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

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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 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. searches, from juror contact with litigant advocacy on the World Wide Web, and from jurors themselves blogging and/or posting comments concerning their experiences as potential or actual jurors. On the other hand, the Internet also offers great potential for attorneys when they are selecting juries. Attorneys can access the expanding footprints of jurors on the Internet resulting from public records; membership in social, political, and other organizations or causes with a presence on the Internet; membership in social networking Web sites; and the Internet postings and comments of potential jurors themselves. This article addresses both the danger of easy access to outside information for jurors and the beneficial potential for gathering information about potential jurors by lawyers. It also offers a range of recommendations for minimizing the pitfalls and maximizing the benefits of the Internet in the jury context. 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 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. Or this: An expert in a sexual abuse trial discussed several porn Web sites. An intrepid juror subsequently searched these same sites and shared his findings with the jury.8 And, finally, this: During jury selection in a murder case, a juror was excused for researching the case online after he completed his juror questionnaire. When asked why he violated the court's instruction not to conduct Internet research, our enterprising juror responded that he googled the case because he knew, once seated as a juror, he would be unable to do so.9 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.
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