To address the growing problem of juror misconduct related to the Internet, Smartphones, Blogs, Social Networking Sites, etc., I have drafted new jury instructions entitled, Model Jury Instructions for the Digital Age. These instructions, which are reprinted below, will also be published in my upcoming law review article, Google, Gadgets and Guilt: The Digital Age's Effect on Jurors.
Model Jury Instructions for the Digital Age
The instructions provided below assume the jurisdiction does not allow pre-deliberation discussions between jurors. If that is not the case, then obviously this instruction would have to be slightly modified.
Introduction: As you know, serving on a jury is an important and serious responsibility. And part of that responsibility is to decide the facts of this case using only the evidence that the parties will present in this courtroom. As I will explain further in a moment, this means that I must ask you to do something that may seem strange to you: to not discuss or do any research on this case. I will also explain to you why this rule is necessary, and what to do if you encounter any problems with it.
Communications: Do not discuss this case during the trial with anyone, including any of the attorneys, parties, witnesses, your friends, or members of your family. This includes, but is not limited to discussing your experience as a juror on this case, discussing the evidence, the lawyers, the parties, the court, your deliberations, your reactions to testimony exhibits or any aspect of the case or your courtroom experience. This prohibition extends to all forms of communication, whether in person, written or through any electronic device or media such as: e-mail, Facebook, MySpace, Twitter, instant messaging, Blackberry messaging, I-Phones, I-Touches, Google, Yahoo, or any internet search engine or any other form of electronic communication for any purpose whatsoever, if it relates to this case.
I will give you some form of this instruction every time we take a break. I do that not to insult you or because I don't think you are paying attention, but because, in my experience, this is the hardest instruction for jurors to follow. I know of no other situation in our culture where we ask strangers to sit together watching and listening to something, then go into a little room together and not talk about the one thing they have in common what they just watched together. There are at least three reasons for this rule.
The first is to help you keep an open mind. When you talk about things, you start to make decisions about them and it is extremely important that you not make any decisions about this case until you have heard all the evidence and all the rules for making your decisions, and you won't have that until the very end of the trial. The second reason is that by having conversations in groups of two or three during the trial, you won't remember to repeat all of your thoughts and observations for the rest of your fellow jurors when you deliberate at the end of the trial. The third and most important reason is that by discussing the case outside of the jury room you increase the likelihood that you will be influenced by an outside third party and or you will reveal information that could impact the outcome of the case. If any person tries to talk to you about this case, tell that person you cannot discuss the case because you are a juror. If that person persists, simply walk away and report the incident to my staff.
Research: Do not do any research or make any independent personal investigations into any facts, individuals or locations connected with this case. Do not look up or consult any dictionaries or reference materials, search the Internet, websites, blogs or use any other electronic tools or other source to obtain information about any facts, individuals or locations connected with this case. Do not communicate any private or special knowledge about any facts, individuals or locations connected with this case to your fellow jurors. Do not read or listen to any news reports about this case. The law prohibits a juror from receiving evidence not properly admitted at trial. If you have a question or need additional information, submit your request in writing and I will discuss it with the attorneys.
In our daily lives we may be used to looking for information on-line and to "Google" something as a matter of routine. Also, in a trial it can be very tempting for jurors to do their own research to make sure they are making the correct decision, but the moment you try to gather information about this case or the participants is the moment you contaminate the process and violate your oath as a juror. Looking for outside information is unfair because the parties do not have the opportunity to refute, explain or correct what you discovered or relayed. The trial process works by each side knowing exactly what evidence is being considered by you and what law you are applying to the facts you find. You must resist the temptation to seek outside information for our system of justice to work as it should. Once the trial is over you may research and discuss the case as much as you wish. [Are there any of you who cannot or will not abide by these rules concerning communication or research with others in any way, shape or form during this trial?].
Ramifications: If you communicate with anyone about the case or do outside research during the trial, it could lead to a mistrial, which is a tremendous expense and inconvenience to the parties, the court and taxpayers. Furthermore, you could be held in contempt of court and subject to punishment such as paying the costs associated with having a new trial. If you find that one of your fellow jurors has conducted improper communications or research, you have a duty to let me or a court officer know, so that we can protect the integrity of this trial.