The Internet and sites such as Twitter offer many opportunities to create more transparency in the justice system, beyond reporting by the mainstream media. The University of Montana's blog / tweet project on the W.R. Grace trial is just one intriguing current example. More on that fascinating endeavor here.
But the increasing mobility of Internet access has other unintended consequences that cross into the E-Discovery arena. The New York Times online posted a fascinating article (note: New York Times login required)highlighting the sharp increase in the number of jurors who violate the court's routine admonition not to conduct any outside research on the case. A growing number of jurors are conducting Internet searches on their BlackBerrys or iPhones or sending "tweets" or blogging about the trial via the Internet - sometimes even while they are hearing evidence at trial.
This juror misconduct ranges from a juror "Googling" information regarding factual issues in the case, to a juror who posted periodic updates on the conduct of the trial to Twitter and Facebook. And it's not just an isolated phenomenon. In one case the New York Times article discusses, a juror in a federal criminal prosecution admitted that he had conducted outside research on the Internet. Thinking this an aberration, and an issue that could be resolved simply by removing the offending juror from the jury, the trial judge questioned the other jurors on the panel. Turns out eight other jurors had been doing the same thing! The court had no other option but to declare a mistrial.
Trial judges have routinely instructed jurors for years not to conduct outside research. And, in the past several years, judges have modified those instructions to include admonitions not to conduct any research via the Internet. Nonetheless, the number of jurors violating those instructions - and causing mistrials or ripe issues for appeal - has grown as the ease and means of accessing information have grown.
Why is it a problem? Let jurors do outside research and you might as well throw the Constitution and the Rules of Evidence out the window. The exclusionary rule would have no meaning if jurors could just Google newspaper accounts of the investigation and perhaps even key documents, or read the notoriously easily manipulated articles on Wikipedia.
What is a trial lawyer to do? We certainly don't want all juries sequestered, with their iPhones, BlackBerrys and laptops locked away in the custody of the court, for the duration of trial. Some less-drastic alternatives:
- Ask the trial judge to expand her boilerplate admonition to incorporate an explicit explanation of the policies behind the rule and the consequences of violating the rule. Be prepared with your own draft admonition and submit it with your jury instructions.
- To the extent that the judge or your jurisdiction permits you to do so, use voir dire to (1) educate the panel regarding why they shouldn't do outside research, including Internet research, and (2) enlist the jurors in helping the court enforce that restriction.
- In Arizona, where I currently practice, jurors can submit questions to be asked of a given witness. Sometimes those questions may clue you in that jurors are doing improper outside research. Be alert to the possibility, and be prepared to ask the court to inquire.
- Bone up on your e-discovery law, and be prepared to subpoena text message records, laptop hard drives and other ESI if you suspect juror misconduct created an appealable issue.
Finally, don't ignore the upsides and opportunities our wired age provides the diligent litigator. As the NYT article notes, many trial attorneys now conduct their own Internet research on prospective jurors. Look at those Facebook and MySpace pages. Read those blogs, tweets, and websites.