[1] the threat of jurors being biased by – or improperly sharing – internet information, has become a greater concern. Over the past several years, the legal community has been buzzing about Google mistrials and juror internet misconduct – but one problem remains – lots of hype and not a lot of data.

In a prior study,[2] jurors in 15 criminal and civil trials completed questionnaires distributed by the judge after the conclusion of the trial. These questionnaires assessed jurors’ use of new media during the trials, as well as the “old-fashioned forms of misconduct,” such as discussions about the case with family and friends and discussions with fellow jurors prior to deliberations. Results showed that only a very small number of jurors admitted to engaging in the old-fashioned forms of misconduct (6% discussed the case with family and friends; 10% discussed the case with fellow jurors prior to deliberations) and none reported using new media during the trial.

One can imagine, however, that jurors were likely hesitant to admit in a courtroom that they had engaged in misconduct.

So we wondered – how can we get to the bottom of this? Is it possible to get jurors to admit to something they know was wrong?

We learned that it is indeed possible! Using an anonymous online survey, we investigated whether jurors had engaged in four types of misconduct: 1) online research about the case/parties involved; 2) posting about the case on social media; 3) discussing the case with family and friends while the trial was ongoing; and 4) discussing the case with other jurors before deliberations began.

 

 

More than one half of the respondents said they had done online research about the case during the trial. Judicial instructions did not seem to prevent this behavior: 47% of those who reported having been instructed not to do online research[3] (143 of 305), still admitted to it.

The most commonly searched topic was the law, followed by the judge and news articles about the case. Note: respondents were instructed to “check all that apply”

 

Most respondents did research because they were curious and because they wanted to understand the law better and make an informed decision. Note: respondents were instructed to “check all that apply”

 

1. Respondents were asked: While the trial or deliberations were ongoing, did you ever discuss the case with family/friends?
2. Just under half of the respondents reported discussing the case with family/friends while the trial was ongoing. And, 36% of those who reported being instructed not to do discuss the case with family/friends[4] ( 126 of 349), still admitted to it.

1. Respondents were asked: During the trial, but before deliberations began, did you ever discuss the case informally with the other jurors?
2. Over a third of respondents reported discussing the case informally with the other jurors before deliberations began. And, 33% of those who were instructed not to discuss the case with jurors before deliberations[5] (103 of 312), still admitted to it.

1. Respondents were asked: Over the course of the trial, did you ever post anything about the case on social media (e.g., Facebook, Twitter, Instagram, Linkedin, Snapchat, Reddit, etc.)?
2. About a quarter of respondents reported posting about the case on social media. And, 31% of those who reported having been instructed not to post on social media[6] (97 of 315), still admitted to it.

 

We also wanted to know whether the jurors who engage in traditional misconduct are the same jurors who engage in online misconduct. As it turns out – they are. Nearly three-quarters (70%) of those who engaged in online misconduct also engaged in traditional misconduct. In comparison, only 30% of those who did not engage in online misconduct engaged in traditional misconduct (p < .001).

 

 

This research is the first of its kind. By using an anonymous online survey, we were able to increase the likelihood that respondents would disclose misconduct. Results are consistent with what we hypothesized – even when they are instructed not to, jurors are still engaging in misconduct during trial.

Attorneys: Consider how information that can be accessed online by jurors impacts your trial strategy even when it is not introduced during the trial itself and adjust your strategy accordingly. Assume that jurors are likely to access that information, share it with other jurors, and have it in some way impact their decision-making.According to this research, those who are most likely to engage in misconduct are younger non-Whites with College degrees. Also, males were more likely than females to do online research and discuss the case with family and friends.

Why are they doing it? Because they are not understanding the law as it is explained to them in court! More than one half of those who did online research (56%) said that they were researching about the law. When asked why they did online research, curiosity (57%) and wanting to better understand the law (49%) were the most common reasons given.

Has the advent of new media increased juror misconduct? Not necessarily. We expected that since so many people are addicted to their phones and computers, the likelihood that jurors would engage in misconduct may be higher than in the past. These results, however, suggest that may not be the case. Rule-breakers are rule-breakers – those who engage in misconduct are doing so by whatever means possible. It’s not the advent of the internet and new media that lead jurors to engage in misconduct – it’s their thirst for additional information.

How do we quench that thirst? Perhaps we should think about whether there are ways to give jurors more instruction on the law at an earlier stage in the trial.  When jurors are not given instructions on the law or definitions of the elements of the alleged crimes until the very end of the trial, it is no wonder they feel as though they need to go elsewhere to investigate for themselves.

 

 

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