Florida has recently updated its instructions on the use of electronic devices by jurors. I like these updates because they provide the all important "why." As I have stated numerous times before, if you want jurors to buy-in to the rules you have to tell them why the rules are important.
The treatment of circumstantial evidence has undergone a dramatic change over time, from a high level of scrutiny to widespread acceptance. Similarly, our understanding of direct evidence has evolved, as wrongful convictions have exposed the potential unreliability of eyewitnesses and confessions. In accordance with the changing views of each type of evidence, this Note identifies two distinct policy goals of circumstantial and direct evidence jury instructions. The first is to establish an equality of import between the two types of evidence, to combat juror bias that leads to the under or overvaluing of one type over the other. The second, which seems to be in conflict with the first, is to promote a higher level of care during jury deliberations, so that jurors do not casually make incorrect or unfounded factual inferences. However, these goals can be reconciled if we acknowledge that all kinds of evidence are highly probative, and subject to similar dangers from inference. By evaluating three different states’ circumstantial and direct evidence jury instructions for comprehensibility and effective advocacy of policy goals, this Note identifies what is done well and what diminishes the efficacy of the instruction, and then offers various solutions in the form of altered instructions. Ultimately, this Note concludes that the most effective solution is to create a new instruction that combats the dangers of inference, appeals to jurors’ appreciation of a reasonable alternative narrative, and eliminates the unnecessary distinction between direct and circumstantial evidence.
In the state of New York, it is a "matter of strategy and tactics which ultimately rests with defense counsel." This was determined last month in People v. Colville.
The issue arose from the murder trial of Delroy Colville. In that case, the defendant was charged with second degree murder. The defendant claimed self-defense.
The defense attorney wanted to give the jury instructions on two lesser included offenses: first and second degree manslaughter. However, the defendant opposed the instructions. Although the judge agreed with defense counsel, he followed the defendant's wishes and did not give the additional instructions to the jury.
The jury convicted the defendant and he appealed. The intermediate appellate division unanimously affirmed. However, the state high court overturned the conviction finding that "[b]y deferring to defendant, the judge denied him the expert judgment of counsel to which the Sixth Amendment entitles him."
The Judicial Conference Committee for the federal courts has recently updated its instructions regarding jurors and social media. These new instructions are available here. My brief observations and comments about the instructions are as follows.
1. First, I find it interesting that the courts found it even necessary to update their instructions. Not too long ago, (6 months) the courts released a "study" (based on the views of federal judges) that jurors were adhering to the court's rules on improper communications and research. Go here for my post on that study.
2. As for the instructions themselves, they are an upgrade from the previous instructions; however, they don't, among other things, address the "why" question. If you want today's jurors to follow court instructions, you have to tell jurors why they are important. In the Digital Age, it is too easy for jurors to communicate and conduct research about a case. If courts want jurors to trust them and not Google, they need to tell jurors why they should follow the court's instructions.
3. In addition, these rules don't tell jurors that they can't friend the attorneys. Recently, a juror not only sent a friend request to an attorney, but also asked if the attorney was single. For more on that issue go here.
4. These rules also fail to adequately inform jurors about the consequences and penalties for violating the court's instructions.
5. Finally, I have previously discussed and analyzed an earlier version of these jury instructions in which I go more in depth in pointing out their shortcomings. Go here for my law review article on that topic. That law review article also contains my proposed jury instructions.
This article by the Arizona Daily Star gives the pros and cons of allowing jurors to ask questions in criminal trials. Arizona is one of the few states (Indiana and Colorado are the others) to give jurors the right to ask questions during criminal cases. However, other states, like Michigan, are testing the idea. Finally, in civil cases, the practice is much more common.
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 notlook 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 notcommunicate any private or special knowledge about any facts, individuals or locations connected with this case to your fellow jurors. Do notread 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.
For the most part Ohio's new jury instructions emulate similar instructions that are in place or will be in place in other jurisdictions around the country. One rather unique aspect of the Ohio instructions is that they also attempt to address the so-called impact of CSI and other law-related television programs on jurors. Although this may seem quite obvious, the new Ohio instructions inform jurors that they are not to rely on or obtain legal information from law-related television programs.
3. WARNING ON OUTSIDE INFLUENCE. The effort to exclude misleading outside influences information also puts a limit on getting legal information from television entertainment. This would apply to popular TV shows such as Law and Order, Boston Legal, Judge Judy, older shows like L.A. Law, Perry Mason, or Matlock, and any other fictional show dealing with the legal system. In addition, this would apply to shows such as CSI and NCIS, which present the use of scientific procedures to resolve criminal investigations. These and other similar shows may leave you with an improper preconceived idea about the legal system. As far as this case is concerned, you are not prohibited from watching such shows. However, there are many reasons why you cannot rely on TV legal programs, including the fact that these shows: (1) are not subject to the rules of evidence and legal safeguards that apply in this courtroom, and (2) are works of fiction that present unrealistic situations for dramatic effect. While entertaining, TV legal dramas condense,distort, or even ignore many procedures that take place in real cases and real courtrooms. No matter how convincing they try to be, these shows simply cannot depict the reality of an actual trial or investigation. You must put aside anything you think you know about the legal system that you saw on TV.
Following in the footsteps of the federal government and numerous states, Texas has decided to modify its civil rules to address the impact of the Digital Age on jury service. Here is the new proposed Rule 226a that covers mandatory jury instructions.
Do not discuss this case with anyone, even your spouse or a friend, either in person or by any other means [including by phone, text message, email message, chat room, blog, or social networking websites such as Facebook, Twitter, or Myspace]. Do not allow anyone to discuss the case with you or in your hearing. If anyone tries to discuss the case with you or in your hearing, tell me immediately. We do not want you to be influenced by something other than the evidence admitted in court.
Do not investigate this case on your own. For example: a. Do not try to get information about the case, lawyers, witnesses, or issues from outside this courtroom. b. Do not go to places mentioned in the case to inspect the places. c. Do not inspect items mentioned in this case unless they are presented as evidence in court. d. Do not look anything up in a law book, dictionary, or public record to try to learn more about the case. e. Do not look anything up on the Internet to try to learn more about the case. f. And do not let anyone else do any of these things for you.
Juries deciding civil cases in Indiana should be pleased to know that the civil jury instructions provided to them have been simplified. As the article below indicates, the Indiana Judges Association hired Elizabeth Francis, PhD, who teaches in the departments of English and Judicial Studies at the University of Nevada at Reno, to rewrite the instructions. Prof. Francis, an expert in plain English principlles, was tasked with translating the Nevada civil jury instructions from 'legalese' to more readily understood plain English. The new instructions are available at Lexis.