Jury duty is bad enough, but imagine not being able to check your phone or e-mail to help relieve the boredom. That's the new rule in Michigan, where trial judges are now required to order jurors not to use phones or other electronic devices while in trial or in deliberations. Telling your Twitter followers you are stuck at the courthouse is not likely to tip the scales of Lady Justice, but Googling for background info on a case is the legal equivalent of ripping off her blindfold.
Despite admonitions from judges, many jurors can't seem to keep their hands off their electronic devices, posting updates on their Facebook pages and — far more worrisome — mining the Internet during breaks in a trial. "The accused has a right to confront the accuser, and you can't cross-examine Wikipedia on the stand," says Douglas Keene, an Austin, Texas, jury consultant. He points to a recent example of outside-the-jury-box research by one juror that led to a mistrial in a case in Miami. When the judge subsequently interviewed the other jurors, he discovered that in total, nine of the 12 had been Googling after hours.
Keene also points to the ways the Internet leads to a "lowered social barrier of self-disclosure" among jurors. For example, in February, a juror in New York City sent a friend request to a witness during deliberations; defense attorneys later tried to get the guilty verdict tossed because of this Facebook faux pas. Keene, who detailed the trend in a report for the American College of Trial Lawyers titled "The Dark Side of the Internet: In the Jury Room", notes that not all of the forbidden online activity is due simply to our addiction to social media. "I think it really is related to a much broader trend," Keene says. "Basically, we are more skeptical about authority."
In October, a warning came from the historic heart of the Anglo-American judicial system when Britain's Lord Chief Justice wondered if the oral tradition of the trial-by-jury system might need to change as today's just-Google-it citizens enter the jury box. "If a generation is going to arrive in the jury box that is totally unused to sitting and listening but is using technology to gain the information it needs to form a judgment, that changes the whole orality tradition with which we are familiar," Sir Igor Judge (yes, the Chief Justice's last name is Judge) told the London Times.
"The Lord Chief Justice is right," says Anne Reed, a Milwaukee attorney and former jury consultant. In the past, the trial lawyer would present evidence orally, perhaps with a few paper exhibits, but today's jurors want to see the supporting evidence in detail. "One thing we see often in mock trials is, jurors are used to seeing source documents," Reed says. "In today's world, I can go online and see the underlying document — if the newspaper report quotes a memo, I can link to a copy of the memo." Googling for more information is an unconscious habit for most of us, Reed adds, noting that she keeps her iPhone at hand as she watches television. This modern reflex can lead jurors to digital misadventures.
Reed fears that the next challenge facing the jury system will be the deliberate planting of misinformation online. Recently she wrote about an anonymous blogger who reported from the courtroom during a trial with the goal, she believes, of influencing the jury pool.
Today's courthouses often have free wi-fi, but many judges are still loath to separate jurors from their cell phones and BlackBerrys during long breaks. However, judges need to do more than simply admonish jurors about what not to do — they need to explain why, Keene says.
The temptation to hop online is so great, and the habit so ingrained, that, as Keene notes, a burglar in Pennsylvania ended up getting caught because he stopped to look at his Facebook page on the victim's computer, leaving an online trail for the police to follow. "If a burglar can't resist checking his Facebook status while in the high-adrenaline process of burglarizing your home," Keene writes, "what's to stop a juror during courtroom tedium?"