By John DiMotto
In the world of legal blogs, a very hot topic right now is juror misconduct via use of the internet.
I have a twitter account and I follow a number of people who study and report on this issue. It seem like every day there is a tweet about a case somewhere in the country where a juror accessed information via the internet which was discovered post trial and is now the basis for a new trial request. The critical question is, can this misconduct be avoided? My short answer is "yes." (And, I do not believe that this answer is an example of naivete.)
I say this because I am generally a trusting person. I believe that if a judge can create a bond of trust with each juror during voir dire that the jurors will listen to the judge and follow the judge's directions and admonitions. To establish this bond of trust, the judge must make sure that he/she relates on an individual basis with each juror during the voir dire. There must be some one on one time in open court with each juror. In so doing, the judge not only establishes a relationship with that juror but all of the other jurors witness it and can see that the judge truly does care about each juror and the jury as a whole. I say this because at the end of each jury, I talk with the panel and ask them for feedback on what I can do to make the jury experience a better one for future juries. Invariably, I am told by the jurors that they appreciated how I interacted with them individually and as a body. They express how much they valued the information I gave to them about the process and their role. Most importantly, they cared about doing what was right. In that vein, I ask them whether it was difficult for them to stay off the internet, etc. and they tell me while it may have been tempting to want to seek out information that they resisted doing so because they did not want to jeopardize the integrity of their verdict -- something that I constantly stressed during the trial.
Repetition is so very important in many aspects of life, particularly during a jury trial. At the beginning of the trial and give the following admonition to the jury, and I tell them that I will in fact repeat it every time we take a break -- so much so that they will probably be able to repeat it verbatim by the end of the trial:
"Remember this admonition; you may not discuss this case among yourself or with anyone else; it is premature to do so until this case is given to 12 of you for your final deliberations in the seventh and final phase of trial.
When you leave and return to the courtroom during breaks or at the beginning and end of the day, avoid contact with the lawyers, parties and witnesses and they know they should avoid contact with you.
Do not do any research about the case, the issues in the case, the parties or lawyers or witnesses in the case. This means you should not consult with any books or reference materials nor may you go on the internet to seek out information. You may not communicate with anyone in person, through any electronic device or on the internet in any manner, shape or form including social networking.
Everything you need to do your job as jurors will be provided to you within the four walls of the courtroom. You will be presented with all of the evidence here. You will be instructed on the applicable law that you must apply to the evidence here. You will bring your common sense and long experiences in life with you here.
If you do anything outside of the courtroom you will negatively impact the integrity of the verdict you return and it will result in the parties having to retry the case at great expense to them and to the taxpayers of this community."
Yes, I repeat this time and time again, and when I talk with the jurors at the end of the trial they tell me that it really impressed upon them how "sacred" there role is and that they did not want to violate it.
The bottom line is that juror internet misconduct can be averted and avoided if the judge does his/her job and an important part of that job is establishing trust.