate—the jurors’ motivation to get their questions answered online.15

We have been allowing jurors to sub-mit written questions in mock trials for more than 30 years and often have found that they target undisputed facts or back-ground information that neither side thought was important precisely because it is undisputed or seemed so obvious that it didn’t need to be discussed. Knowing what the jurors are concerned about will help you determine when confusion or misinterpretation of the evidence may be threatening your verdict.

In jurisdictions where jurors are not allowed or not encouraged to ask

The deeply ingrained habit of resolving even minor factual disputes by getting instant answers online makes it difficult to accept

the prohibition on doing so during trial. When the judge says, ‘Don’t use the Internet,’ some jurors can’t believe the judge really means it.

44 November 2010 | | Trial

The Wired Juror, Unplugged

Tell jurors whyto help jurors understand why they must remain “offline” during the trial, the judge could supplement the standard jury instruction with language like this:

I want you to understand the reasons for these rules I have given you. I know that, for some of you, it requires a change in the way you are used to communicating and perhaps even in the way you are used to learning.

In court, the role of jurors is to make important decisions that have consequences for the parties, and the decisions must be based on the evidence that you hear in this courtroom, not on anything else. For those of you who are used to looking up information on the Internet, I want you to understand why you are not permitted to do any research on anything having to do with this trial or the parties here.

the evidence that is presented in court is evidence that can be tested; it can be shown to be right or wrong by one side or the other; it can be questioned; and it can be contradicted by other evidence. what you would read or hear

on your own could easily be wrong, out of date, or inappli-cable to this situation. It is for these reasons that the courts have always limited the evidence to what can be tested here in court.

the whole point of a trial is to ensure that the facts on which jurors base their decisions have been fully and carefully tested by opposing parties, so limiting the evidence you consider in reaching a verdict to what they have been allowed to test and debate in this courtroom is the only way you can protect their right to receive a fair trial.

Another fundamentally important fact for you to bear in mind is that the presentation of evidence and the debate that occurs here in the courtroom about the meaning of the evidence is a public process. this allows everyone in our community, as well as the parties in this case, to know the evidence on which your verdict was based. Using information gathered in secret and discussed only by the jurors behind closed doors undermines the public process and violates the rights of the parties.

I want to be clear that this rule prohibiting any independent research applies to every kind of research—including asking

questions, you can use pretrial research as a guide to anticipating jurors’ ques-tions. Encouraging mock jurors to ask questions just as they would in trial—in writing and at designated intervals—will help you craft your opening, structure tes-timony, and develop other tools such as visual aids and juror notebooks that will give your jurors the answers they might otherwise try to find on their own. Even in jurisdictions where juror questions are permitted, finding out what mock jurors want to know more about after listening to a summary of your case in jury research will allow you to integrate that informa-tion and increase your credibility in the jurors’ eyes.

We come away from every focus group and every mock trial with a list of issues that were important to the mock jurors but had been considered unimportant in developing the presentations. We also dis-cover where jurors are inclined to probe for details because they believe the attor-neys or witnesses have left out important information. For the questions that cannot or should not be answered, identifying the jurors’ uncertainties can help you develop

a strategy for reframing and reducing the significance of those issues.

The rapidly changing ways that people learn are clearly creating significant chal-lenges for judges and trial lawyers. But the ways in which we choose to respond could well improve jurors’ level of com-prehension and their overall experience in deciding cases. If lawyers attempt to engage jurors in a deeper understanding of the trial process and their role in it—and treat their curiosity and desire to make fully informed decisions with respect—jurors may be more motivated to play by the rules.

Susan Macpherson is a trial consultant with National Jury Project—Midwest in Minneapolis. Beth Bonora is a trial consultant and founder of Bonora D’Andrea in San Francisco, California.

Notes11. Thaddeus Hoffmeister, Jurors in the

Digital Age, Soc. Sci. Research Network (Aug. 30, 2010), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1668973; Jason Cato, Burgeoning Social Networking System Has Legal Community in a Twitter, Pittsburgh Trib. Rev. (Feb. 8, 2010), www.pittsburghlive.com/x/pittsburghtrib/news/pittsburgh/print_666211.html.

12. Cato, supra n. 1; John Browning, The

Many judges are open to experimenting with different approaches, now that it has become apparent that the threat of an

Internet-driven mistrial applies to every case.

Trial | | November 2010 45

someone a question related to the issues in the trial, discussing the trial with anyone outside of deliberations, and using electronic research tools as well as dictionaries, encyclopedias, and any other outside sources.

Judges should also provide a more complete explanation of the jurors’ role as judges of the facts. one way to do this is by pointing out that the judge and the jurors are required to follow the same rules:

you and I are both serving as judges in this case, and that means that we will follow the same rules. our only com-ments about the case must be made in the courtroom or in the jury room and addressed to the parties involved in this case. discussing it anywhere else invites outside influences that could affect my rulings or your view of the evidence.

to eliminate that problem, and to ensure that no one can suggest there may have been such a problem, I never make any comments about any aspect of a trial outside the courtroom and I never listen to or read any outsider’s comments about the trial—in the news media or in the social media online. I also do not communicate with anyone

involved in the case outside the courtroom. you must follow the same rules throughout the trial and

discuss the evidence only with your fellow jurors after you have heard all the evidence. Any other comments made to you or by you, either in person or online, can make it appear that you have not properly judged the case and could result in the need to repeat the entire trial.

you and I may have questions that the parties do not or cannot answer. But neither you nor I can go looking for the answers outside this courtroom. obtaining any outside information would deprive the parties and the public of the right to know all the evidence we considered in reaching our judgments.

By agreeing to follow these rules, you will fulfill your duty to properly judge this case, and you will join with the thousands of jurors in courtrooms across the country today who have made that same commitment to protect and preserve everyone’s right to a public trial. [where jurors are permitted to ask questions, an explanation of that process could be incorporated here.]—Susan Macpherson and Beth Bonora

Online Juror, 93 Judicature 231, 234 (May–June 2010); see Trisha Renaud, Watch Out for Blogging Jurors, Fulton Daily Rep. (Feb. 13, 2009).

13. John Schwartz, As Jurors Turn to Web, Mistrials Are Popping Up, N.Y. Times (Mar. 18, 2009), www.nytimes.com/ 2009/03/18/us/18juries.html?_r=2; Ellen Brickman et al., How Juror Internet Use Has Changed the American Jury Trial, 1 J. Ct. Innovation 287 (2008).

14. Cheryl Thomas, Are Juries Fair?, U.K. Ministry Just. Research Series viii (Feb. 2010), www.justice.gov.uk/ publications/docs/are-juries-fair-research.pdf.

15. Comm. on Ct. Admin. & Case Mgt., Jud. Conf. of U.S., Proposed Model Jury Instructions: The Use of Elec. Tech. to Conduct Research on or Commun. about a Case (Dec. 2009), www.uscourts.gov/uscourts/News/2010/docs/DIR10-018.pdf. A recent national survey revealed that 56 percent of judges now report routine admonishment on the use of electronic devices. New Media Comm., Conf. Ct. Pub. Information Officers, New Media and the Courts: The Current Status and a Look at the Future (Aug. 26, 2010), www.ccpio.org/documents/newmediaproject/New-Media-and-the-Courts-Report.pdf. One juror was ordered to write a five-page essay and pay a $250 fine. Ed White, Judge Punishes Michigan Juror for Facebook Post, Assoc. Press (Sept. 2, 2010).

16. See Reynaud, supra n. 2.

17. Comment by “Bobby123” on Eric Robinson, Courts in Colorado, Maryland, New Jersey, Florida Declare Mistrials after Juror Internet Research, Citizen Media Law Project Blog (Jan. 25, 2010), www.citmedialaw.org/blog/2010.

18. Twenty-seven percent of all American adults admit texting while driving, but among those age 18 to 33, 59 percent say they have done so. Mary Madden & Lee Rainie, Pew Internet & Am. Life Project, Adults and Cell Phone Distractions 6 (June 18, 2010), www.pewinternet.org/Press-Releases/2010/Adults-and-cell-phone-distractions.aspx.

19. See id. In a study of 360 Blackberry users, one-third of the respondents showed signs of addiction similar to those experienced by alcoholics; Nada Kakabadse et al., Addicted to Technology, Bus. Strategy Rev. 62–65 (Winter 2007).

10. Despite being caught and told to stop, five jurors continued their online discussion of former Baltimore Mayor Sheila Dixon’s trial on Facebook during the trial. Dixon Jurors Ignore Judge, Continue Facebook Post, 11 WBAL-TV (Jan. 4, 2010), www.wbaltv.com/r/22117438/detail.html; Dixon Jurors Must Testify about Facebook, UPI (Dec. 30, 2009), www.upi.com/Top_ News/US/ 2009/12/30/Dixon-jurors-must-testify-about-Facebook/UPI-75451262201840; Paul Sussman, 11 Curious Jurors Google a Mistrial, Conn. L. Trib. (Mar. 25, 2009); see also Wardlaw v. Md., 971 A.2d 331 (2009) (reversing conviction

after deliberating juror used Internet for research and discussed it during deliberations).

11. See Gregory R. Maio et al., Addressing Discrepancies Between Values and Behavior: The Motivating Effect of Reasons, 37 J. Experimental Soc. Psych. 104 (2001).

12. See Delia Cioffi & Randy Garner, On Doing the Decision: Effects of Active Versus Passive Choice on Commitment and Self-perception, 22 Personality & Soc. Psych. Bull 133 (1996).

13. Daniel A. Ross, Jurors’ Abuse of the Internet, N.Y.L.J. (Sept. 8, 2009) (during voir dire in one case, 6 to 10 potential jurors said they would not follow an instruction prohibiting Internet research).

14. Susan J. Macpherson & Elissa Krauss, Tools to Keep Jurors Engaged, Trial 32 (Mar. 2008), www.justice.org/cps/rde/xchg/justice/hs.xsl/666.htm; see also Nancy S. Marder, Answering Jurors’ Questions: Next Steps in Illinois, 41 Loy. U. Chi. L.J. 727–52 (2010).

15. Caren M. Morrison, Jury 2.0, Soc. Sci. Research Network (Aug. 31, 2010), http://papers.ssrn.com/sol3/papers.cfm? abstract_id=1669637. As Morrison points out, jurors are often driven to the Internet by the lack of clear definitions in jury instructions. A recent Florida criminal conviction was overturned because the foreman used his iPhone to look up the definition of “prudence.” Tapanes v. States, 2010 WL 3488709 at *2 (Fla. App. Sept. 8, 2010).