In the previous installment in this series, we examined the current rash of cases in which the online activities of jurors – blogging or “tweeting” from the jury box – have threatened the integrity of the judicial process. Even as “Legally Speaking” went to press, yet another case came along and illustrated the prevalence of this issue.

In the case of Zarzine Wardlaw v. State of Maryland, Maryland’s Special Court of Appeals looked at the circumstances behind the conviction of a man charged with rape, child sexual abuse, and incest involving his 17-year old daughter. During the trial, a therapeutic behavioral specialist had testified about working with the victim on behavioral issues such as anger management and had opined that the girl suffered from several psychological disorders, including ODD (oppositional defiant disorder). A juror took it upon herself to research ODD online, discovered that lying was a trait associated with the illness, and apparently shared this knowledge with the other jurors. Another member of the jury sent a note informing the judge about this development. After reading the note to counsel for both sides, the judge denied a defense motion for a mistrial and simply reminded the entire jury of his instructions not to research or investigate the case on their own “whether it’s on the Internet or in any other way.”

The appellate court found that this was not enough, and that since the victim’s credibility was a crucial issue, the juror’s Internet research and reporting her findings to the rest of the jury “constituted egregious misconduct” that could well have been “an undue influence on the rest of the jurors.” As a result, the trial judge was reversed and a mistrial was granted.

Faced with incidents like those in the Wardlaw case and others, the question becomes one of changing the law to account for emerging technology, or simply bowing to the “inevitability” of jurors having such information at their fingertips. Debate on this issue has raged in both the techie and legal blogospheres. bMighty.com, which provides technology advice to businesses, observed that “The fault isn’t with the technology, or with the jurors. It’s with an arrogant, controlling legal system living in a dream world that ignores fundamental changes in the way people access information.” The Unofficial Apple Weblog noted that although judges probably never before gave a second thought to the notion of jurors using their phones to do research, “our do-it-all phones are likely going to force a complete rewriting of the rules.” Douglas L. Keene, president of the American Academy of Trial Consultants, says “It’s really impossible to control” jurors conducting Internet research. And one lawyer posting to an American Bar Association online discussion of this issue even suggested that “we probably ought to do away with” the rule banning jurors from doing their own research “because no one follows it anyway.”

Yet as daunting a task as it may be to control juror access to information, there are important reasons behind it. For one thing, our adversarial system of justice depends upon each side being able to scrutinize and challenge the evidence that goes before a jury. We have constitutional rights to due process, to a jury trial, and to confront and cross-examine the witnesses and evidence against us. Rules of evidence, refined over hundreds of years of jurisprudence, and interpreted at trial by a judge, determine what is admitted for consideration by the jury. Allowing jurors to go off on their own means that evidence that hasn’t been subjected to such scrutiny can influence the outcome of a case.

Another reason for such gatekeeping is the fact that just because something is found on the Internet doesn’t mean it’s true. As one federal district judge lamented in 1999, “Anyone can put anything on the Internet. No web site is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation.” Photos can be digitally altered, fake MySpace profiles can be created (a fact that has spawned litigation of its own), and articles in Wikipedia are posted and updated by authors who don’t always have authenticity foremost in mind. In fact, in April 2009, a New Jersey appellate court ruled that a Wikipedia page could not provide a factual foundation for evidence in a lawsuit, noting that since anyone with an Internet connection can create a Wikipedia account and change any entry, “such a malleable source of information is inherently unreliable.”

Clearly, maintaining control over the flow of information to those twelve people sitting in the jury box is vital to the integrity of the justice system. But it is just as clear that many more cases in the future will be affected by jurors bringing information into the jury room and sending updates out from it. In March, 2009 during the federal corruption trial of former Pennsylvania state senator Vincent Fumo, a juror posted updates on the case on Twitter and Facebook, even hinting to readers of a “big announcement” before the verdict was issued. The judge denied the defendant’s motion for a mistrial, but after a guilty verdict was returned, Fumo’s lawyers announced plans to use the Internet postings as a basis for appeal. In February, Barry Price of Cincinnati, Ohio found himself booted from a pool of potential jurors in a high-profile personal injury case involving an injured railyard worker. Prominent plaintiff’s attorney Stanley Chesley was researching the prospective jurors when he came across Price’s Facebook page, which the 27 year-old Procter & Gamble worker had just updated to read “Barry Price is sitting in hell… aka jury duty.”

Price’s dim view of jury service led to him being removed from the jury pool, but he is hardly alone. Look on a website like www.juryexperiences.org, and you’ll see what I mean.

What attorney weighing who to strike from the jury panel wouldn’t want to know that the guy in the third seat from the left on the second row has just blogged “I have become very bitter … and feel maybe it’s my chance to put someone in jail, and let their families see how it feels — I know I am not going to be an [im]partial juror because of this…?” On Twitter, meanwhile, a random search for the phrase “jury duty” revealed over a hundred entries over a span of only several hours. Typical examples from this search ranged from “I am so bored” to “well, I managed to get off jury duty; all I had to do was wear a man-baby outfit” to “I got a jury duty summons. Any suggestions [on how] to come off like a raving lunatic are appreciated.”

The online activities of jurors and prospective jurors are simply becoming too pervasive to ignore. According to a December 2008 Pew Internet Study, 35 percent of American adult Internet users over the age of 18 have a profile on a social networking site. When that group of people is narrowed to ages 25 to 34, the figure soars to 57 percent. A growing number of attorneys are inquiring into the Internet habits of prospective jurors, but what can judges do to adapt to the evolving technological landscape?



John Browning is a partner in the Dallas office of Gordon & Rees, LLP. He may be contacted at: jbrowning@gordonrees.com