The Online Juror

By Browning, John G. | Judicature, May/June 2010 | Go to article overview

The Online Juror


Browning, John G., Judicature


In November, 2008, Sir Igor Judge, the aptlynamed Lord Chief Justice of Great Britain, bemoaned the generational shift occurring as web-sawy citizens accustomed to getting their information online entered the jury box, and the potential consequences of this shift for the oral tradition of the trial by jury system. "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," according to the Lord Chief Justice.1 To cope with the impact that technology is having and will continue to have on jurors and how evidence is presented to them, the jurist cautioned that the courts system must be "capable of development and adaptable for the future."

The modern juror comes to the courthouse from an environment of unprecedented Internet dependence. Nearly 60 percent of American Internet users have profiles on social networking sites like Facebook (which boasts over 400 million users worldwide).'2 People have grown accustomed to getting everything from news to dates to driving directions from online sources. They're communicating electronically in ever-increasing numbers: three years ago, the wildly popular social networking/ microblogging site Twitter handled 5,000 "tweets" a day, and now it processes a staggering 50 million per day.3 As a result, it is more challenging than ever to ensure that jurors remain unbiased tabulae rasa, considering only the information and evidence presented during trial.

Jurors not only have technology enabling them to access a wealth of information with just a few clicks and to communicate instantaneously with the outside world via tweets, texts, blogs, and emails, it's become second nauire to use such devices. Far from being Mark Twain's lamented "intellectual vacuum" and the result of a jury system that he criticized as imposing "a ban upon intelligence and honesty," jurors today find it all too tempting and easy to seek out information online. Consider the following digital misadventures:

* In November, 2008, a juror on a child abduction/sexual assault trial in Lancashire, England, was torn about how to vote. So she posted details of the Case online for her Facebook "friends" and announced that she would be holding a poll. After the court was tipped off, the woman was dismissed from the jury.4

* In March, 2009, an eight-week federal drug trial involving Internet pharmacies was disrupted by the revelation that a juror had been doing research online about the case, including looking into evidence that the court had specifically excluded. When U.S. District Judge William Zloch questioned other members of the jury, he was astonished to learn that eight others had been doing the same thing, including running Google searches on the lawyers and the defendants, examining online media coverage of the case, and consulting Wikipedia for definitions. After the judge declared a mistrial, the defense attorney expressed his shock at the jurors' online activities. "We were stunned," he said. "It's the first time modern technology strack us in that fashion, and it hit us right over the head."5

* In June, 2007, a California appellate court reversed the burglary conviction of Donald McNeely when it was revealed that the foreman of the jury had committed misconduct and deprived the defendant of a fair trial by discussing deliberations on his blog. The foreman, a lawyer who had identified himself as a project manager for his company because it was "[ml ore neutral than a lawyer," blogged about McNeely, his fellow jurors and their discussions, particularly one juror who was "threatening to torpedo two of the counts in his quest for tyrannical jurisprudence."6

* In November, 2007, the Supreme Court of Appeals of West Virginia reversed the conviction of Danny Cecil for felony sexual abuse of two teenage girls. …

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