Google, Gadgets, and Guilt: Juror Misconduct in the Digital Age

Abstract

Improper use of new technology by jurors inside and outside the courtroom has become so pervasive that commentators have coined new phrases to describe it: “Google Mistrials,” the “Twitter Effect,” and “Internet-Tainted Jurors.” Yet, despite the attention garnered, few legal scholars, to date, have examined this area in-depth. The articles addressing this topic primarily focus on the benefits of technology and how to harness it to assist juror comprehension. This dearth of legal scholarship may be due in large part to the fact that the Digital Age is fairly new and still evolving and juror misconduct is historically an under-examined area of the law. This article attempts to fill the current void by analyzing the detrimental impact of the Digital Age on sitting jurors and how it might be lessened. While many of the issues examined in this article apply equally to civil cases, the primary focus of this article is on jurors deciding criminal cases.

This article begins, in Part I, by discussing the influence of the Digital Age on juror research and communications. Here, the article examines the traditional reasons for juror research. The article then discusses how the Information Age has created new rationales for jury research while simultaneously affording jurors greater opportunities to conduct such research. This section also examines how new technology has altered juror to juror communications and juror to non-juror communications. This section concludes by analyzing the rationales for why jurors violate court rules about discussing the case.

In Part II, the article analyzes possible steps to limit the negative impact of new technology on juror research and communications. While no single solution or panacea exists for these problems, this article focuses on several reform measures that could address and possibly reduce the detrimental effects of the Digital Age on jurors. The four remedies discussed in this article are: (1) penalizing jurors; (2) investigating jurors; (3) improving juror instructions; and (4) allowing jurors to ask questions. During the discussion on jury instructions, this article analyzes two sets of jury instructions to see how well they adhere to the suggested changes proposed by this article. This is followed by a draft model jury instruction.

As part of the research for this article, this author conducted one of the first surveys (“Jury Survey”) on jury service in the Digital Age. Jury Surveys went to federal judges, prosecutors, and public defenders throughout the country. The questions in the survey focused primarily on juror research but briefly touched upon juror communications. Although the responses were anonymous, the Jury Surveys were written in such a way as to distinguish responses from judges and practitioners. Of the responses received, approximately half were from judges and the other half were from either a federal public defender or prosecutor.

Keywords: Internet, Jurors, Criminal