JURY RESEARCH SERVICES DIVISION YOU, the JURY, and the INTERNET by Jeffrey Frederick

JURY RESEARCH SERVICES DIVISION How we can help you: We provide a broad range of services to help our clients meet the challenges of The Jury Research Services Division of the National today’s jury trials. Legal Research Group, Inc., offers quality jury research PRETRIAL ASSISTANCE nationwide to attorneys. Since 1982, we have assisted civil Surveys: We use juror surveys to help you and criminal defendants, plaintiffs, and federal, state, and understand the trial jurisdiction. local prosecutors in hundreds of cases in a wide variety of • Juror profile surveys • Change of venue surveys contexts. The Director of our division, Jeffrey Frederick, Ph.D., nationally renowned trial consultant and author, has been Small Group Research: We evaluate cases through our small group research studies. assisting attorneys in jury trials since 1975. • Focus groups • Trial simulations or mock trials

Case Preparation: We assist in case How to contact us: preparation and persuasion. E-mail [email protected] • Witness preparation Phone 800-727-6574 • Physical evidence evaluation • Opening statement review Fax 434-817-6570 Web www.nlrg.com TRIAL ASSISTANCE Address PO Box 7187, Charlottesville, VA 22906 Jury Selection: We assist in many aspects of jury selection. • Voir dire development • Juror questionnaire development • In-court assistance in evaluating potential jurors’ verbal and nonverbal behavior

Trial Observation: We evaluate how jurors are reacting to the case through observing jurors during the course of trial, thus, improving case presentation and closing arguments.

POST-TRIAL ASSISTANCE Post-Trial Interviews: Interviews of jurors after trial, when allowed, help you bring into focus how the jury made its decision and what can be done to maximize your effectiveness in future trials. YOU, THE JURY, AND THE INTERNET by Jeffrey T. Frederick, Jury Research Services ([email protected])

Jeffrey T. Frederick is the director of the Jury Research Services Division of the National Legal Research Group, Inc., in Charlottesville, Virginia. He can be reached at [email protected]. The author would like to acknowledge Trisha Renaud for her diligent research on the ASTCNET Listserv, which provided some of the sources cited in this article.

In March 2009, federal judge William Zloch received a note from a juror reporting that another juror had conducted research on the Internet. With hopes of minimizing the impact on deliberations, the judge questioned the offending juror and discovered the research included evidence excluded from the trial. Questioning of the remaining jurors revealed that eight additional jurors had conducted Internet research, including Google searches on the parties, accessing news reports and excluded evidence, and searching in Wikipedia for relevant legal and technical definitions. When queried about these actions, one of these jurors responded, "Well, I was curious."

The upshot? A mistrial.1

In a similar scenario, a sitting juror researched the criminal defendant online, discovered the defendant's prior sex offender conviction, and subsequently shared this information with fellow jurors.

The result this time? Another mistrial, with the curious juror eventually being held in contempt and ordered to pay the costs of two days of deliberations.2

An even more appalling Internet twist involved an English juror sitting in a criminal trial during November 2008. She was undecided on how to vote, so she posted details of the case on her Facebook page with the request, "I don't know which way to go, so I'm holding a poll." An anonymous tip alerted the judge to this activity and to the fact that an undisclosed number of people had responded, some with guilty verdicts.

This time the consequence was that the juror was dismissed.3

The increasingly prominent role the Internet plays in American society, highlighted in the sidebar on page 17, poses a potential threat to the integrity of jury trials from the influence of outside information, both before and during trials. This results from juror information

The Threat of Outside Information

In any trial, the possibility that jurors will obtain information outside the courtroom always exists, either before or during trial. The effects of pretrial publicity have been the topic of extensive research,4 indicating that such publicity has an influence. Biasing effects oftentimes are unrecognized by the recipients5 and, further, are unresponsive to traditional judicial instruction remedies.6

As the Internet has gained widespread acceptance as a source for news and information, it has become a serious contender for concern regarding juror exposure to case- related information and opinions. Information relating to a case, either indirectly or directly, can reach jurors via a variety of Internet avenues: computers, cell phones, personal digital assistants, and the like. Once on the Internet, jurors may encounter case-relevant information from commercial and news media–related Web sites, customized home pages, or via searches for desired information. The Internet giant Google has turned searching for information and content into a multibillion-dollar business, even gaining entry into our culture—and dictionaries—as the verb for Internet searching itself, i.e., "to google." While the overall scope of the problem of jurors researching case-related issues on the Internet is unknown, anecdotal evidence has been surfacing with increasing frequency that jurors regularly turn to the Internet for answers.

Consider this: In a shaking baby death case that included contested testimony over the drug Paxil, a guilty verdict was reversed on appeal because of the subsequent discovery of a juror who used the Internet to conduct research on Paxil and then shared this research with the jury.7

It is all so simple. Jurors can type in words or phrases relevant to the case—parties' names or events—and search engine can return "hits" ranging from a very few to thousands or even millions. For example, a Google search of "Khalid Sheikh Mohammed," the alleged mastermind of the September 11 terrorist attacks, produced 1,330,000 hits, including references to his upcoming trial, waterboarding, his confession, and a highly detailed Wikipedia article. The same search of blogs and YouTube by Google revealed 177,415 hits for blogs and 1,360 hits for YouTube.10 Further, jurors can search online reference sources— dictionaries and encyclopedias—for definitions of critical terms or concepts.

Websites as litigation public relations. A new trend in litigation is to use Web sites as sources for partisan advocacy. Defendants in criminal trials—e.g., Martha Stewart, Michael Jackson, Richard Scrushy (former CEO of HealthSouth), and attorney Geoffrey Fieger—had Web sites containing material that supported their point of view.11 In one civil case, Chevron was ordered to take down its paid Google sponsor link that offered its account of a shooting incident in Nigeria that was the subject of a federal lawsuit.12 In another civil case, a MySpace page was devoted to Hammerheads, a local bar in Virginia Beach, Virginia, and a plaintiff in a violation of civil rights case against the City of Virginia Beach. It included YouTube videos concerning the plaintiff's allegations, e.g., police on horseback dispersing crowds and statements by a city official.13

Blogging and the blogging juror. Another source of information to which jurors can become exposed is online journals and commentary in the form of blogs and social networking Web sites such as MySpace, Facebook, LinkedIn.com, or Twitter. (Twitter is the most popular "microblogging" service, which allows users to post short—140 characters maximum—messages or "tweets" that can be read and responded to by anyone logged onto Twitter.com.) Jurors may create blogs, follow certain blogs, or participate in commentary on blogs (or other Web sites). While not as prevalent as searches or news-related uses of the Internet, jurors do read blogs and online journals. Jurors viewing blogs addressing case-related information would likely violate the standard judge's instruction to avoid exposure to information on the case outside of the courtroom. Depending on the circumstances, such activities may result in judicial action, such as dismissing the juror or declaring a mistrial.

Given the potential for jurors to communicate with each other electronically and the ability for others to post messages in response to juror blogs or tweets addressing a case on which jurors are sitting, these activities may constitute inappropriate contact with jurors or, in the case of interjuror communications, unauthorized deliberations before actual deliberations. Even in those states that allow predeliberation discussions, such activity violates the underlying conditions for predeliberations, i.e., that all jurors are present during any predeliberations. Further complicating this problem is the fact that those persons engaging in these activities do not necessarily use their real names; rather, they often use pseudo names, referred to as screen or user names. Therefore, identifying the true identities of bloggers and members of social networks may be difficult, if not impossible, to discern.

Recommendations. Given the potential scope of Internet usage by jurors and the potential problems that can arise, attorneys can take several steps to minimize and mitigate these problems.18

First, know what is out there. Educate yourself as to what is available on the Internet as it relates to your case. Conduct your own searches using party names, critical events, and key terms or phrases to see what you can find—and what jurors can find.19 Knowledge gained via these online searches may well lead to more effective questions for voir dire and juror questionnaires, where critical sources could be addressed with jurors, or recognized if raised in answers by jurors.

Second, seek explicit and effective juror instructions. While knowing what is available on the Internet is important, attorneys should request specific, concrete, and repeated instructions concerning appropriate and inappropriate Internet usage. Jurors often view Internet searches, blogging, and the posting of comments as somehow different from the traditional activities banned by the court.20 As such, explicit description of what is allowed and not allowed is needed (e.g., no Internet searches, viewing of case-related media content, text messages concerning the case, e-mail messages concerning the case, blogging, and tweeting). Attorneys may have to convince judges of the need to be explicit about the implications of jurors' posting comments on other Web sites or blogs, and the capability of others to post comments on a juror's blog, as potentially constituting banned contact and exposure to extrajudicial information about the case or predeliberation discussion of the case. In fact, it

Third, use voir dire and juror questionnaires effectively. To determine the jurors' footprint on the Internet, and thus the likelihood of uncovering information about jurors on the Internet, lawyers should ascertain through voir dire or, ideally, through juror questionnaires the jurors' Internet usage and habits. It is not only important to determine whether jurors use search engines but also whether they use sources that give them a presence on the Internet. Such sources would include social networking tools or Web sites. In addition, determining jurors' use of Web sites related to news (local, regional, or national), politics (e.g., TheHuffingtonPost.com or townhall.com), or interests (e.g., social issues or environmental issues) could well prove valuable. Asking jurors whether they have posted comments on any Web site or blogs is important—or whether they have written letters to the editor on paper or online,21 or signed any online petitions. Finally, since screen or user names associated with social networking Web sites, blogs, and comments posted on Web sites often do not correspond to jurors' actual full names, asking jurors for their screen name—if allowed by judges—would be useful to facilitate such searches. For example, in a recent federal trial in Detroit, Michigan, approximately 11 percent of potential jurors had used social networking Web sites. None had Internet identities matching their actual full names.

Finally, monitor juror Web activity during trial. If possible, attorneys should have someone monitor potential Web activity of jurors during the course of a trial. If jurors have blogs, monitoring them is necessary.22 If jurors' screen or user names are available, conduct daily searches of those names. In addition, searches based on the parties' or witnesses' names or key phrases may also identify content posted by jurors. While such searches may often prove fruitless, identifying this activity is important enough to warrant the expenditure of resources. Finally, regarding discovery of banned juror activity, reporting it as soon as possible after detection is critical since the court has a greater ability to address this issue and intervene during the trial or, to a lesser degree, during deliberations. Once a verdict is returned, the remedies available to judges are greatly reduced.23

Gathering Information on Potential Jurors

The Internet is also a source for information on potential jurors for jury selection purposes. Information gained from the Internet should supplement information gained through voir dire and juror questionnaires. While Internet information can be useful, it is not as broadly based, litigation specific, or as systematically available from all jurors as is information collected in the

Juror postings. As mentioned earlier, jurors may post comments once they became part of the trial venire. However, postings by jurors before they become part of the trial venire can be relevant to jury selection as well. These may include opinions expressed in blogs and information posted on social networking sites, Twitter, and even YouTube. In addition, online newspapers allow readers to comment on articles and, in many cases, submit letters to the editor. All of these sources could provide useful information about jurors, depending on the information and opinions revealed.

Public records. Information on jurors also is available through public records posted on the Internet. Public records cover a variety of types of information, including property tax records, civil and criminal records, and motor vehicle records. They can include minutes of local government meetings and petitions presented to governmental entities in some localities. Political donations to candidates, both nationally25 and locally,26 are available online, along with lists of donors to referenda or propositions. For example, California posted its databank of donors who supported and opposed Proposition 8 on the 2008 state ballot.27 As of April 2009, the list contained 143,879 entries. Additional public records are becoming available and are accessible—oftentimes for a fee—from Web sites specializing in collecting nationwide public records data or from certain government Web sites.

News/media stories. A third source of information comes from the Internet news media. Whether it is current or archived news stories, political endorsements, social issue–related advertising or acknowledgments, or letters to the editor, jurors may appear on media Web sites, particularly those with significant local coverage. In past cases, I have found news reports mentioning the names of potential jurors, including one juror listed as a winner of a sizable lottery prize and another who had been involved in a traffic accident similar to the one at issue in the case.

Other pertinent listings. Many other types of Web sites flourish on the Internet. They may support certain political or social causes. Some may post newsletters and/or meeting agendas that list members' names, either in general or associated with offices held in the organization.28 Churches and other religious organizations post newsletters and other information about their activities, which oftentimes include members' names. Online petitions circulating through e-mail can be found on various Web sites. There are even sites devoted solely to online petitions.29 Online guest books have been set up at funeral home Web sites,

Recommendations. Consider the points listed below when using the Internet to uncover information about potential jurors.

Again, know what is out there. While the use of search engines and modified search engines that track blogs is similar to what was discussed in the previous recommendations, one must recognize the differences in the types of information needed and the tools available to secure it. Instead of searching for information jurors might encounter or any evidence of blogging on their parts during trial, some of the information desired will likely be on Web sites that require individual searches conducted on the Web site itself, e.g., membership lists, list of supporters, or public record searches. In view of this more individualized searching process, identifying and developing a list of Web sites before trial that may provide desired information is necessary to conduct more efficient searches.

As noted earlier, ask about Internet usage. Jurors should be asked about their Internet usage and habits, their use of search tools, participation in social networking Web sites, exposure to blogging (either creating blogs or reading the blogs of others), use of microblogging services, and exposure to news media content on the Internet. Since jurors' blogging or social networking identities may not correspond to true names, it may be necessary to seek the screen names used by potential jurors.

Lastly, a caution: Do not "friend." With some Web sites, particularly certain social networking sites, individuals can restrict certain information (e.g., comments or pictures) to viewing from "friends." Friending requires that the Web site page owner explicitly allow a certain screen name to gain access to certain information, usually at the request of the interested party. Given the laws on direct contact with potential or sitting jurors, making such a friend request could be viewed as inappropriate, if not illegal, particularly if such friending leads to the posting of comments between the parties.

Conclusion

Using the Internet provides unique challenges in jury trials. The Internet provides jurors with greater access to information through search engines, media sources, party-oriented Web sites, and blogs. Each of these may pose a threat to juror impartiality. Attorneys and judges need to recognize that many jurors view such tools as being qualitatively different from the traditional research tools and media sources forbidden by the courts. Hence, courts, with the help of

Notes 1. See John Schwartz, As Jurors Turn to Web, Mistrials Are Popping Up, N.Y. TIMES, Mar. 17, 2009, www.nytimes.com/2009/03/18/us/18juries.html. 2. See Annmarie Timmins, Juror Becomes Defendant: Research of Sex Ofender Brings Contempt Charges, CONCORD MONITOR, Mar. 26, 2009, www.concordmonitor.com/apps/pbcs.dll/article?AID=/20090326/FRONTPAGE/903260301. 3. See Urmee Khan, Juror Dismissed from a Trial After Using Facebook to Help Make a Decision, TELEGRAPH, Nov. 24, 2008, www.telegraph.co.uk/news/newstopics/lawreports/3510926/Juror-dismissedfrom-a-trial-after- using-Facebook-to-help-make-a-decision.html. 4. See, e.g., H. Bornstein et al., Pretrial Publicity and Civil Cases: A Two-Way Street? 26 L. & HUM. BEHAV. 3 (2002); JEFFREY T. FREDERICK, MASTERING VOIR DIRE AND JURY SELECTION: GAIN AN EDGE IN QUESTIONING AND SELECTING YOUR JURY (2d ed. 2005); JEFFREY T. FREDERICK, THE PSYCHOLOGY OF THE AMERICAN JURY (1987); Neil Vidmar, Case Studies of Pre- and Midtrial Prejudice in Criminal and Civil Litigation, 26 L. & HUM. BEHAV. 19 (2002). 5. See S. Sue, R.E. Smith & G. Pedroza, Authoritarianism, Pretrial Publicity and Awareness of Bias in Simulated Jurors, 37 PSYCHOL. REP. 1299 (1975). 6. See Vidmar, supra note 4. 7. See Bennett L. Gersham, Contaminating the Verdict: The Problem of Juror Misconduct, 50 S.D. L. REV. 322 (2005). 8. See K.C. Howard, Sex Abuse Case: Juror Misconduct Cited, LAS VEGAS REV.-J., Dec. 1, 2007, www.lvrj.com/news/11993056.html. 9. See Barbara Vitello, Dozens Questioned for Brown's Murder Jury, But None Added, DAILY HERALD, Aug. 12, 2009, www.dailyherald.com/story/?id=313473. 10. These searches were made on November 18, 2009. 11. Mark Glaser, Michael Jackson, Martha Stewart Take Cases Straight to the Net, USC ANNENBERG ONLINE JOURNALISM REV., Dec. 2, 2003, www.ojr.org/ojr/glaser/1070405993.php, Dec. 2, 2003. 12. See Jeffrey Cane, Daily Brief: Gag Orders in the Age of Google, PORTFOLIO.COM, Oct. 28, 2008, www.portfolio.com/views/blogs/daily-brief/2008/10/28/gag-orders-in-the-age- of-google. 13. The information can be found under the section heading of "The Block" on the

Published in The Brief, Volume 39, Number 2, Winter 2010. ©2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. bar's MySpace page, which can be found at www.myspace.com/clubhammerheads. 14. For example, a search of Twitter for the phrase "jury duty" on May 11, 2009, yielded 112 tweets for a one-hour period concerning jury duty, including the following: "sitting at stupid jury duty . . . pissed off . . . tired . . . i dont understand why people who have jobs and pay their taxes have to do this crap" and "‘God is [sic] His gracious kindness declares us not guilty.' I begin this wk with Rom 3 & jury duty." 15. For example, a foreman of a jury was held in contempt for juror misconduct for posting comments about the evidence and testimony on his blog, entitled "The Misanthrope," during the trial on which he was serving. See Raul Hernandez, Juror Held in Contempt for Blog of Murder Trial, VENTURA COUNTY STAR, Jan. 23, 2008, www.venturacountystar.com/news/2008/jan/23/juror-held-in-contempt-for-blog-of- murdertrial. In a separate trial, a juror posted the following comment on his Facebook page, "jury duty; day one complete," to which an acquaintance posted the following response, "Guilty, next." During a hearing on the matter, the court accepted the juror's assertions of impartiality and admonished him not to visit his Facebook page until the trial was completed. Lydia X. McCoy, Starks Juror Admonished, EVANSVILLE COURIER & PRESS, Oct. 10, 2009, www.courierpress.com/news/2009/oct/10/starks-juror-admonished. 16. Two recent trials have resulted in concerns and motions for mistrials because of jurors posting comments about the trial before a verdict was returned. One criminal trial resulted in the conviction of former Pennsylvania Senator Vincent Fumo, with a juror posting, "Stay tuned for a big announcement on Monday everyone!" on his Facebook page on the Friday before the verdict was announced. Shannon P. Duffy, Federal Jury Finds Former Pa. State Sen. Vincent Fumo Guilty on All Counts, LEGAL INTELLIGENCER, Mar. 16, 2009, www.law.com/jsp/article.jsp?id=1202429098920&pos=ataglance. A recent civil trial resulted in a $12.6 million award to investors in a fraud case, with a juror tweeting on what he was doing that day: "Oh, nothing really, I just gave away TWELVE MILLION DOLLARS of somebody else's money." Associated Press, Appeal Says Juror Sent "Tweets" During $12.6M Case, ABC News, Mar. 13, 2009, www.abcnews.go.com/Technology/wireStory?id=7077409. 17. See Kathleen Kerr, Attorneys: Juror Tried to "Friend" Witness on Facebook, NEWSDAY, Apr. 7, 2009, www.newsday.com/long-island/crime/attorneys-juror-tried-to-friend- witness-on-facebook-1.1217767. 18. See Ellen Brickman, Julie Blackman, Roy Futterman & Jed Dinnerstein, How Juror Internet Use Has Changed the American Jury Trial, 1 J. CT. INNOVATION 287 (2008) (discussing the impact of Internet usage on jury issues). 19. Such searches could uncover media outlets and/or Web sites advocating positions concerning a case. For example, a morning radio show entitled "Taint the Carona Jury Pool" was a regular feature of KFI-AM in Los Angeles and encouraged potential jurors get on the jury and "vote guilty." See Ashley Surdin, Radio Hosts Gleefully Try to Taint Jurors, WASH.

Published in The Brief, Volume 39, Number 2, Winter 2010. ©2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. POST, May 17, 2008, www.washingtonpost.com/wpdyn/content/article/2008/05/16/AR2008051603384.html. In addition, you may avoid self-inflicted wounds should your clients' or witnesses' blogs or social networking pages contain inappropriate information or pictures by removing such content before trial. 20. For example, the blogging foreman of the jury, referenced in note 15 supra, informed the court that he never intended to violate the court's order. Many courts now are considering instructions and procedures specifically designed to minimize juror use of the Internet and electronic devices during jury service. 21. Inquiring about a paper version of a letter to the editor is important since many newspapers now include such letters on their Web sites even though the opinion originally is not submitted online. In addition, persons can post online comments regarding letters to the editor without these comments appearing in printed editions. A negative response to such a question does not always mean that a juror has not expressed his or her opinion in a newspaper. For example, in a death penalty case in which I consulted, an editor of a local newspaper maintained that he had never publicly expressed an opinion on the death penalty. He was later removed for cause when the judge was shown a copy of an editorial he wrote supporting the death penalty. 22. Social networking Web sites often allow users to restrict viewing of certain content to accepted individuals or "friends." However, frequently the default account setting is for unrestricted viewing. In addition, some services, like Twitter, provide the user who tweets or blogs with the profile of the "follower" or receiver of updates. Those who wish to search such services need to be aware of the boundaries concerning juror contact. For example, a juror tweeted the following: "I wondered how attorneys find expert witnesses to testify. I find out today that some dude is following my twitter feed who works for an expert witness location service. I guess that answers that. Now why the hell is he following me?" (Emphasis added.) Vormo.com, Feb. 12, 2009, www.vormo.com/blog/?paged=2. 23. See Gersham, supra note 7, at 324. 24. While use of social networking sites and other general Internet usage will undoubtedly increase, the "hits" on information for jurors in any given case are likely to remain low in the very near future given present usage levels. 25. For example, see the Federal Election Commission (www.fec.gov) or the Center for Responsive Politics (www.opensecrets.org) for names of donors who contributed more than $200 to the presidential and national legislative candidates in 2008. 26. Web sites in many states publish state political contributions. For example, for donors to Virginia state and local candidates and political action committees, see the Virginia Public Access Project (www.vpap.org). 27. See SFGate, Proposition 8 Contributions, www.sfgate.com/webdb/prop8.

Sidebar:

Current Internet Usage

A recent poll of adult Americans 18 years of age and older yields a dramatic increase in Internet usage since 2000. Consider the following snapshot of American Internet contact and usage.

• 77% use the Internet at least occasionally (up from 47% in 2000) Of those using the Internet: • 88% have used an online search engine to find information on the Web • 72% have used the Internet to get news online • 47% have looked up information on Wikipedia • 47% have used a social networking site like Facebook, MySpace, or LinkedIn.com • 19% of online American adults have used a microblogging service like Twitter • 11% have created or worked on their own online journal or blog

Note: See the trend data based on polling conducted by the Pew Internet & American Life Project, August 18 through September 14, 2009, tracking survey at www.pewinternet.org/Trend-Data/Online-Activites-Total.aspx.