It has been widely reported that jurors’ cyber-surfing has wreaked havoc in the courtroom, with mistrials, appeals and overturned verdicts at record levels. Though largely the result of jurors’ chatting online about the trials on which they are serving, even jurors’ seemingly innocuous web expeditions have stopped trials in their tracks. Earlier this year, a judge in Florida declared a partial mistrial and threatened a juror with charges of criminal contempt after she was found to be conducting online research about head injuries during a capital-murder trial.
As judges grapple with the myriad complexities involved in keeping jurors off their Smart Phones, iPads and Facebook pages, lawyers can help mitigate the damage. Voir dire is a good place to start. In this social-networking age, trial lawyers should be routinely asking members of the jury pool whether they have Facebook accounts, Twitter accounts, even blogs. When hands go up, follow-up questions should include, “How often do you check your Facebook page?” “How often do you post?” “Do you Tweet?” and, if so, “How often?” This should tell you how plugged-in your potential jurors are.
Other questions will give you insight into where they go for information: You might ask, “Do you have blogs or websites you check daily or weekly?” and “What are they?” It might also be helpful to find out how they feel about Wikipedia – do they trust it as a source of information? And you might want to ask how often they Google. An individual who spends hours Googling and YouTubing may need to be reminded in no uncertain terms that trolling online for information relevant to the case is off limits.
As social-networking options evolve, trial lawyers should stay abreast of the latest forums so you not only know how to pose questions, but also how to conduct research. After all, ten years ago, no one would have needed to ask a juror if he Tweets. Today it’s a perfectly reasonable question.
If a potential juror shares that he has several blogs of his own, a few favored blogs on which he posts regularly, a couple of Facebook accounts he checks dozens of times a day and a Twitter account that keeps him hopping, it’s possible that he would ignore a judge’s instruction not to post anything about the case or not to do online research, even if said juror has the best of intentions. It’s just too pervasive. It’s akin to asking him to lock himself in a room with no windows for what could be a month or longer.
By no means is this post meant to suggest that every potential juror with an active social-media life be banned from serving on a jury. Increasingly, that runs contrary to the goal of selecting a jury of one’s peers. On the other hand, as a trial lawyer, it is your job to know what you are dealing with. Not only will this help you in jury selection, but also in how to present information to the jury once the trial is underway. That is, assuming you realize that at least some jurors may still log on.