Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm:

The idea of a courtroom trial is that it is a sealed system. The fact-finders arrive in a neutral state of mind, they receive and review only what is vetted and presented in court, and then they deliberate to a verdict without any outside influence. We know that this sealed system is an ideal. The system leaks though. It leaks because, armed with human attitudes and life experiences, jurors don’t actually arrive in a neutral state. But this system also leaks because it is easier than ever for jurors to get and to give information through other sources. In an age of Internet ubiquity and lives lived on social media, instead of a sealed system, we potentially have an open and expanding web.

So how big is the problem and what’s to be done about it? A new research article written by scholars from the School of Law at the University of Dayton (Hoffmeister & Watts, 2018) provides a concise summary of the state of the research. Reviewing six scholarly articles published by authors inside and outside of the academy, they highlight what is currently known as well as the remaining questions to be explored. The questions of the extent and the solutions to jurors accessing or sharing information they are not supposed to access or share are practical questions, relevant to courts, attorneys, and trial consultants. In looking at the current article, five conclusions stand out reflecting the current state of our knowledge.

1. We’re (Still) in New Territory

The Internet and the idea of social media is, of course, not entirely new. But the authors note that the levels of adaptation to these realities still vary widely across the American litigation landscape. Some judges expect social media research on jurors and some judges forbid it. Some attorneys will always review juror online activity before and during trial while others see it as an unusual or troubling tactic. As the authors note, it is a “sea change unlike any it has ever seen before,” and the norms for dealing with it in the legal community have not yet developed. “It is safe to say,” they note, “that the Internet has  become a vital part of trial by jury, though the ethical implications of wielding its power inside and outside the courtroom have yet to be fully fleshed out and addressed.”

2. It’s Tough to Know the Extent of the Misconduct

We have all seen the examples of mistrials caused by jurors looking up a bit of information or by tweeting and posting about their experience. These examples are on the rise, the authors note, but a clear answer on exactly how often it occurs has been hard to come by. One anonymous online survey that I’ve written about earlier showed the surprising result that a majority, 56 percent, admitted that they conducted online research on issues relating to their trial while serving as a juror. The published studies relying on reports by jurors or court personnel, however, have been more modest, ranging from seven to ten percent. That is still a substantial number. All estimates, however, need to be taken with a grain of salt because the same social desirability bias that limits the reliability of answers in voir dire also limits ability to collect data on this question of whether jurors are violating the rules.

3. It’s Critical to Address the Motives Behind Online Activity

Why do jurors go online? The authors note that this activity may be something of a throwback: “In some ways, use of the Internet by juries to discover information about a case is simply a return to the historic role of jurors as active, self-informing participants in the process, rather than passive fact-finders.” When it comes to information, even under the rules, jurors are best thought of as hunters rather than grazers, as wanting to be “information wolves” not sheep. For that reason, several of the research studies reviewed in the article recommend adopting reforms that help jurors participate in an active manner — by taking notes, asking questions of witnesses, or discussing the evidence prior to deliberations, for example. These kinds of activities, within the rules, can drain the motivation to be active outside of the rules.

4. Instructions Matter

The most common recommendation, and the one discussed in all of the articles reviewed, is improved instructions. Jurors who are used to carrying the Internet in their pockets and broadcasting many of their daily events need a concrete understanding of what isn’t allowed in a trial context. As important, they need to understand why the rules are as they are. The best preventative, based on the research, seems to be clear instructions. Courts, however, need to continue to develop instructions that contain reasons, embrace plain English, and account for the continuing development of technology.

4. Online Use Matters Even If Jurors Follow the Instructions

But, even when effective, court instructions don’t remove the influence of social media. It has become more and more clear that the way people receive news now, through self-selected and ideologically-sorted media, or through algorithm-generated news feeds, creates a bubble. Instead of receiving our news, as prior generations did, through common and relatively objective sources of information, citizens are now instead fed an information diet that’s strongly responsive to our current beliefs and preferences. This highlights the reasons for social media analysis. The authors note that, while online patterns have increased the risks of misconduct, they have also revolutionized the way jury research is conducted, leading to better information and fewer assumptions and stereotypes.

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Other Posts on Juror Online Activity: 

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Hoffmeister, T., & Watts, A. C. (2018). Social media, the internet, and trial by jury. Annual Review of Law and Social Science, 14, 259-270.

Image credit: 123rf.com, used under license, edited