The basic problem: a jury trial is conducted in accord with the applicable rules of evidence, court rules, and statutes. When jurors log onto the Internet to obtain additional information [about the parties to the suit, the lawyers, or the judge], or to comment, they are exposed to data and opinion beyond the scope of the applicable rules. This can and does affect the outcome of a trial.
The case highlighted in the WSJ was a 2010 murder conviction overturned, in part, because a juror ignored the admonishment of the judge, and tweeted the jury's verdict to the public prior to it being read in court. Now, the defendant will stand trial again this summer.
In other courtrooms, despite explicit instruction from the trial judge that jurors must not discuss the case among themselves until the proofs are complete and they are formally deliberating, jurors have been known to exchange contacts and begin texting one another.
A Florida juror recently spent 3-days in jail for "friending" a defendant on Facebook so he could either get a date with the woman, or get out of jury duty.
A case in the California appellate courts hinges on whether a juror in a case must now disclose his social media activity to defense attorneys in a gang-beating case so the attorneys can determine whether to challenge their client's conviction based on the juror's social media activity.
Judges have a range of options when juror misconduct mars an ongoing trial. Those options include: punishing the juror for contempt (i.e. jail or a fine); removing the objectionable person from the jury (there is always at least one alternate); and declaring a mistrial and starting the trial over.
The WSJ article cites to a potential test case: the Drew Peterson case in Illinois. In that case, defense attorney Joel Brodsky is considering ways to prevent jurors from acquiring information about the case outside the courtroom. One idea under consideration is for the jurors to disclose their IP addresses and social media handles so they can be monitored. Along these lines, technicians are suggesting the installation of cookies so that if a juror accesses the Internet about the case in any way, the juror's foray is reported to the trial judge.
Can the centuries-old jury trial system withstand such developments? Is there any effective way to prevent seated jurors from accessing the media about the case to which they have been entrusted?
As litigators, we here at the Law Blogger realize this truly is a "Brave New World". When you ramp-up for a trial, and focus on the scope of the evidentiary issues in the case, it is very unsettling to think that, with a few points and clicks, a juror can unearth a veritable treasure trove of [inadmissible] information about you, your client, or your case.
In almost every case, such additional information will sway the juror's opinion and somehow affect the outcome. Turning a trial into a popularity contest is not a fair way to administer justice.
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