Juries

Online Juror Research Leads to Another Overturned Verdict (People v. Pizarro)

Last week, the California Appellate Court in a lengthy opinion (116 pages) overturned the murder conviction of Michael Pizarro (People v. Pizarro).  This is the third time that Mr. Pizarro has had his sentence overturned by the appellate court.  In this latest instance, the appellate court overturned the verdict because a juror conducted his own online research.  Specifically, the juror learned that Pizarro had not only been convicted in a prior trial, but had also testified. 

The trial court deemed the juror's action gross misconduct but not sufficient to overturn the verdict because of overwhelming evidence of Pizarro's guilt.  The appellate court saw it differently stating that:

We sympathize with the trial judge who, having presided over two jury trials and a prolonged Kelly hearing amid two appeals, was called upon to make the difficult decision of whether to grant yet another new trial in a case that was then almost 20 years old."  [However,] the juror's misconduct in disobeying the court's repeated admonitions  and in investigating the case on his own made a mockery of the trial process and prejudiced defendant. We view that juror's behavior in this case as criminal."

Here are the reasons offered by this specific juror for why he violated the court's rules on researching the case.  The juror's rational not only demonstrates the importance of simplifying evidence but also serves as a cautionary tale for attorneys and judges.

[he] was lost. And that was really [his] reasoning to try and find to know where [he] was within the case.

felt that [he] wanted to do what was right for [defendant‟s] case and understand what was going on within the case. So that was the reason why [he] had pulled up some information, which turned out to be the very thick PDF file [the prior appellate opinion], to understand how the series of events had happened.

just wanted to understand the timeline[ and] the series of events of the case so [he could] understand so [he could] be on top of stuff while [he was] listening .…

MD Judge Prohibits Attorney from Researching Jurors Online

According to the news story below, a judge in Montgomery County, Maryland has denied a defense attorney's request to research jurors online.  Apparently, the judge finds the practice "totally inappropriate." The case in which the issue was raised resulted in a mistrial; therefore, the attorney did not appeal the judge's decision. Had he appealed, I think he would have won. To date, several states through court rulings have upheld the practice. In fact, in Missouri if an attorney is handling a civil case and she fails to research the jurors in her case on Missouri's Case.net system she may forfeit the opportunity to raise a later claim of juror misconduct. The practice also has support in a NY Ethics Opinion. 

The problem with the judge's decision becomes more apparent when juxtaposing traditional juror research techniques with modern techniques. Historically and even today, attorneys have been allowed to drive by the house of prospective jurors; talk to the juror's friends or neighbors or go to the library to read old news paper articles about jurors. Why then should the court prevent attorneys from going online to gather information about jurors so long as they don't contact them? For more information about the topic of attorneys investigating jurors go here.

Maryland Community Newspapers Online: Montgomery judge denies Internet searches for jury selection

Prosecutors and the Socially Networked Jury: New Law Review Article

Andrew E. Taslitz, Information Overload, Multi-tasking and the Socially Networked Jury: Why Prosecutors Should Approach the Media Gingerly, 37 J. Legal Prof 89 (2012)

Abstract: 
The rise of computer technology, the Internet, rapid news dissemination, multi-tasking, and social networking have wrought changes in human psychology that alter how we process news media. More specifically, news coverage of high-profile trials necessarily focuses on emotionally-overwrought, attention-grabbing information disseminated to a public having little ability to process that information critically. The public’s capacity for empathy is likewise reduced, making it harder for trial processes to overcome the unfair prejudice created by the high-profile trial. Market forces magnify these changes. Free speech concerns limit the ability of the law to alter media coverage directly, and the tools available to trial judges to minimize harm to trial fairness are toothless. The usual solution has been lawyers’ ethics rules designed to channel their communications with the press, particularly rules focusing on prosecutors.

This piece addresses these concerns, using a recent proposed revision to the American Bar Association Criminal Justice Standards for the Prosecution Function as a jumping off point for the discussion. Those Standards, like most state ethics rules, prohibit prosecutors from making “public statements that the prosecutor reasonably should know will have a substantial likelihood of materially prejudicing a criminal
proceeding.” Drawing on cognitive science, behavioral economics, rumor-transmission studies, and jury research, this article argues that a
substantial likelihood of mate-rial prejudice to criminal proceedings from prosecutor statements to the press will always be present in high profile cases. Accordingly, the rules generally governing prosecutor dealings with the press, including the latest version of those rules embodied in the proposed Standards, are unrealistic. Better rules are theoretically possible. Nevertheless, this article concludes,such rules are probably not politically realistic. Accordingly, this piece recommends modest changes to the proposed standards’ commentary to alert prosecutors to the true nature of the risks arising from their contact with the media and recommending prosecutor training and internal and external accountability mechanisms to improve prosecutor performance in this area.

Jurors and Social Media

If you want to know what jurors are thinking go to social media.  Jurors like the rest of society are increasingly posting their thoughts on social media.  In the most recent example, a juror in England who was sitting on the trial of an alleged sex offender posted the following on Facebook: 

Woooow I wasn’t expecting to be in a jury Deciding a paedophile’s fate, I’ve always wanted to F[!]ck up a paedophile & now I’m within the law!

This juror is now being prosecuted for contempt.  Recently, I have started to notice, especially in England, courts taking a tougher stance on jurors who violate the court's rules about discussing or researching the case.  It remains to be seen whether penalizing jurors is the way to go to stop improper juror communications and research via the Internet.  I have always advocated a four prong approach to this problem: (1) juror penalties, (2) juror investigations, (3) juror questions; and (4) better juror instructions.

To read more about the prosecution of this English juror go here.

Why Courts Worry About Jurors Using Social Media

The latest article on jurors and social media is listed below. Among
other things, the article lists four reasons why courts are so concerned
about jurors using social media.

(1) Potential for direct communication with members of the court

(2) Release of confidential information about the trial or the deliberation process

(3) Disclosing of personal information about a fellow juror

(4) Revealing an unacceptable bias for or against one party

I would add one more reason to this list or maybe expand  #1. 

Potential for communication with outside parties unaffiliated with the court. 

When jurors use social media they are likely to post or write about the  case.  This increases the likelihood that they will get into a  discussion or communication with an outside party about the case.  This in turn may lead to the outside party improperly influencing the juror. 

Social Media Use as Evidence of Juror Misconduct: Richard Raysman and Peter Brown

 

I have written two law review articles on this topic. 

Google, Gadgets, and Guilt: The Digital Age's Effect on Juries

Investigating Jurors in the Digital Age: One Click at a Time

Shrinking CA Juries

The California Judges Association is proposing a state constitutional amendment that would significantly change jury service in CA for misdemeanor cases.  These proposals include:

(1) reducing juries from 12 to 8 for misdemeanor cases punishable by up to one year in jail

(2) reducing the total number of peremptory challenges in these cases

The primary reasons for these changes is to cut costs in the judiciary.  However, I think they have other benefits to include expediting misdemeanor cases.  I also believe that with smaller juries attorneys may be more inclined to request jury trials. 

A critique of the proposals can be found here.

Support for the proposals can be found here.

Court to Search Juror's Computer

This is one way to cut down on jurors conducting internet research.  I am sure that as more jurors learn that the court can order an inspection of their computer they will be more inclined to follow the court's rules on obtaining outside information about the case.

Tambabay.com: Judge orders search of juror's computer drive in Buju Banton case

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Ft. Wayne Court Texting Jurors and Using Online Questionnaires

I am sure folks have heard the numerous stories of how technology and the Digital Age have led to increased instances of juror misconduct with jurors using social media to discuss the case prior to deliberations or smartphones to conduct independent research.  However, technology in the jury box is not always a bad thing.  Here is some news out of Ft. Wayne discussing how the court system there appears to be embracing technology and using it to not only expedite jury selection but also to improve communications between the court and jurors.  According to the article below, the courts in Ft. Wayne, which have already adopted online juror questionnaires, are now communicating with jurors via text.  The program called "mjuror" allows the courts to both send and receive messages to and from jurors. 

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Ft. Wayne Journal Gazette: Court 1st in nation to text with jurors

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Jurors who Google

The article below discusses a prospective juror in Florida who conducted internet research during jury selection.  When asked by the judge why he researched the case the juror explained, "curiosity got the better of me."

Fortunately for this juror he was neither fined nor incarcerated.  Instead the judge decided to sentence him to additional service as a juror--one week a month for the next three months.  What I find interesting about this growing problem is that few ever look at the system itself.  It seems most folks want to place all the blame on the juror rather than examine the legal system as a whole. 

Jurors like everyone else in society are curious.  In the Digital Age, they now have the tools to satisfy this curiosity.  Society should consider offering jurors other ways in which to fulfill this curiosity e.g., courts should allow and encourage questions by jurors.

St. Petersburg Times: Judge sentences misbehaving juror to more
jury service

 

Cracking Down on Jurors who Google

It appears that some American judges (at least in Florida) are cracking down on jurors who violate the court's rules on using the Internet to research a case.  The media is reporting on a story in Florida where the judge is planning to incarcerate a juror for using Google to research the defendant. 

This is the second time this year in which a Florida juror faces incarceration for flaunting the rules of the court.  Most jurisdictions limit their punishment of jurors to a public reprimand or some type of fine.  However, it looks like Florida judges are starting to emulate the English and take a tougher stance on those who ignore the court's instructions about conducting outside research on a case.

As discussed here, improper research and communications by jurors is a growing problem in the Digital Age.  I have written more extensively on this topic here.