Can IT Be Stopped?
Jurors are using the internet and their smart phones to communicate their jury experience, research the cases they are sitting on, even communicating with each other. Judges are getting frustrated trying to stop it. Lawyers are attempting to use this set of events to obtain new trials when the decision goes against them. Can it be stopped?
Personally, I think the cat is out of the bag. Modern communication has reached a point where only a madman would think they could shut it down. Appealing to the authority of the court might work on the older crowd, but the average juror doesn’t feel the need to curtail their behavior no matter what the judge tells them.
I think it is reasonable for lawyers to assume that someone on their jury is going to go to the internet to look up the principals in the case, any publicity about the case and even the experts testifying. The last trial we were in, I have a very strong suspicion that one juror googled the plaintiff’s expert because of the very peculiar questions this juror asked.
I believe the answer is it can’t be stopped and lawyers need to be vigilant on what is out there on the internet that can be searched. But the more interesting question for us is how will it effect jury trials? I think the answer is not much at all. If you look at the trajectory of social discourse over the last 50 years, it is one of more openness, more communication, more information. This is just the next logical step. Once, jurors were tightly controlled. Now they ask questions of witnesses, go out to restaurants to eat together, build camaraderie during the long down times at trial, etc. Does anyone really believe that in a multiple day trial, sometimes weeks and months long, that jurors don’t discuss what they are experiencing among themselves?
It’s probably time to throw off the 19th century legal fictions of isolated jurors listening to all the “facts” and argument before making a decision. At least from the practical standpoint of how do I communicate to these jurors, one needs to assume no such social isolation if one is to find success ongoing. Here are a couple of articles on the subject.
