“Did you hear?” my friend the Prosecutor asked me on our ride home from work yesterday. I had already answered his question about how work was going, expressing my enthusiasm about a new social networking project I am involved in. I guess this made me the new carpool resident expert on technology in the law.
“What?” I asked.
“Do you mean ‘tampering?'”
“No, you know, twitting – sending IMs and stuff from the jury box,” he siad. I didn’t bother to correct him that the preferred nomenclature among microbloggers is “tweeting,” but no, I hadn’t heard about that. The latest I had heard on tweeting in the courtroom came from Futurelawyer, who said that journalists were now allowed to tweet from court. I guess all tweets are not created equal.
“This is a nightmare,” my prosecutor friend said. “Do you realize now how easy it is to get a mistrial now?”
“Yeah,” I said picturing the scene:
A millenial mafioso walks up to a juror outside the courthouse with two goons in tow. He has that killer look in his eye and the juror is scared (she knows that the teflon don on trial would love nothing more than to have an intimidated juror on the panel). The integrity of the justice system teeters in the balance. “Hello Ms. Smith,” Fat Tony says, “we have something for you.” One of the goons reaches into his coat pocket. Ms. Smith inhales a shallow breath, as faces of family, her poor cat, and all the things she would never get to do like go jet skiing flash before her eyes. She lets out a soft wimper as the glint of light from a nearby lamp post slices across the shiny crome surface of the … Iphone? “A present from us to you,” Fat Tony says. “It even has Twitter pre-installed from the Ap Store. Have a nice night.”
“There’s really no way to stop it,” my prosecutor friend said.
“Why don’t they just ban cell phones from the courtroom for jurors?” I asked. Some courts have done this, but there is no uniform push for this among the judiciary.
“The problem is that they go home, check the Internet, look something up somewhere on Google or Wikipedia.” This is a big no-no under the Federal Rules of Evidence. As the New York Times article makes clear:
Jurors are not supposed to seek information outside of the courtroom. They are required to reach a verdict based on only the facts the judge has decided are admissible, and they are not supposed to see evidence that has been excluded as prejudicial. But now, using their cellphones, they can look up the name of a defendant on the Web or examine an intersection using Google Maps, violating the legal system’s complex rules of evidence. They can also tell their friends what is happening in the jury room, though they are supposed to keep their opinions and deliberations secret.
Legal Framework (bear with me): It is popular American belief that you have the right to a trial by a “jury of one’s peers,” but this is nowhere in the U.S. Constitution. For criminal trials the Sixth Amendment only guarantees the right to, “a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed,” (requires impartial jury from cross section of community). For federal civil trials, the Seventh Amendment guarantees that “the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law,” (enables judge to limit jury to base decision on evidence presented and, at common law, set aside jury decision which runs counter to this). Supreme Court decisions on jury issues are always colored by that Crayola Box of rights the Fourteenth Amendment, which guarantees “equal protection” of the laws for all citizens.
With this framework the question remains: does a juror’s use of online research to educate themselves about issues at trial violate the juror’s duties of impartiality and limiting their decision to the issues presented? In today’s world it seems that only the “honor system” will work in limiting what a juror accesses online, at home in reference to their case. If we took this to an extreme, we may argue that an online and mobile blackout should be imposed for all active jurors to avoid taint or the possibility of the defendant friending the juror on Facebook, tweeting them, or even that the juror may look up the defendant on one of these sites. Should the Orwelian paranoia win out in this debate, what does that say then about our “cross section” of the community?
The fact remains that everyone is connected these days, whether at home or on the go; even my mom is on Facebook now. Perhaps what is needed is a re-examination of the Federal Rules of Evidence in a digital world as it applies to the jurors duty. By the time the committee gets around to amending the rules, creating guidelines for courts, and dealing with the diverse implimentation among various jurisdictions (as well as states amending and doing the same to state rules), we will all have neural implants that allow wireless communication of our thoughts, accessing and processing terabytes of data with nod, and broadcasting our most profound insights with a wink. Maybe when that day comes my prosecutor friend’s nightmare can be avoided by just having the trial before the crime happens by looking into the mind of the defendant and prosecuting them based on their intentions? Even in such a minority report jurisdiction, voir dire would be a b*tch.