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It’s just Google! Keeping jurors offline to stay in line

NORFOLK – Jurors who have a hard time putting their Internet habit on hold during jury service need strong guidance from trial judges, a jury research expert says.

In Virginia courtrooms and around the country, jurors are yielding to the impulse to “just Google it” when they have a question.

A once-or-twice warning not to consult outside sources isn’t enough, warned Jeffrey T. Frederick, Ph.D., director of jury research services for the National Legal Research Group Inc., in Charlottesville. Frederick appeared with Petersburg Circuit Judge Pamela S. Baskervill and Charlottesville Circuit Judge Edward L. Hogshire on May 16 at the annual Judicial Conference, a gathering of judges from Virginia’s courts of record.

Jurors need strong direction from trial judges to keep them anchored in what’s happening in the courtroom instead of sneaking onto electronic devices

When cautioning jurors about Internet usage, judges should keep the jurors’ perspective in mind. Frederick said jurors seek online information because they think it’s reliable, it’s widely available, they use it routinely in their daily lives and it’s “private and relatively undetectable.” Most importantly, jurors use the Internet because “they are motivated to make the right decision.”

Jury instructions need to be concrete and consistent, and describe specific consequences for juror misconduct, Frederick said.  “It’s not a no harm, no foul situation.”

Those consequences can range from a mistrial to contempt convictions, fines and jail time.  Frederick described cases from outside Virginia in which jurors have been fined for conduct such as looking up a defendant’s criminal record and researching the punishment range for a charged offense.

At the outer limits of juror misconduct, a juror in England actually posted information on a trial on her Facebook page, and asked people to vote for a verdict.

What these stories illustrate is jurors who have to make a decision in a legal case do what many people do on a daily basis: They go online to gather information to inform their decision.

It’s not enough to lump Internet usage into general warnings about “outside sources.” Jurors view Internet usage as “part of the fabric of their lives,” to echo the cotton commercial.

Jurors say, “‘It’s not like I went to the library.’ It’s viewed as fundamentally different from the brick and mortar thing,” Frederick said.

Hogshire has seen his share of high-profile cases in the last 18 months, including a personal injury case in which he imposed a record sanction for a lawyer’s failure to disclose efforts to hide a client’s Facebook photos. That case, Lester v. Allied Concrete Co., was set to go before a Virginia Supreme Court writ panel last week.

When Hogshire instructs the jury, including admonitions about Internet usage, he’s “taken the position we’re all in this together.” He tells jurors, “You’re at the core of our system.”

“The problem is, they’re only getting $30 a day,” and giving up their time for days or weeks at a time, he said.

Hogshire also tries to be clear about what’s happening during voir dire. When prospective jurors don’t respond to a question, “tell them you’re going to treat that as a ‘yes’ or a no.’ Then we have a record of what was deemed an answer during voir dire.” He also instructs jurors to treat jury instructions as “a direct order of the court.”

Sequestration of the jury is hard to manage, without posting an armed guard at the motel room door. But Hogshire has a rule about no electronic devices in the courtroom, except for the lawyers in the case. “That’s a relatively new development,” he said.

Hogshire recognizes that lawyers may be looking for something to “stir up” after trial. But holding a post-trial hearing on juror misconduct is a tough call.

“I think the last thing you want to do is bring a jury in after a trial on a claim of misconduct or bias, without a really good prima facie showing,” Hogshire said.

Jurors also may not be aware of how much lawyers are using the Internet to learn about jurors beforehand, or later, to uncover juror misconduct. When allegations of juror misconduct come to light affects how the trial judge responds.

Baskervill described trying a consolidated wrongful death and personal injury suit against a defendant police officer, only to learn after the “sizeable verdict for the plaintiffs” that several jurors had failed during “extensive voir dire” to disclose contacts they and their family had had with local police.

Some information about jurors’ contacts may have come from the “numerous spectators” who came in to hear closing arguments. In any event, the defense lawyers moved for a mistrial.

Why didn’t the defense lawyer come forward earlier? Baskervill wondered. What efforts had the defense team made to uncover these criminal contacts during voir dire?

Post-verdict complaints may raise a question of waiver, which says a party is not permitted to remain silent in the face of misconduct, Baskervill said. The court’s “responsibility would have been different prior to the verdict being rendered.” Post-verdict, a court has to deal with the “tension between the idea of waiver and the integrity of the judicial process and fairness.”

She referred the parties to a settlement conference, and they ultimately resolved the case.

“We often don’t know misconduct has occurred,” Frederick said, which points to the need for strong and regular reminders to jurors about the restrictions.

Judges just need to “up the game a little,” Frederick said.

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