According to the New York Times, jurors around the country have been triggering mistrials by using their iPhones to research the cases they’re deciding, or worse yet, by Twittering trial updates. Judges traditionally instruct jurors not to read about or discuss the case outside the courtroom. Now they’ve added prohibitions against surfing or talking about the case online as well, because more and more are googling plaintiffs and defendants and the finer points of the law on their web-enable cell phones, or posting trial trivia on Facebook.
It won't be long before Law and Order runs an episode on this new kind of jury tampering – L and O's unaccredited but fully-functional Hudson University School of Law has already worked getting juries offline into its curriculum – but real-life attorneys fear that web-savvy jurors are undermining the criminal justice system and they want the internet out of court.
All the L1's at Law and Order's Hudson Law School now have to take a required online course in how to keep the jury offline
One law professor, apparently outraged that jurors want to learn as much as they can about the issues they're supposed to consider before actually reaching a verdict, insisted to the Times that "the rules of evidence, developed over hundreds of years of jurisprudence, are there to ensure that the facts that go before a jury have been subjected to scrutiny and challenge from both sides." And the author of a legal textbook groused, "You lose all that when the jurors go out on their own."
No surfing in the jury box
Apparently jury panels are supposed to forget everything they know when they enter the courtroom door. But the idea that a juror is a tabula rasa – that's Latin for an unformatted disk – is the real fiction here. I'm not a lawyer, and I don't play one on T.V., but it seems to me that as deep as we are into the information age, it's unrealistic to expect to find twelve ignorant people whose knowledge consists only of what the judge and the lawyers tell them. That would hardly be a jury of one's peers.
Yes, judges need to instruct juries on the law or tell them what they should and shouldn't consider in reaching their decision. It even makes sense to order jurors to stay away from news stories about their trial, particularly when the case is controversial, and to refrain from talking about it with others in order to resist bias and prevent the leaking of sensitive information. But telling a jury panel used to spending much of their day online to go without a net in court seems both unrealistic and wrongheaded.
And speaking of building a firewall around the courtroom . . .
Jurors are supposed to keep an open mind, but that's hardly the same thing as an empty mind. Judges, prosecutors and defense attorneys all have great latitude to research the case in point, reading, talking to colleagues, even paying experts to help them frame their arguments. Take away their Westlaw and their Lexis/Nexis accounts and they'd be completely helpless.
Surely a reasonable person – according to West's online law dictionary, "a hypothetical person in society who exercises average care, skill, and judgment" – can be expected to separate what they know from what they've been instructed to consider when rendering a verdict. If they can't do that already, building a firewall around the jury box probably won't help them make a wiser decision.
