Subject: http://www.nytimes.com/2009/03/18/us/18juries.html

March 18, 2009

As Jurors Turn to Web, Mistrials Are Popping Up By JOHN SCHWARTZ

Last week, a juror in a big federal drug trial in Florida admitted to the judge that he had been doing research on the case on the Internet, directly violating the judge's instructions and centuries of legal rules. But when the judge questioned the rest of the jury, he got an even bigger shock.

Eight other jurors had been doing the same thing. The federal judge, William J. Zloch, had no choice but to declare a mistrial, a waste of eight weeks of work by federal prosecutors and defense lawyers.

"We were stunned," said a defense lawyer, Peter Raben, who was told by the jury that he had been on the verge of winning the case. "It's the first time modern technology struck us in that fashion, and it hit us right over the head."

It might be called a Google mistrial. The use of BlackBerrys and iPhones by jurors gathering and sending out information about cases is wreaking havoc on trials around the country, upending deliberations and infuriating judges.

Last week, a building products company asked an Arkansas court to overturn a $12.6 million judgment, claiming that a juror used Twitter to send updates during the civil trial.

And on Monday, defense lawyers in the federal corruption trial of a former Pennsylvania state senator, Vincent J. Fumo, demanded before the verdict that the judge declare a mistrial because a juror posted updates on the case on Twitter and Facebook. The juror had even told his readers that a "big announcement" was coming on Monday. But the judge decided to let the deliberations continue, and the jury found Mr. Fumo guilty. His lawyers plan to use the Internet postings as grounds for appeal.

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.

A juror on a lunch or bathroom break can find out many details about a case. Wikipedia can help explain the technology underlying a patent claim or medical condition, Google Maps can show how long it might take to drive from Point A to Point B, and news sites can write about a criminal defendant, his lawyers or expert witnesses.

APPENDIX D 1

"It's really impossible to control it," said Douglas L. Keene, president of the American Society of Trial Consultants.

Judges have long amended their habitual warning about seeking outside information during trials to include Internet searches. But with the Internet now as close as a juror's pocket, the risk has grown more immediate - and instinctual. Attorneys have begun to check the blogs and Web sites of prospective jurors.

Mr. Keene said jurors might think they were helping, not hurting, by digging deeper. "There are people who feel they can't serve justice if they don't find the answers to certain questions," he said.

But the rules of evidence, developed over hundreds of years of jurisprudence, are there to ensure that the facts that go before a jury have been subjected to scrutiny and challenge from both sides, said Olin Guy Wellborn III, a law professor at the University of Texas.

"That's the beauty of the adversary system," said Professor Wellborn, co-author of a handbook on evidence law. "You lose all that when the jurors go out on their own."

There appears to be no official tally of cases disrupted by Internet research, but with the increasing adoption of Web technology in cellphones, the numbers are sure to grow. Some courts are beginning to restrict the use of cellphones by jurors within the courthouse, even confiscating them during the day, but a majority do not, Mr. Keene said. And computer use at home, of course, is not restricted unless a jury is sequestered.

In the Florida case that resulted in a mistrial, Mr. Raben spent nearly eight weeks fighting charges that his client had illegally sold prescription drugs through Internet pharmacies. The arguments were completed and the jury was deliberating when one juror contacted the judge to say another had admitted to her that he had done outside research on the case over the Internet.

The judge questioned the juror about his research, which included evidence that the judge had specifically excluded. Mr. Raben recalls thinking that if the juror had not broadly communicated his information with the rest of the jury, the trial could continue and the eight weeks would not be wasted. "We can just kick this juror off and go," he said.

But then the judge found that eight other jurors had done the same thing - conducting Google searches on the lawyers and the defendant, looking up news articles about the case, checking definitions on Wikipedia and searching for evidence that had been specifically excluded by the judge. One juror, asked by the judge about the research, said, "Well, I was curious," according to Mr. Raben.

"It was a heartbreak," Mr. Raben added.

Information flowing out of the jury box can be nearly as much trouble as the information flowing in; jurors accustomed to posting regular updates on their day-to-day experiences and thoughts can find themselves on a collision course with the law.

In the Arkansas case, Stoam Holdings, the company trying to overturn the $12.6 million judgment, said a juror, Johnathan Powell, had sent Twitter messages during the trial. Mr. Powell's messages included "oh and nobody buy Stoam. Its bad mojo and they'll probably cease to Exist, now that their wallet is 12m lighter" and "So Johnathan, what did you do today? Oh nothing really, I just gave away TWELVE MILLION DOLLARS of somebody else's money."

Mr. Powell, 29, the manager of a one-hour photo booth at a Wal-Mart in Fayetteville, Ark., insisted in an interview that he had not sent any substantive messages about the case until the verdict had been

APPENDIX D 2

delivered and he was released from his obligation not to discuss the case. "I was done when I mentioned the trial at all," he said. "They're welcome to pull my phone records."

But juror research is a more troublesome issue than sending Twitter messages or blogging, Mr. Keene said, and it raises new issues for judges in giving instructions.

"It's important that they don't know what's excluded, and it's important that they don't know why it's excluded," Mr. Keene said. The court cannot even give a full explanation to jurors about research - say, to tell them what not to look for - so instructions are usually delivered as blanket admonitions, he said.

The technological landscape has changed so much that today's judge, Mr. Keene said, "has to explain why this is crucial, and not just go through boilerplate instructions." And, he said, enforcement goes beyond what the judge can do, pointing out that "it's up to Juror 11 to make sure Juror 12 stays in line."

It does not always work out that way. Seth A. McDowell, a data support specialist who lives in Albuquerque and works for a financial advising firm, said he was serving on a jury last year when another juror admitted running a Google search on the defendant, even though she acknowledged that she was not supposed to do so. She said she did not find anything, Mr. McDowell said.

Mr. McDowell, 35, said he thought about telling the judge, but decided against it. None of the other jurors did, either. Now, he said, after a bit of soul-searching, he feels he may have made the wrong choice. But he remains somewhat torn.

"I don't know," he said. "If everybody did the right thing, the trial, which took two days, would have gone on for another bazillion years."

Mr. McDowell said he planned to attend law school in the fall.

Please be advised that Florida has a broad public records law, and all correspondence to me via email may be subject to disclosure. Under Florida records law (SB80 effective 7-01-06), email addresses are public records. If you do not want your email address released in response to a public records request, do not send public records request to this entity. Instead, contact this office by phone or in writing.

Please be advised that Florida has a broad public records law, and all correspondence to me via email may be subject to disclosure. Under Florida records law (SB80 effective 7-01-06), email addresses are public records. If you do not want your email address released in response to a public records request, do not send public records request to this entity. Instead, contact this office by phone or in writing.

APPENDIX D 3

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Law & Technology Judge tosses suit where boss texted witness

August 17, 2009 By: Deborah C. Espana

iami-Dade Circuit Judge Scott Silverman has dismissed a civil fraud lawsuit punctuated during trial by a boss who sent text messages to his

employee who was on the witness stand.

Sky chief executive officer Yizhak Toledano sent messages to the company’s chief financial officer, Gavin Sussman, while the judge and lawyers conferred in a sidebar conference at the bench. Silverman ordered a mistrial in May after learning from a spectator of the text messaging, and he dismissed Sky’s suit over the sale of a North Miami Beach condo tower with prejudice last week.

Toledano’s texting “was underhanded and calculated to undermine the integrity of this court and the legal process,” the judge wrote in his Aug. 11 dismissal order. “Regretfully, plaintiff through its unacceptable conduct has reached into the court’s quiver of sanctions, drawn the bowstring taut and aimed the arrow at the heart of its own case. This court has justifiably released the string.”

Silverman also agreed to award attorney fees and costs to the defense and referred the financial issue to a general magistrate.

When questioned, Sussman and Toledano admitted texting during the sidebar. The judge ordered the messages to be read aloud and into the record.

“Plaintiff waited until the court and the attorneys were preoccupied so that its conduct would go undetected,” the dismissal order said. “Plaintiff took what scant few moments it had to try to secretly sway the witness’ testimony.”

A basic trial rule prohibits people on the witness stand from communicating with anyone about their testimony until the questioning is completed.

Scott Silverman

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Page 1 of 2Daily Business Review: Texted witness

8/18/2009http://www.dailybusinessreview.com/Web_Blog_Stories/2009/Aug/texted_witness.html

APPENDIX D 4

Search the archive for more stories.

“Nothing this judge has seen holds a candle to plaintiff’s egregious and deliberate attempts to subvert our justice system,” Silverman wrote.

One message from Toledano to Sussman said: “We never filed a lawsuit against seller. These people developed the site 40 years ago, in 40 years and know every corner.” The second text said, “We maybe got this document after Sept. 7 when the bank discovered the problem.”

The incident wasn’t the only time Sussman was found to have engaged in improper witness communications. During a deposition two months before trial, Sussman wrote to the witness, “Don’t worry about pleasing him. Just say no.”

He was reprimanded by the magistrate.

Silverman said he factored that into the sanctions.

William Petros, a partner with Coral Gables-based Petros & Elegant, who represents defendant Vista View Development, said, “We think the judge accurately interpreted the conduct and is extremely appropriate under the circumstances.”

Norman Malinski of Aventura-based Norman Malinski P.A,, who represents Sky, did not return telephone calls by deadline.

Sky Development accused Vista View Development of fraudulently misrepresenting the number of two-bedroom units in the 308-unit Vista View apartment complex, which changed hands for $47.5 million in 2007.

“This case emphasizes the need for judges and attorneys alike to be vigilant and assure that helpful technologies, such as texting, not be misused,” the judge wrote.

Deborah C. España can be reached at (305) 347-6684.

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Page 2 of 2Daily Business Review: Texted witness

8/18/2009http://www.dailybusinessreview.com/Web_Blog_Stories/2009/Aug/texted_witness.html

APPENDIX D 5

Jurors Who Tweet, Blog, & Surf – Deciding and Discussing Your Case

James A. Edwards, Esquire

FLABOTA Meeting Long Boat Key, Florida July 2009

I. Overview of problem: Using a variety of devices, jurors are accessing the

internet to gather information about the cases they are deciding. Sometimes, it is a single

curious juror; other times the internet sleuthing takes on more importance than the

evidence presented in court. Jurors are also sharing their current jury experiences in real

time in almost a “play by play” manner. There have even been instances of jurors polling

their fellow internet users on how they should vote. Any chance that those jurors who

tweet, blog and surf could be causing problems in jury trials?

A. Civil cases: In Arkansas, a jury trial resulted in a $12.6 million judgment

against Stoam Holdings, a building products company. It quickly came to light that a

juror, Johnathan Powell, had been posting Twitter messages, known as “tweets,”

regarding the trial as the case proceeded. The defendant requested a mistrial, pointing to

a few particularly troublesome tweets: “oh and nobody buy Stoam. Its bad mojo and

they’ll probably cease to exist, now that their wallet is 12m lighter.” And, “So,

Johnathan, what did you do today? Oh nothing really, I just gave away TWELVE

MILLION DOLLARS of somebody else’s money.”

B. Criminal cases: After 8 weeks of a federal prosecution for alleged

irregularities in internet pharmacy sales, the court learned one juror was conducting

independent internet research. It seemed to Judge William Zloch that he could solve the

problem easily by dismissing the offending juror. However, when the panel was

questioned, it turned out that eight more jurors were also engaged in surfing the web

using their handheld phones, Blackberrys, or i-Phones. A mistrial was declared. Imagine

the public and private resources wasted. Imagine the unacceptable and unreasonable

APPENDIX D 6

prejudice to these parties and the rest of those whose trials were in line to be tried later.

United States vs. Hernandez et al, (Southern District of Florida Case No. 06-600027

(March 2009).

C. What were you thinking? Who me? Recent occurrences suggest that

jurors and potential jurors who are really into social networking, blogging and surfing the

web have no concept that they are doing anything wrong when they gather and share

information via the internet. In May of this year, Al Roker, the NBC Today Show

weatherman, was called for jury duty and began sending out a stream of tweets that

started the night before he was to report for jury duty and continued while he was in the

jury assembly room. His tweets included photos of his fellow potential jurors. When

some of his “followers” saw what he was doing, they told him directly that he shouldn’t

be doing it. His initial response was that he was doing nothing wrong, and that he had

been told only that he couldn’t take photos in the courtroom. Roker later realized the

errors of his tweeting, apologized on Twitter and on the Today Show. The twitpicking

(photos) were unposted.

D. Jurors confused about legal instructions? In Washington County,

Oregon, the trial judge received a note from the jury foreman, advising that one of the

jurors had used his home computer overnight to get clarification on what the legal

meaning really was of “implied consent” and “beyond reasonable doubt.” Another juror

in the same trial looked up the accuracy and validity of field sobriety testing. Rather than

requesting a mistrial, the defendant asked the judge to decide the case himself, resulting

in an acquittal, followed by a stern lecture to the jury. One jury consultant noted that the

jurors probably thought they were being helpful; they were stuck on an issue, they did

what came naturally – looked it up on the internet, and then shared the information with

their fellow jurors.

E. Basic premise of our legal system: The jury’s decision must be based

only upon a controlled, limited set of facts presented in court weighed against specific

legal standards provided by the jury instructions.

APPENDIX D 7

F. Fair trial concerns. Are these tech-savvy jurors threatening the

fundamental right to a fair trial by their independent internet activities? Is their over-

sharing overstepping the boundaries of proper conduct?

II. Gathering information: Web accessible information related to litigation. A. Google, MSN or AOL search engines that can lead to specific articles,

information on experts, law firm or company web pages, and other sources of

information.

B. General encyclopedic sites to gather basic to advance information. C. Governmental or quasi-governmental sources of information

1. Corporate information – who owns which and how many

companies; how is the company doing?

2. Criminal or police information

3. Court information about current or prior litigation

4. Tax or property appraisals and wealth

D. WebMD

1. Medical information on injury, disease, treatment

2. Medical information on testing

E. Legal research sites

1. Substitute for jury instructions

F. Google Earth and MapQuest

1. Conducting ex parte scene investigation

2. Viewing property related to parties, attorneys

3. Using MapQuest directions to evaluate speed, routes, and points of

interest that may or may not relate to why the defendant was at a certain location,

etc.

APPENDIX D 8

G. News reports or stories regarding subject matter on newspaper, television,

radio and pure web-based media web pages or sites. Regardless of when the report was

first released, it often becomes “permanent” if it remains available forever on the web.

1. Reports close in time to events, prior to time to really gather facts –

accuracy questionable?

2. Reports close in time to events that contain incorrect facts that

remain uncorrected.

3. Reports regardless of time that refer to matters excluded from trial

based on our rules of evidence.

4. Reports regardless of time that describe importance of case and

thus create the opportunity for Fifteen Minutes of Fame.

III. Wikipedia an informational stew with entries that can be created, edited and

criticized by anybody. Its accuracy and currency are openly questioned, yet it is

frequently consulted as authoritative by hundreds of thousands, if not millions daily. It

contains thousands of entries that could relate to a case being tried by any member of the

audience from medical treatment to estimation of speed through the analysis of skid

marks.

IV. Social networking and blogging defined. How they differ from traditional web

sites and from e-mail.

A. Traditional web pages or sites apparently created by authoritative

sources.

B. E-mail as a mode of communicating to what is intended to be a limited

audience. E-discovery has opened our eyes to the relative permanence of e-mail.

C. MySpace - Begun in 2003. Each subscriber gets a discreet page or site,

with its own URL (www.myspace.com/bigfishlaw) where he or she can post an almost

APPENDIX D 9

D. Facebook – Begun in 2004 for use by students at Harvard. Using a free

subscription, a user sets up a home page or “wall” which includes chosen information

about the user. Others can ask to be treated as the user’s “friend” and if the request is

granted, the posts made by the “friend” on the friend’s web site are automatically added

to the first user’s “wall.” Users post an avatar or image of themselves which may be

actual photographs or cartoons, drawings or stock clip art. Thus, by accessing a person’s

Facebook page, you can track not only what the user is discussing, often short messages

about daily events from going to a ball game to getting really drunk, but also whatever

the “friends” are posting. Photographs are often shared. Incredibly personal information

is often posted for the “friends” to see. Access to a person’s Facebook wall is

controllable by the user choosing various levels of security or clearance for different

“friends.” Ask any mother whether she has full access to her daughter’s Facebook, then

ask the daughter. Surprisingly often, users allows total strangers to become friends and

share information freely. It is a very convenient way to let your friends or family know

that you are on vacation and having a good time. Or to tell everybody that your baby has

just been born, and it is a boy. To tell your world of friends takes only a few seconds and

replaces the need to make multiple individual phones calls or individual text messages.

All your friends get the news as soon as you post it, both on your “wall” and on their own

“wall.” Which means everything you share with your “friends” is then shared with their

“friends” and so on. Personal information can be shared far beyond belief. Current

frequent or active Facebook users are estimated at 170 million.

E. Twitter - According to its website, “Twitter is a service for friends,

family and co-workers to communicate and stay connected through the exchange of

quick, frequent answers to one simple question: What are you doing?” The user

creates a personal account and profile. Once signed in, you tell the world what you are

APPENDIX D 10

F. YouTube – This site’s trademarked catch phrase is “Broadcast Yourself,”

and accurately describes what the site is about. Anybody can shoot video, upload it to

YouTube, describe it and make it available to the world. Those interested in a certain

topic simply enter search terms in the ever present search box, and then choose which

videos to view. To help the user, others have “voted” on the video, which may indicate

its quality or the frequency with which it has been viewed. Entering a variety of terms

related to “jury service,” “jury duty,” and “jury verdict,” returned more than a thousand

results ranging from “I have jury duty tomorrow” to “I am on jury duty” to “Jury returns

verdict against Westboro Baptist Church.” And of course, some lawyers are kind enough

to share their own triumphs on YouTube. These “jury duty” videos range from

documentaries to music videos, news format to comedic. Millions of people worldwide

visit YouTube daily to view a variety of content from current news of varying geographic

or topical importance to entertainment. Is there something on YouTube about your trial?

G. Blogs - There are several varieties of “blogs.” Originally the term “blog”

referred to the online equivalent of a single author’s journal in which he or she wrote

regarding something of interest to the author. Those blogs can be about certain topics,

such as matters of law, cycling, medicine, the author’s fascinating or boring life, etc.

Reportedly, a Boston physician being sued for malpractice was a frequent blogger, who

decided to blog before trial about defense strategies, his lawyer’s advice, tips from his

APPENDIX D 11

V. Problems that have happened or could arise in your next trial A. Prior to presentation of evidence

1. Jury pool, jury selection process. Roker admits mistake, keeps

Tweeting. Gothamist.com. J. Carlson, posted May 29, 2009. WHAT A TWIT: Al

Roker Sorry for Twittering Pictures of Manhattan Jurors, NewYorkPost.com,

May29, 2009.

2. Intentionally putting information out to jury pool. KevinMD.com

suggested in his August 2, 2007 blog that “Someone is posting deposition videos

on YouTube in an attempt to sway potential jurors in [a particular] malpractice

case.”

B. During presentation of evidence

1. On line research or investigation of facts, people, science, scenes.

Mistrial in U.S. v. Hernandez Federal Internet Pharmacy Trial,

InternetDrugLaw.com, posted March 25, 2009. Mistrial by iPhone: Juries’ Web

APPENDIX D 12

Research Upends Trials, J. Schwartz, NewYorkTimes.com, posted March 18,

2009

2. Writing messages, blogs, and/or tweets may encourage formulating

opinions prior to completion of trial, contrary to typical instructions. Mistrial

requested, but denied in federal corruption trial of former Pennsylvania state

senator Vincent Fumo. Mistrial by iPhone, supra. A Ventura County, California

jury foreman was held in contempt of court for blogging during a 19 day long trial

about the case facts, the judge and posting photographs of the murder weapon on

line. The convicted defendant included the blogging as an appellate issue. Juror

held in contempt for blog of murder trial, R. Hernandex, VenturaCountyStar.com,

posted January 23, 2008.

C. During deliberation phase of case

1. Seeking factual information. For example might a juror use

GoogleEarth.com to get a real life, detailed satellite photo of the accident or crime

scene? How can courts keep jurors from using Twitter, Google?

themorningcall.com, R. Yates and K. Amerman, posted March 30, 2009.

2. Obtaining opinion/community sentiment information. One twitter

tweeted, “Be Carona’s judge, what should ex-sheriff get?”

3. Seeking legal information or advice in lieu of jury instructions or

questions to the court. Jurors going on line to look up “implied consent” and

“beyond a reasonable doubt.” Juries raise a digital ruckus, OregonLive.com,

posted January 13, 2008.

4. Simultaneous blogs, tweets, YouTube, MySpace or email detailing

what is taking place during the current trial. Another tweet, “I’ll be twittering

Mike Carona’s sentencing from the courtroom on Monday, so log on.” One

blogger reportedly wrote, “Hey guys! I know jurors aren’t supposed to talk about

APPENDIX D 13

their trial, but nobody said they couldn’t LIVE-BLOG it, right? Am I right or am

I right?!” Watch Out for Blogging Jurors, T. Renaud, law.com, posted February

17, 2009.

5. Jury polls of web readers on how to vote. A juror serving on a

criminal trial involving charges of sexual assault was unsure how to vote during

deliberations. She posted a message on her Facebook wall, describing the case

and conducting a poll on how the case should be decided. Before the

deliberations ended, somebody alerted the court to her poll and she was excused.

British Juror Axed for Disclosure on Facebook, news.cnet.com, posted November

25, 2008.

D. Post trial disclosures and postings by jurors

1. Invasion of fellow jurors’ privacy and the secret nature of jury

deliberations.

2. Information provided which may be grounds for invalidating jury’s

verdict.

a. The jury foreman in a New Jersey slip and fall case was a

law professor whose post-trial article formed the basis of charges of the

professor unduly pressuring his fellow jurors to reach a certain decision.

The $876,000 verdict was reversed by the court of appeal. Lawyer-

Juror’s Article leads to Reversal of Judgment,

Lawprofessors.typepad.com, posted March 19, 2009.

b. Appeals panel voids conviction because of juror’s blog,

Northcountytimes.com, posted June 15, 2007. A California court of

appeals reversed a burglary conviction where a juror bragged in his blog

that he misled the lawyers and court about his profession, hiding the fact

that he was a lawyer and instead claiming to work for a tech company.

APPENDIX D 14

c. Murder verdict appealed blogging juror, J. Reinitz,

WCFCourier.com, posted March 18, 2009. A defendant convicted of

murder during a drug related robbery sought an appeal based on the fact

that an alternate juror blogged that she thought the defendant was a killer

as long as two years before reporting to jury duty.

V. Interaction between litigation sterility and jurors that tweet, blog and surf A. Balance legitimate communication needs against litigation fairness B. Jury instructions 1. Current instructions.

a. Florida Standard Criminal Jury Instruction 2.1 “During

these recesses you will not discuss the case with anyone nor permit anyone

to say anything to you or in your presence about the case.” “The case

must be tried by you only on the evidence presented during the trial in

your presence and in the presence of the defendant, the attorneys and the

judge. Jurors must not conduct any investigation of their own.

Accordingly, you must not visit any of the places described in the

evidence, and you must not read nor listen to any reports about the case.

Further, you must not discuss this case with any person and you must not

speak with the attorneys, the witnesses or the defendant about any subject

until your deliberations are finished.”

b. Florida Standard Civil Jury Instruction 1.1. “Consider

Only The Evidence. *** The law tells us that a juror can consider only the

testimony and other evidence that all the other jurors have also heard and

seen in the presence of the judge and lawyers. Doing anything else is

wrong and is against the law. That means that you cannot do any

homework or investigation of your own. You cannot obtain on your own

any information about the case or about anyone involved in the case, from

APPENDIX D 15

any source whatsoever, INCLUDING THE INTERNET (emphasis

added), and you cannot visit places mentioned in the trial.

2. Committees at Work. Consideration of new standard instructions

to specifically address internet gathering and sharing of information. The Florida

Bar’s Civil Jury Instruction Committee is taking this up in Miami at its July 2009

meeting. Meanwhile the Idaho Supreme court’s criminal jury instruction

committee is discussing new guidelines. (Twittering or Facebooking on an Idaho

jury? Not so fast…KBTV.com, posted March 28, 2009). Wisconsin state

officials are considering how to draft jury instructions aimed at keeping the

internet out of the jury room. (The move to silence juror Twittering,

wislawjournal.com posted April 20, 2009). Mississippi, Kansas, Pennsylvania

and many other states are addressing the need for specific jury instructions.

3. New or Proposed instructions. You should consider offering

your own instruction when you serve your requested jury instructions. One

excellent instruction currently used by Florida 9th Circuit Judge John Kest, a

fellow member of ABOTA and FLABOTA, should be considered for use around

the state:

“I know that most, if not all of you, have cell phones and that

many of those cell phones have computer access. I also suspect

that most of you are computer literate – certainly much more

than I am. I have cautioned you not to do any independent

research and that your verdict must be based on the facts you

hear in this courtroom from the witness box and the evidence.

Let me extend that caution. You are not to conduct any

independent research on computers, your cell phones, or in

any other manner. Not the old fashion kind in encyclopedias,

or the newer methods of “googling” and “tweeting” on your

computer based research tools. Lastly, you have been advised

not to discuss this case with anybody except your fellow jurors

APPENDIX D 16

and then only when you retire at the conclusion of the case to

deliberate. Therefore, you must not e-mail or otherwise

electronically contact other people about this case nor seek

their opinions, advice or even thoughts on the issues before

you.”

C. Dealing with devices, access and activity

1. At the courthouse. Federal courts in Florida routinely prohibit

cell phones, PDAs, Blackberrys, laptops, etc. any way. Based upon an informal

survey and personal experience, many judges in Florida tell jurors not to use their

devices during trial and many take them away during the actual deliberation phase

of the trial. That trend is being followed around the country.

2. Away from the courthouse. All that can really be done is to

instruct against it and question or confirm that there have been no violations of

that rule.

VI. Related social network and media litigation issues, for another time.

A. Using social media during jury selection

B. Using social media to tailor your case presentation to specific jurors

C. Using social media to follow what jurors are saying about your case

D. Judges who use social media to interact with parties, jurors

E. Lawyers who use social media to interact with jurors, judges, etc.

F. Blogging to market your law practice vs. to influence case outcome

James A. Edwards is an honors graduate of Auburn University and the University of Florida College of Law, a Board Certified Civil Trial Lawyer, A Certified Mediator, Member of ABOTA and FLABOTA, Member of The Million Dollar Advocates Forum and has been repeatedly recognized as a Super Lawyer in Florida. His 30 years of trial, appellate and mediation practice includes automotive and drug product liability, watercraft, dramshop, personal injury, wrongful death, legal and medical malpractice, commercial, real estate, aviation, bail bonds, class action, condominium and railroad litigation. He is an avid fisherman. He is a partner in the Orlando, Florida office of Rumberger, Kirk & Caldwell and may be reached at jedwards@rumberger.com.

121511636

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"Caldwell, Jr. , Dick" <dcaldwell@rumberger.com>

08/06/2009 12:57 PM

To "Ralph Artigliere" <skywayra@tds.net>, "Amy Pratt" <apratt@fisherlawfirm.com>, <twboyer@coj.net>, <rmercier@jkwpa.com>, <alanwagner@wagnerlaw.com>,

cc "Tracy Gunn" <tgunn@gunnappeals.com>, <bartonjm@fljud13.org>, "Jodi B Jennings" <jjenning@flabar.org>, <ajcconsultdestin@aol.com>

bcc

Subject RE: Jury Misconduct Subcommittee

All: here is another article on the issue. FYI

Home › Litigation News › Top Stories

Courts Wrangle with Twittering by JurorsBy Duchess Harris, Litigation News Student Intern – July 15, 2009

“we dont believe def. at lunch 9 guiltys . . . cant wait 4 closing args 2b ovr . . . more l8r.”

The above message is fictional, but the threat of wired jurors disrupting the trial process is real. The sheer reach and immediacy of the Internet constitutes a new threat to the legal process.

The continuing improvement of search tools, proliferation of microblogging sites like Twitter, and increased use of social communities like Facebook have introduced substantial new concerns that the legal system must take into consideration.

“Tweets” Coming from the CourtroomThe number of people who can be reached and the quantity of information—and misinformation—that can be generated through social media tools may well affect the outcome of a trial. At least two recent high-profile trials have seen juror “tweets” (short messages delivered to readers through Twitter) be the subject of post trial motions.

For example, one complaint in the post-verdict appeal of convicted Pennsylvania state senator Vincent Fumo was that a juror issued a tweet during deliberations. This was rejected in the court’s ruling [PDF] on Fumo’s post-trial motion.

In Arkansas, a $12.6 million verdict became the subject of a new trial motion after a 29-year-old Walmart photo lab manager posted eight tweets during the trial. Among those that the losing defendant found objectionable was a reference to 12 Angry Men made before the jury was even selected. The trial judge in Fayetteville rejected the post-trial motions. Apparently, while it may have been in poor taste to send text messages during breaks, “[i]t was not improper conduct.”

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The number of cases may seem isolated today, but the pervasiveness of the technology signals an increase. “When a compulsive Twitter user is selected as a juror, the temptation to ‘tweet’ about the experience may be too great to resist,” says Thomas Gilson, Phoenix, AZ, cochair of the ABA Section of Litigation’s Criminal Litigation Committee. “For someone who routinely posts electronic updates about what her cat is doing, it will be almost impossible for her to bite her virtual tongue and refrain from posting about a trial,” he adds.

Ardent social networkers may not consider their posts to be “communication.” As such, “a reminder from the judge as the jury is sworn [that twittering, etc. is a form of prohibited ‘communication’] may be a smart idea,” says Dori Ann Hanswirth, New York, cochair of the Section’s Trial Practice Committee. Depending on the stakes and courtroom nuance, a further reminder of the contempt remedy could be a useful deterrent.

There are other concerns about technology’s intrusion on the legal process. The ability of jurors to quickly look up information about a witness, a plaintiff, or defendant may well prejudice the juror’s perception of that individual. A verdict may be influenced, not by the evidence presented in the courtroom, but by “evidence” gathered online, perhaps from a source that is not legitimate.

Some courts have begun to act. The U.S. District Court for the Southern District of Florida, for example, has rules governing use of such messaging services from within the courtroom, though no express prohibition is included for nights/weekends. In Michigan, the Judicial Conference passed a rule barring juror use of the Internet during trial. The Michigan rule goes into effect on September 1, 2009. Seasoned ligitators expect that other courts are certain to follow.

Tips to Protect Your Case“Where you have voire dire available, consider asking questions about the potential juror’s use of social networking,” says David A. Soley, Portland, ME, cochair of the Section’s Trial Practice Committee. “If it is cost effective, consider if you monitor those sites during trial.”

The stickier question could be what to do if you learn a juror is an active social networker during your trial? Worse yet, what if you learn from his posts that he likes your client?

“If you learn about a substantive twitter during the case, weigh carefully your obligation to report it to the judge,” says Soley. You are an officer of the court, he cautions, and “[need to] remember your reporting obligation holds true regardless of whether the post is positive or negative for your client.”

Keywords: Juror conduct, social networking

From: Ralph Artigliere [mailto:skywayra@tds.net] Sent: Wednesday, August 05, 2009 5:13 PM

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To: Caldwell, Jr. , Dick; Amy Pratt; twboyer@coj.net; rmercier@jkwpa.com;alanwagner@wagnerlaw.com; lcbrown@co.palm-beach.fl.usCc: Tracy Gunn; bartonjm@fljud13.org; Jodi B Jennings; ajcconsultdestin@aol.comSubject: Re: Jury Misconduct Subcommittee

In working on an article for the Bar Journal with Judge Barton and Bill Hahn, we are in the early draft stages, but I asked Allan Campo to review it. Alan had some good ideas (in red). Please recognize it as just a draft and a work in progress. Allan thought the article would be a good "call to action." I think judges and lawyers will develop some good ways to deal with these issues to complement the standard instruction that SJI comes up with. Rather than getting "too long", consider providing the nuts and bolts and let the judges and lawyers dress it up as needed during prelim and voir dire. Another idea I had was to see if we can get OSCA and the supreme court to recommend instruction for all potential jurors in the jury assembly area, which has the advantage of getting them early and at a time where universal information on jury duty is appropriate. That would be a good time to explain common sense things like the fact that they are to limit contact about the case is an alternative to sequestration and is part of their duty. It may even be done as part of the jury duty video. Then the jurors will be conditioned to it before they come to the courtroom. The disadvantage of the jury assembly area is that jurors may or may not be paying attention (less control) and it's not on the record. Ralph----- Original Message ----- From: Caldwell, Jr. , Dick To: Amy Pratt ; skywayra@tds.net ; twboyer@coj.net ; rmercier@jkwpa.com ; alanwagner@wagnerlaw.com ; lcbrown@co.palm-beach.fl.us Cc: Tracy Gunn ; bartonjm@fljud13.org ; Jodi B Jennings ; ajcconsultdestin@aol.com Sent: Wednesday, August 05, 2009 4:53 PMSubject: RE: Jury Misconduct SubcommitteeThanks, Joe, for agreeing to head this up. The last item of the attachments is Allan Campo's revisions to the draft instruction I had put together, and I'd recommend we use that as a starting point. Judge Brown's e-mail commented that the draft was probably too long, and when my partner Jim Edwards presented the issue to the FLABOTA meeting recently, the response was pretty much the same: the instruction was too lengthy. Allan had similar thoughts. Everyone I've spoken with or heard from has indicated that the existing instruction is inadequate, as demonstrated by some of the incidents related in the attachments. There seems to be agreement that we need to enhance what the instructions currently tell the jury about the prohibitions against internet usage. With this consensus, seems like we need to look at how we can cut the wording of the draft down, without sacrificing the clarity and force of what the instruction is trying to get across. I would favor making the language as strong as possible. Judge Kahn's comment was true, but even in the Panhandle few people carry guns around with them constantly. Conversely, most potential jurors will be accustomed to using cell phones with internet capability, Blackberrys or other hand-held computers, etc. It's probably unnecessary to tell jurors not to bring guns to court, but the internet use instruction needs to really get the jurors' attention that, no matter what their custom may be, they just can't use online

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services with respect to the trial. I'm open to any method of proceeding. From: Amy Pratt [mailto:apratt@fisherlawfirm.com] Sent: Wednesday, August 05, 2009 3:52 PMTo: skywayra@tds.net; Caldwell, Jr. , Dick; twboyer@coj.net; rmercier@jkwpa.com; alanwagner@wagnerlaw.com; lcbrown@co.palm-beach.fl.usCc: Tracy Gunn; bartonjm@fljud13.org; Jodi B Jennings; ajcconsultdestin@aol.comSubject: Jury Misconduct Subcommittee

(Sent on behalf of Joe Amos) Gang:

We are the "jury misconduct" subcommittee formed at last month’s meeting. For easy reference and to frame/start our discussion, I have attached all e-mails, articles, commentaries, etc. circulated on the subject. (I may have overlooked something, so please speak up if I did.)

Ralph recently described this subject as interesting and important. I could not agree more. In the last six months, I have had personal experience - in two separate trials - of potential hazards of juror "communication with the outside world." One involved the press and the other cell phone distractions.

Briefly, to summarize discussions at the last meeting (again, those there please add to and supplement this), the concerns voiced included:

a. Preventing/admonishing jurors from research (outside, Internet, etc.), discussion of the case with family and friends, and the like; and

b. The distractions and "lack of attention" issues caused by PDAs, cell phones, iPods.

We had a lively discussion, and even our judge members seemingly had different approaches and "pain tolerances" for mobile information/communication devices. I especially recall and enjoyed Judge Kahn’s observation: "I know a lot of folks in my part of the state that love their guns, but we don’t let them into the courthouse!"

To my mind the discussion was positive and productive, and posed some of these questions:

1. As a committee, what is our role and goal relative to this subject?

2. Do we strengthen the already existing instruction? If so, how?

3. Is cell phone use/access (during voir dire, trial and deliberations) really a judicial administration issue?

4. Relative to question number 3, how far do we go to accommodate prospective and sworn jurors?

5. How do we educate and raise awareness on the topic, acknowledging cell phone use, texting, PDA research, etc. will only likely increase.

Now, how does our group wish to proceed? Initial e-mail discussion, and then a conference call in a few weeks? I can coordinate and place the call.

Please get me your thoughts and suggestions. Tracy and Jim, you too.

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Tracy, I assume the larger committee will want a subcommittee report for October’s meeting.

Thanks again everyone.

Joseph L. Amos, Jr.Fisher, Rushmer, Werrenrath,Dickson, Talley & Dunlap, P.A.20 N. Orange Avenue, Suite 1500P.O. Box 712Orlando, FL 32802-0712(407) 843-2111 (main office)(407) 535-4868 (direct telephone)(407) 535-4795 (direct fax)

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Reining in Juror Misconduct: Practical Suggestions for Judges and Lawyers

By Ralph Artigliere, Jim Barton, and Bill Hahn

Juror misconduct1 is not just a recent problem.2 Despite instructions from trial judges to the contrary, jurors have been too often tempted to access information from outside the courtroom.3 Years ago, one solution to elimination of outside influence on jurors was sequestration of jurors. Sequestration is still used in non-capital criminal cases in Florida at the trial court’s discretion and is required in death penalty cases, absent waiver or special circumstances.4 In civil cases, however, economics, not to mention inconvenience and discomfort of jurors, all but eliminated sequestration as a viable method to prevent contact with the outside world .5

Why is juror misconduct on the rise? Consider the setting for today’s jurors. Most jurors enter a place and a system they know little about, except through cultural sources of the press, television, movies, and now the digital media. Many of them, perhaps most, will have at least a cell phone, and an increasing number of jurors will have equipment and habits that keep them in audio, text, and visual media contact with the world and other people through phone or internet. Some will be extremely attached, to the point of dependence, on their phone, iPod, Blackberry, or other device; a form of behavior that is a product of relatively recent cultural shifts and is fully understood only by others with similar techno-savvy skills and behavior. Many judges and lawyers know little about the motivation, capability, or dependence of such jurors on their equipment.6 Some jurors will want to text what they are doing at any given moment, and why they are doing it, to friends, family, and thousands of strangers. To say that current jurors have temptation and capability to communicate with the outside world about the trial that far exceeds even recent history is the understatement of our still young century. Jurors have the capability to instantaneously tweet, blog, text, email, phone, and look up facts and information during breaks, at home, or even in the jury room if they are allowed to keep their digital windows to the world. Jury instruction by the judge about communication outside the courtroom has not kept pace with technology.7

The problem of outside influence on jurors is no longer confined to high profile cases that are covered in the press or other media. Courtroom misconduct seems to be everywhere! Recently, a witness in Miami was discovered texting his boss about his testimony during a sidebar conference resulting in a mistrial;8 nine of the jurors on a deliberating panel in the Miami federal case of U.S. v. Hernandez 9 admitted to the judge that they had been doing research on the case over the internet resulting in a mistrial;10 a juror during deliberations in a federal corruption trial in Pennsylvania posted his progress during deliberations on the internet resulting in a motion for mistrial;11 a juror in Bartow looked up a defendant’s “rap sheet” on line and told fellow jurors, resulting in a mistrial; and Florida jurors in a criminal case made anti-Semitic comments to each other and consulted one of the jurors’ accountant during deliberations.12 In

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the Hernandez trial, the judge learned that the jurors were: “Googling” the lawyers and the parties; finding news articles about the case; researching definitions and information on Wikipedia; and looking for evidence that had been excluded in the case. All this was accomplished despite the judge’s repeated instruction to not do so.13 These examples represent recent transgressions that were discovered, and probably represent just the tip of the iceberg.

Another dilemma is that jurors digitally linked to the outside world may receive unsolicited information relating to the trial from friends and family who know about their jury service. They may receive text or email questions about how the case is going or whether it is interesting. Outsiders thinking they are being “helpful” may forward articles or other materials they have found on the Internet to jurors. Texts or tweets may include unwanted advice or input of the “hang that crook!” variety. It will be hard for the juror to NOT read such incoming material. Thus, a juror who does not intend to go looking for information or influencing commentary from others gets it anyway.

Improper juror communication and research is only part of the problem. Another insidious type of juror misconduct is misrepresentation or disinformation provided to the judge and lawyers in qualification and voir dire. Deception during voir dire deprives the examining attorneys and the judge of the opportunity to obtain accurate information for challenges for cause and peremptory challenges. The level of deception ranges from jurors who hide or gloss over information to avoid embarrassment or puff their qualifications on the one hand, to “stealth jurors” on a mission and willing to lie to get on the jury in order to carry out an objective for or against one of the parties. Regardless of motive, jurors who betray their oath as jurors subvert the jury system and threaten the fairness of the process.

Remedies for Juror Misconduct are Inadequate

When discovered, juror misconduct raises the potential of a mistrial or new trial.14 The parties have a fundamental right to a proper jury, and juror misconduct invokes issues of fairness and due process.15 However, before granting a new trial, the trial judge and lawyers must accurately get to the bottom of the circumstances of misconduct through investigation and interview of the juror or jurors if necessary.16 Where the claimed misconduct involves improper juror research, under the Evidence Code the court must determine whether the misconduct was inherent in or external to juror deliberations.17 A juror interview will not be granted unless the judge determines that the movant’s affidavits establish that juror misconduct occurred as a result of some outside influence such as the receipt of non-record evidence. The result of the juror interview must confirm actual juror misconduct involving an external influence to merit a new trial.18

For alleged juror deception during voir dire, the judge must apply a three part test set forth in the Florida Supreme Court case of De La Rosa v. Zequeira:19 “[T]he complaining party must establish: (1) the information is relevant and material to jury service in the case; (2) the

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juror concealed the information during questioning; and (3) the failure to disclose the information was not attributable to the complaining party's lack of diligence.”20 Intentional or not, deception during voir dire, warrants a new trial only if counsel was prevented from making an informed judgment that likely would have led to a peremptory challenge.21

The very real problem is, even if the illegal behavior is discovered, and if the Court can be convinced to interview jurors, and if the De La Rosa standards or outside influence are established, the remedy is a new trial, an unhappy and costly outcome for both sides. Without question, the best solution is to prevent juror misconduct in the first place, or at least reduce its incidence as much as possible.

How to Head off Juror Misconduct

Juror misconduct may occur intentionally or through juror ignorance or oversight. Perhaps better, clearer, and more comprehensive jury instructions would help motivate most jurors to avoid mistaken misconduct. Of course, regardless how clear an instruction is, it may not be enough to prevent intentional misconduct. Jurors need to know the consequences of their misconduct. Toward that end, the standard jury instructions already reference perjury during voir dire.22 Moreover, in a letter dated August 26, 2009, Justice Fred Lewis requested that the Florida civil and criminal jury instruction committees consider and jointly propose a “uniform approach [to the problem of electronic communications and research by jurors during the case] along with uniform jury instructions to be used in all cases” by January 11, 2010. In his letter, Justice Lewis referenced a new Michigan rule requiring the judge to instruct against the use of electronic devices at the time the panel is sworn.23 It remains to be seen what results from this request.

In the meantime, should the judge or parties do more? For example, the judge or lawyers could inform the jurors that the lawyers will be checking on them to see whether jurors were truthful in voir dire. The disadvantage is the potential of creating a hostile atmosphere in court, where such does not need to exist. Who wouldn’t feel uncomfortable with such a representation? Likewise, specifically delineating what activities are prohibited may be counterproductive. First, the off-limits behavior may not otherwise occur to jurors until the judge raises it. By instructing on what not to research, jurors may speculate on what the judge and lawyers are keeping from them.24 Worse yet, some jurors may experience what has been termed the “reactance effect” where it is thought that by denying jurors freedom causes them to try to obtain the forbidden information.25 That approach could result in conjecture or, worse yet, suggestion of research for jurors subject to temptation. Judicial instruction should be tempered with these potential down sides in mind. But something can and should be done to improve judge and lawyer communication with jurors about juror misconduct.

This article suggests tempered enhancement of the standard jury instructions and practical methods for judges and lawyers to clearly express to jurors what is expected of them.

Formatted: Indent: First line: 36 pt,Don't adjust space between Latin andAsian text

Deleted: S

Deleted: 26

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Good communication with jurors is more than words: it is timing, delivery, and creating the best climate for juror acceptance of the message. Jurors should hear the message, understand it, and be motivated to follow the instructions. This goal is best accomplished if the jurors are as comfortable as possible, and the judges and lawyers present a congruent and clear message with reasonable and consistent reminders throughout the trial. It helps if the judge tells jurors they will be held accountable for their behavior without threat or intimidation. And yes, all of this instruction needs to fit in the context of all the other important things the jurors need to hear about the case, because brevity and scale are important.

Practical Ways to Prevent Juror Improper Communication and Research

Judges around the state take differing approaches in addressing juror misconduct. In the end, every judge and lawyer must employ the tools and use words that fit their character, personality, and ability, but some approaches that stand out are mentioned here. Regardless of the measures taken in court, jurors will have their equipment plus their computer and other temptations outside the courtroom during overnight and other recesses. Nonetheless, some judges have started to remove distraction and temptation during court time and deliberations by taking charge of jurors’ phones, iPods, and other devices.27 To alleviate juror anxiety, these judges give jurors an emergency court telephone number so loved ones can reach them in a true emergency. Other judges simply require electronic equipment to be turned off in the courtroom and to be turned in to the bailiff during deliberations. Some judges are still reluctant to take charge of the juror’s property and lifeline to their loved ones at all and instead admonish jurors against improper use of the equipment in trial and in deliberations. It is hard to see how allowing electronic equipment during deliberations squares with removal of magazines, calendars, calculators and other sources of information from the jury room. Many “phones” have calculators and access to far more potentially damaging information on the Internet, not to mention the distractions of email, games, and phone contact while jurors are trying to deliberate.

What is the correct message to send jurors about research and communication? Part of the answer of course is already in the standard jury instructions. A few years ago the word “internet” was added to combat the danger that jurors may go beyond the traditional media to a bountiful and available source of interesting information about the parties, lawyers, judge, or the case.28 Basically, jurors are told not to talk with anyone about the case or allow anyone to talk with them, not to talk to each other about the case, and to not read or hear or look up anything from any source outside the courtroom, including the internet.29 Does that mean jurors should not put their experience on Facebook as it unfolds? Can they text it to friends and tell recipients not to respond? Clearly, all of this is off limits, but some jurors seem to transgress all the time these days. Do they know they are doing wrong?30 Can we do a better job of communicating? Can we remove some of the temptation? Yes we can.

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There are probably more complete instructions that can be given to today’s juror than our current standard instruction.31 The Florida Supreme Court Standard Jury Instruction Committee (Civil) is already working on enhancements to the standard instructions to arm judges with clear, concise, plain English, more comprehensive instructions to combat what seems to be a wave of juror misconduct.32 But standard instructions take time for drafting, presentation to the court, publication to The Bar, and consideration and acceptance by the Supreme Court. Thus, even apart from the standard instructions, judges and lawyers can prepare and use their own instructions to address this problem, as long as they are consistent with the law (if not objected to) or deemed necessary and appropriate for the case by the judge and justified as such in the record.33

Some judges are already enhancing the standard instructions on their own. For example, Judges Lucy Chernow Brown, 34 Jennifer Bailey, and John Kest35 have been giving more detailed instructions about use of the Internet and the telephone.

Many judges employ repetition in the form of brief reminders during the trial. For example, the judge may tell jurors early on that he or she will be checking back with them to make sure they have been following instructions. Then the judge follows up by briefly reminding before, or questioning after, certain recesses or all recesses, depending on the length of the trial and the judge’s feel for the jury. The judge, after greeting the jurors can simply ask, “Have you been able to follow all my instructions, including not discussing the case and not doing any research? Has anyone contacted you or have you contacted anyone or done any writing or research on the case?”36

Some judges tell jurors why it is important to follow the instructions. Many Americans respond better to direction if they understand the reason why the requirement is placed on them. The judge may briefly explain sequestration and how it was used in the past to prevent outside influences from the jurors. Then the jurors are told that, instead of sequestration, we rely on the jurors as part of their duties to remain free from outside influences and information. This admonition places on the jurors themselves the responsibility to keep free from outside influence. Further, just prior to swearing the jury the judge can once again explain the instructions the jurors must follow about equipment, communication, and research in detail, ask if there are any questions, and then ask if any juror cannot follow the instructions throughout the entire trial. Getting individual responses from each juror emphasizes the requirement and commits each juror about as well as can be done. Another tactic is to “empower” all jurors to report transgression by informing them of their duty to report any violation of the court’s instructions, including any communication of any juror with the outside about the case or any attempt to bring into court information from outside the trial.

If there is a concern about incoming messages during trial, perhaps judges could give jurors the following suggestion for an outgoing email, text, and/or tweet that they can

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immediately send to friends and family right after they are sworn in: “I am sending this note to you as instructed by Judge _____. I am now a sworn juror in a trial. I am sequestered. This means I am not allowed to read or comment upon anything having to do with the subject of the trial, the parties involved, the attorneys, or anything else related to my service as a juror. Please do not send me any materials; don’t email, text, or tweet me any questions or comments about this case or my service as a juror. Please do not text or email me during the course of this trial except in an emergency. I will send you a note when I am released from my duty as a juror.” Jurors could leave a variation of this message as the greeting in their voice mail during their service, including an emergency number for use by a caller when warranted. They could then turn off their phones as long as necessary.

Most of all, judges and trial lawyers should regain control by changing the fabric of jury duty. Jurors should be required to take personal responsibility for “sequestering” themselves and for ensuring that the jury as a whole performs its duty untainted from influences outside the trial. The goal is to eliminate inadvertent misbehavior and reduce intentional misconduct as much as possible. Clear instructions, reducing temptation, motivating and empowering jurors are steps toward the goal.

How to Minimize Juror Misconduct during Voir Dire

Both sides suffer from trying a case twice when a jury member has intentionally withheld information that would have resulted in either a cause or peremptory challenge. Worse yet, the misinformation may not be discovered, or if it is, the imperfect system for remedy does not result in a new trial. This is not a new problem, and it continues to occur. We live in a culture where media figures on one side or another of a cultural debate may incite listeners or viewers to get on juries to achieve their social agenda through their verdict. These potential jurors are coached to not disclose strong feelings they may have about certain subjects even if the lawyers ask about them. Lawyers term such jurors as “stealth jurors” who remain “under the radar” of the lawyers and judge. Certainly, some jurors inadvertently withhold information, a problem that is no less toxic to a fair trial37 but one for which there are clearer and more direct solutions.

Dealing with the lesser of two evils first, how can trial lawyers and judges prevent or at least reduce as much as possible inadvertent nondisclosure? As a start the judge needs to give the standard instruction which gives the breadth and consequences of responsibility for telling the whole truth by honest answers and not leaving the wrong impression through failing to respond.38 When explaining the voir dire process to jurors, the judge should instruct the venire to make sure that they understand the questions, and if not, to ask for clarification. The venire should be informed that if they have a doubt about whether to disclose something, that they should make the disclosure, and let the judge or lawyers sort out whether it is important or not. Finally, a technique that one of the authors of this article, retired Judge Ralph Artigliere, used in voir dire was to tell jurors “there is no such thing as ‘forever hold your peace’ in a trial. Even

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after giving an answer, if something someone else says jogs a memory or a more complete response, tell us about it. This is true any time up to the end of the case and beyond. The accuracy of your answers is that important. For example, we will read you a list of witnesses’ names to see if you know any witness. Let’s say you don’t recognize the name of a witness until the witness appears in trial a couple days from now and you then realize you know the witness. You should tell us then and there to correct your answer.” This approach does two things: it encourages jurors to correct mistakes in their answers, and it emphasizes the importance of absolute truth in the process.

Trial lawyers can help avoid problems with inadvertent nondisclosure by conducting crisp, pertinent, and thorough questioning. Lawyers who ask unnecessary questions distract and annoy jurors and the judge. This makes it less likely that the judge will be tolerant of extended or somewhat repetitive questioning when the lawyer feels it is necessary. If every juror is polled on general issues (such as “Can you be fair and impartial?”), or on issues the judge has already covered, voir dire will be lengthy, boring, and ineffective. Save individual polling of each juror for the important information. If there is any inkling of a juror missing the point of a question, the lawyer must diligently pursue the matter until it is clear the juror understands the question and is being responsive. Doing less may not only fail to elicit the answer you need to make a challenge, it may eliminate your remedy under the third prong of the De La Rosa test, in which the failure to disclose must not be a result of a lack of diligence on the part of the requesting party.39

Discovering and eliminating a juror who is on a mission is an art for trial lawyers, as they must look for subtle clues and inconsistencies to ferret out what the juror will not tell them. The judge can be of assistance in this difficult task in a number of ways. First, a juror may be more forthcoming if questions are coming from the judge rather than the lawyer (whom a juror may tacitly dislike and distrust). For example, if the issue is how a juror feels about personal injury attorneys or lawsuits, the juror may be more inclined to discuss the issue when the judge asks the questions, especially if the judge is asking the question of the entire panel with follow-up when some jurors give their honest response.40 Depending on the judge, lawyers may request that certain sensitive questions be put to jurors, at least at first, by the judge.41 This subject should be discussed and resolved at the pretrial conference.

Second, the judge must give the lawyers sufficient time in voir dire to thoroughly deal with weighty issues. Lawyers can help the judge make the right decision on time allotted by not wasting time, by clearly expressing far enough in advance why a certain amount of time is needed for voir dire, and by requesting additional time during voir dire as soon as unexpected complications arise. If the judge is going to limit time in voir dire, the limits must be reasonable and should be announced at the pretrial conference.42

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Finally, in the interest of a fair trial, the judge and lawyers need to be cognizant of incongruent behavior or responses with regard to key issues. Uncovering, or even sensing, answers that do not square with other responses, or behavior such as facial expressions inconsistent with answers to certain questions or cooperation with one attorney and hostility toward another should lead to further questioning and, if necessary, a peremptory challenge. If the behavior is acknowledged for the record by the judge, request a challenge for cause or an additional peremptory challenge.43

Another approach during voir dire is for the trial lawyer to remind the jurors what the judge said in the beginning about truthfulness, the consequences of untruth, and the fact that an incomplete answer or lack of an answer can be just as much of an untruth as a false answer. If necessary, the trial lawyer can inform jurors that whoever loses in the case will investigate the answers given by the jurors to see if they were truthful. This seems drastic, but it may get some jurors’ attention. The only question is whether the lawyer believes the down side of telling the juror about post verdict investigation will do more harm with the jurors as a whole than it will help eliminate a less than truthful juror.

Regardless of the care taken by judge and trial lawyers, stealth jurors with coaching or knowledge of how to avoid giving answers that will cause them to be taken off the panel may make it to the jury. For that reason, some lawyers inform jurors that each one of them has a duty to not be influenced by anything outside the evidence in the case. They encourage the jurors to disclose any improper conduct of fellow jurors when it occurs, including information about a juror that they may learn that is not consistent with what the juror said in voir dire. Again, this is drastic. Whether it is worth the risk is up to the lawyer. If it draws an objection, some judges may not like the way the message is delivered, if not the underlying message. One can always discuss the issue with the judge first.44

Planning for Success

By now it should be clear that the authors consider addressing juror misconduct to be a team affair involving the lawyers and the judge. Lawyers should find out about the judge’s propensities and preferences in advance from colleagues and by raising specific issues on the subject at the pretrial conference. Prepare requested jury instructions in advance and ask the judge to be proactive in heading off potential misconduct. Trial lawyers and judges should share methods that work and warn of those that do not, both informally and in judicial and continuing legal education conferences. Failure to consider and adapt to the evolution of cultural and technological impacts on juror behavior risks your case being one of the examples of unnecessary injustice and cost.

CONCLUSION

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Because juror misconduct threatens the fundamental fairness of the trial and is a due process issue, judges and trial lawyers should consider methods supplemental to the current standard and routine jury instructions throughout the trial. Practical methods to reduce juror temptation, such as taking away cell phones and other digital devices during deliberations, are needed in light of the current culture and technology that constantly connect jurors to other people and the internet. Clear, strong instructions with follow up and reminders from the judge and the lawyers that clearly define right from wrong and disclose the consequences to jurors are part of the solution to reduce as much misconduct as possible. While the standard instructions are being considered for revision, judges and lawyers must be attuned to ways to minimize intentional or unintended behavior, which, left unchecked and unaddressed, will undermine fairness of our jury trials. Judges and lawyers who learn better ways to address these issues should share them with the rest of us with the common goal of eliminating as much juror misconduct as possible from our trials.

                                                                 1 For purposes of this article, juror misconduct is intentional or unintentional behavior by jurors in contravention of jury instructions, including (i) exchanging information about the case with persons or sources outside the courtroom or jury room, or (ii) providing misinformation or disinformation during voir dire.

2 Miami v. Bopp, 158 So. 89 (Fla. 1934)(order granting new trial affirmed where jury verdict was influenced by consideration of matters outside the evidence brought about by unlawful and illegal means).

3 See Keene Bros. Trucking, Inc. v. Pennell, 614 So. 2d 1083, 1084(Fla. 1993)(juror who was an accountant brought an accounting textbook into jury room and referred to it during deliberations resulting in a mistrial).

4 See Fla. R. Crim. P. 3.370.

5 If jurors are to be sequestered, the pool of available jurors decreases substantially, and those who participate tend to develop personal problems that lead to departure from the jury, increasing the chances of a mistrial. Change in our culture caused sequestration to fall into disuse in Florida civil cases and elsewhere. In Arizona, for example, a court committee on jury management found that no one could remember sequestration occurring in the past 20 years. See http://www.supreme.state.az.us/jury/Jury2/jury2n.htm#. Sequestration has fallen into disfavor because the disadvantages outweigh the advantages. Sequestration, American Judicature Society website: http://www.ajs.org/jc/juries/jc_privacy_sequester.asp citing Marcy Strauss, "Sequestration," 24 Am. J. Crim. L. 63 (1996). But see State ex rel. Miami Herald Pub. Co. v. McIntosh, 340 So. 2d 904, 910(Fla. 1976)(“ inconvenience suffered by jurors who are sequestered to prevent exposure to excluded evidence which may be published in the press is a

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small price to pay for the public's right to timely knowledge of trial proceedings guaranteed by freedom of the press”).

6 Surely there are judges on Facebook and MySpace, and probably quite a few lawyers carry Blackberries or iPhones and tweet and text with the best of them. But many still do not and are not connected to cutting edge equipment and cultural habits. By contrast, for some jurors, staying in constant touch with family, friends, and thousands of strangers is a habit. A great many jurors will have mobile research and communication capability that was only a few years ago available only from fixed facilities.

7 In 2006 the Florida Supreme Court approved changes to the Standard Jury Instructions in Civil Cases adding the words “including the Internet” to prohibitory language regarding research in Preliminary Instruction 1.1. In re Standard Instructions in Civil Cases, 943 So. 2d 137 (Fla. 2006). However, Instruction 1.1 is not given until after voir dire is completed and the jury is empanelled and does not specifically address all the current methods of improper communication. The Civil Standard Jury Instructions Committee recently formed a subcommittee to consider additional changes to address the apparent increase in improper juror communication and research. Meanwhile, judicial education and common sense have led judges on their own to exercise their discretion to develop more specific and detailed instruction for jurors on improper communication and research. See endnotes 33-34 below.

8 Roberts, Alana, Mistrial Declared Over Witness Texting, Daily Business Review: www.dailybusinessreview.com/Web_Blog_Stories/2009/May/Witness_texting.html (May 15, 2009). According to the article, the witness’ boss was in the courtroom when the texting occurred and the boss admitted to texting the witness twice. After declaring a mistrial and holding further hearing, the trial judge dismissed the case with prejudice and awarded fees and costs to the Defendant as a sanction for the party’s intentional misconduct of witness tampering. See the unpublished Order Granting Defendant’s Motion to Dismiss and Motion for Attorney’s Fees and Costs, Case No. 07-32308-CA06 (Fla. 11th Jud. Cir. August 11, 2009)(Silverman, J.).

9 United States vs. Hernandez et al, U.S. Dist. Ct. S.D. Fla., Case No. 06-600027 (March 2009).

10 Schwartz, John, As Jurors Turn to the Internet, Mistrials are Popping Up, N.Y. Times:

http://www.nytimes.com/2009/03/18/us/18juries.html (Mar. 18, 2009).

11 Id. The juror reportedly told his internet readers that a “big announcement” was coming up Monday.

12 The Florida Bar v. Heller, 473 So. 2d 1250, 1252 (Fla. 1985)(Boyd, C.J. concurring). Chief Justice Boyd described the following “shocking” undisputed jury misconduct during an underlying criminal jury trial: “(1) During the trial, several of the jurors made comments

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showing a substantial anti-Semitic bias. These jurors ridiculed respondent, his attorney, and several of his witnesses because they were Jewish. One of the jurors made a comment using words to the effect that respondent was ‘a rich Jew. I say let's hang him.’ There were other comments like this, including not only ethnic slurs against Jews but also anti-black racial slurs. (2) Not only did the jurors improperly discuss the facts of the case before hearing all the evidence, but they also expressed their opinions about guilt-or-innocence before hearing all the evidence. The facts alleged by respondent raise a strong inference that the jury prejudged his guilt, in large part because of the religion-based antipathy referred to above. (3) One juror consulted an accountant, a complete stranger to the case, on a question of accounting practice which the juror thought was relevant to the issues, received an answer and reported the extraneous information to the other jurors. There is no way of knowing how this highly improper information affected the jury's deliberations.”

13 United States vs. Hernandez et al, U.S. Dist. Ct. S.D. Fla., Case No. 06-600027 (March 2009).

14 Fla. R. Civ. P. 1.530; Fla. R. Crim. P. 3.600: De La Rosa v. Zequeira, 659 So. 2d 239 (Fla. 1995)(non-disclosure of prior litigation by juror during voir dire merits new trial); State v. Matzov, St. Petersburg Times, August 5, 2009 (mistrial declared in murder trial after jurors admitted discussing evidence).

15 Kelly v. The Comm. Hosp. of the Palm Beaches, Inc., 818 So. 2d 469, 476 (Fla. 2002).

16 The ethical and procedural rules for post-verdict interviews of jurors must be strictly followed. Fla. R. Civ. P. 1.431(h); Fla. R. Crim. P. 3.575; Rules of Professional Conduct, 4-3.5(d).

17 “Upon an inquiry into the validity of a verdict or indictment, a juror is not competent to testify as to any matter which essentially inheres in the verdict or indictment.” Fla. Stat. §90.607(2)(b)(2009).

18 Baptist Hosp. of Miami V. Maler, 579 So. 2d 97, 100 (Fla. 1991).

19 659 So. 2d 239, 241(Fla. 1995)

20 Kelly, 818 So. 2d at 474.

21 Id. at 475.

22 “You [will take] [have taken] an oath to answer all questions truthfully and completely and you must do so. Remaining silent when you have information you should disclose is a violation of that oath as well. If a juror violates this oath, it not only may result in having to try the case all over again but also can result in civil and criminal penalties against a juror personally.” Fla. Std. J. Inst. 1.0. Not all judges give the Standard Instruction. Pursuant to Fla. R. Civ. P. Form 1.985, the parties are entitled to the standard instruction if requested, and if the judge fails to give the

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standard when requested by a party, the judge must make a finding on the record why the standard instruction was not adequate for the given case and the legal basis for the finding. It would be unusual for a judge to refuse to give the standard instruction The standard instruction is entirely consistent with the law of juror misconduct. “It is the duty of a juror to make full and truthful answers to such questions as are asked him [on the voir dire], neither falsely stating any fact nor concealing any material matter, since full knowledge of all material and relevant matters is essential to the fair and just exercise of the right to challenge either peremptorily or for cause. A juror who falsely misrepresents his interest or situation, or conceals a material fact relevant to the controversy, is guilty of misconduct, and such misconduct, is prejudicial to the party, for it impairs his right to challenge". Loftin v. Wilson, 67 So. 2d 185, 192 (Fla. 1953).

23 See Rule 2.51, Michigan Court Rules (amended June 30, 2009). The Supreme Court Florida

Standard Jury Instruction Committee (Civil), of which two of the authors are members and one author is a former member, is undertaking the task of modifying the standard instructions to address some of the issues raised in this article.  

24 Jurors often believe that one or another of the parties is trying to keep important evidence out of the case and that they are not being told the “real” truth.

25 Posey, Amy and Wrightsman, Lawrence S., TRIAL CONSULTING, at p. 145 (Oxford Univ. Press 2005).

27 Judge Kest in Orlando alleviates the problem of witnesses accessing information on the stand (endnote 6 above) by requiring witnesses to leave cell phones and communication devices on a small table just inside the bar as they approach the witness stand.

28 “You cannot obtain any information on your own about the case or about anyone involved in the case, from any source whatsoever, including the internet….” Fla. Std. J. Inst. 1.1.

29 In re Std. Jury Inst. in Civil Cases, 943 So. 2d 137 (Fla. 2006).

30This year while on jury duty, TV Weatherman Al Roker tweeted his jury duty experience to others, including pictures of fellow jurors. Roker said he did not realize he was doing wrong. Dareh Gregorian, Oh What a Twit: Tweeting Roker Sorry for Taking Juror Pix, The New York Post (May 29, 2009).

31 As part of their “plain English” initiative in jury instructions, California now has the following instruction on the subject of juror communications with others during trial: “Before we begin, I need to explain how you must conduct yourselves during the trial. Do not allow anything that happens outside this courtroom to affect your decision. During the trial do not talk about this case or the people involved in it with anyone, including family and persons living in your household, friends and co-workers, spiritual leaders, advisors, or therapists. Do not post any information about the trial or your jury service on the Internet in any form. Do not send or accept

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any messages, including e-mail or text messages, to or from anyone concerning the trial or your service. You may say you are on a jury and how long the trial may take, but that is all.” CACI Instruction 100. 32 Other states have taken or are considering action to address this problem. In an Administrative Order issued June 30, 2009, the Michigan Supreme Court ordered trial judges, beginning September 1, 2009, to tell jurors not to improperly use electronic devices during an ongoing trial. MCR 2.511. As a result of an opinion by the Indiana Supreme Court discussing the use of a cellular telephone by a juror during deliberations, the Indiana Judicial Conference’s jury committee is drafting a rule limiting jurors’ use of electronic devices while deliberations are occurring. Miami Herald, July 31, 2009.

33 Fla. R. Civ. P. Form 1.985.

34 Judge Brown tells jurors they are not to talk to anyone about the case or the lawyers or parties in person, by phone or by tweeting, blogging, texting, emailing, writing, or any other method of communication, and they are not to do research or look up anything in books, papers, or on the internet.

35 Judge Kest gives this instruction: “I know that most, if not all of you, have cell phones and that many of those cell phones have computer access. I also suspect that most of you are computer literate – certainly much more than I am. I have cautioned you not to do an independent research and that you verdict must be based on the facts you hear in this courtroom from the witness box and the evidence. Let me extend that caution. You are not to conduct any independent research on computers, your cell phones, or in any other manner. Not the old fashion kind in encyclopedias, or the newer methods of “googling” and “tweeting” on your computer based research tools. Lastly, you have been advised not to discuss this case with anybody except you fellow jurors and then only when you retire at the conclusion of the case to deliberate. Therefore, you must not e-mail or otherwise electronically contact other people about this case nor seek their opinions, advice or even thoughts on the issues before you.”

36 This approach has long been used by judges when an article appeared in the paper or a story in the news or other media about the trial or about a subject that may impact the trial. There are a number of ways to handle the situation: ignore it; identify the article or source head on; or do not identify the article or source but instead ask in general if the jurors heard or read anything about the case. The judge and lawyers should confer on the approach and the exact wording to jurors to hopefully develop a measured response to the threat. If a juror responds that he or she heard or read something, the juror should be questioned further out of the hearing of other jurors to determine if a curative instruction or dismissal from the jury is required.

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                                                                                                                                                                                                               37 Brenal v. Lipp, 580 So. 2d 315, 316-7 (Fla. 3d DCA 1991)(“Although the juror did not intend to mislead plaintiffs' counsel, the omission nonetheless prevented counsel from making an informed judgment -- which would in all likelihood have resulted in a peremptory challenge.”)

38 See Fla. Std. J. Inst. 1.0; endnote 16 above.

39 De La Rosa, 659 So. 2d at 241.

40 Typical follow up is “Is there anyone else who feels the same as Mr. ____?”, or “Does anyone else have strong feelings about this subject?”

41 The lawyer has the added advantage of not being a lightning rod for contempt by the juror being questioned or others due to sensitive subject matter.

42 Carver v. Niedermayer, 920 So. 2d 123 (Fla. 4th DCA 2006).

43 Judges should grant a challenge for cause if there is even a reasonable doubt as to veracity or fairness of a juror. “[I]f there is a basis for any reasonable doubt as to any juror's possessing that state of mind which will enable him to render an impartial verdict based solely on the evidence submitted and the law announced at the trial [,] he should be excused on motion of a party, or by [the] court on its own motion.” Tizon v. Royal Caribbean Cruise Line, 645 So. 2d 504, 506 (Fla. 3d DCA 1994). However, some judges may be more willing to grant a peremptory challenge to each party to remedy a situation where the literal responses by the juror in the record do not facially rise to a basis for granting a challenge for cause.

44 Where there is suspicion about a juror’s motives which persists through the trial of the case, lawyers should consider mentioning in their closing argument that jurors should feel empowered to now do all the things a jury does as well as they can: “…studying the evidence, discussing it, considering the testimony, weighing and evaluating thoughtfully and thoroughly…”- and including a reminder that they must “police themselves” during deliberations. The key problem behaviors discussed above should be detailed, and the jurors reminded that any attempt to use information improperly gained outside of the evidence from research or other sources; displays of prejudice; “stealth” jurors revealing their true intentions to the other jurors, etc. needs to be reported to the judge.

APPENDIX D 36

September 13, 2009

A Legal Battle: Online Attitude vs. Rules of the Bar

By JOHN SCHWARTZ

Sean Conway was steamed at a Fort Lauderdale judge, so he did what millions of angry people do these days:

he blogged about her, saying she was an “Evil, Unfair Witch.”

But Mr. Conway is a lawyer. And unlike millions of other online hotheads, he found himself hauled up before

the Florida bar, which in April issued a reprimand and a fine for his intemperate blog post.

Mr. Conway is hardly the only lawyer to have taken to online social media like Facebook, Twitter and blogs,

but as officers of the court they face special risks. Their freedom to gripe is limited by codes of conduct.

“When you become an officer of the court, you lose the full ability to criticize the court,” said Michael

Downey, who teaches legal ethics at the Washington University law school.

And with thousands of blogs and so many lawyers online, legal ethics experts say that collisions between the

freewheeling ways of the Internet and the tight boundaries of legal discourse are inevitable — whether they

result in damaged careers or simply raise eyebrows.

Stephen Gillers, an expert on legal ethics at New York University Law School, sees many more missteps in

the future, as young people who grew up with Facebook and other social media enter a profession governed

by centuries of legal tradition.

“Twenty-somethings have a much-reduced sense of personal privacy,” Professor Gillers said. Younger

lawyers are, predictably, more comfortable with the media than their older colleagues, according to a recent

survey for LexisNexis, the legal database company: 86 percent of lawyers ages 25 to 35 are members of social

networks like Facebook, LinkedIn and MySpace, as opposed to 66 percent of those over 46. For those just out

of law school, “this stuff is like air to them,” said Michael Mintz, who manages an online community for

lawyers, Martindale-Hubbell Connected.

In Mr. Conway’s case, the post that got him in trouble questioned the motives and competence of Judge

Cheryl Aleman, and appeared on a rowdy blog created by a criminal defense lawyers’ group in Broward

County. The judge regularly gave defense lawyers just one week to prepare for trials, when most judges give a

month or more. To Mr. Conway, the move was intended to pressure the lawyers to ask for a delay in the

trials, thus waiving their right under Florida law to have a felony trial heard within 175 days, pushing those

cases to the back of the line.

“All I had left were my words,” Mr. Conway said, adding that he decided to use the strongest ones he had.

This copy is for your personal, noncommercial use only. You can order presentation-ready copies for distribution to your colleagues, clients or customers here or use the "Reprints" tool that appears next to any article. Visit www.nytreprints.com for samples and additional information. Order a reprint of this article now.

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APPENDIX D 37

Mr. Conway initially consented to a reprimand from the bar last year, but the State Supreme Court, which

reviews such cases, demanded briefs on First Amendment issues. The American Civil Liberties Union of

Florida argued that Mr. Conway’s statements were protected speech that raised issues of legitimate public

concern. Ultimately the court affirmed the disciplinary agreement and Mr. Conway paid $1,200.

That penalty is light compared with the price paid by Kristine A. Peshek, a lawyer in Illinois who lost her job

as an assistant public defender after 19 years of service over blog postings and who now faces disciplinary

hearings as well.

According to the complaint by officials of the state’s legal disciplinary body, Ms. Peshek wrote posts to her

blog in 2007 and 2008 that referred to one jurist as “Judge Clueless” and thinly veiled the identities of clients

and confidential details of a case, including statements like, “This stupid kid is taking the rap for his drug-

dealing dirtbag of an older brother because ‘he’s no snitch.’ ”

Another client testified that she was drug free and received a light sentence with just five days’ jail time, and

then complained to Ms. Peshek that she was using methadone and could not go five days without it. Ms.

Peshek wrote that her reaction was, “Huh? You want to go back and tell the judge that you lied to him, you

lied to the presentence investigator, you lied to me?”

The complaint, first noted by the Legal Profession Blog, said that not only did Ms. Peshek seem to reveal

confidential information about a case, but that her actions might also constitute “assisting a criminal or

fraudulent act.”

Ms. Peshek declined to comment, citing the pending inquiry “for which I am currently seeking

representation.”

Frank R. Wilson, a lawyer in San Diego, caused a criminal conviction to be set aside and sent back to a lower

court because of his blog postings as a juror. According to a decision published recently in the California Law

Journal and picked up by the Legal Profession Blog, Mr. Wilson, while serving on a jury in 2006, posted

details of the case on his blog. Any juror who blogs about the details of a trial risks trouble and even civil

contempt charges. But lawyers like Mr. Wilson also face professional penalties that can threaten their

livelihood.

Mr. Wilson received a 45-day suspension, paid $14,000 in legal fees and lost his job. He said that warnings

not to discuss the case did not ban blogging; the bar disagreed. Mr. Wilson also had not disclosed during jury

selection that he was a lawyer. In an interview, Mr. Wilson said he had not been working as a lawyer at the

time and had only been asked his occupation.

Judges, too, can get into trouble online. Chief Judge Alex Kozinski of the United States Court of Appeals for

the Ninth Circuit, in California, was investigated for off-color humor that was accessible on his family’s Web

server, though not intended to be public. He was cleared of wrongdoing, but a three-judge panel admonished

him for not safeguarding the site, which they said was “judicially imprudent.”

Of course, some lawyers’ online problems are the same as everyone else’s, like getting caught in a fib. Judge

Susan Criss of the Texas District Court in Galveston recalled in an interview a young lawyer who requested a

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APPENDIX D 38

trial delay because of a death in the family. The judge granted the delay, but checked the lawyer’s Facebook

page.

“There was a funeral, but there wasn’t a lot of grief expressed online,” Judge Criss said. “All week long, as the

week is going by, I can see that this lawyer is posting about partying. One night drinking wine, another night

drinking mojitos, another day motorbiking.” At the end of the delay, the lawyer sought a second one; this

time the judge declined, and disclosed her online research to a senior partner of the lawyer’s firm.

Judge Criss, who first told the story at a panel during an American Bar Association conference, said that the

lawyer has since removed her from her friends list.

For his part, Mr. Conway noted that the judge he criticized was reprimanded last year by the Florida

Supreme Court, which affirmed a state panel’s criticism of what it called an “arrogant, discourteous and

impatient” manner with lawyers in another case. (Judge Aleman did not return calls seeking comment.) Mr.

Conway said his practice was “probably enhanced by the experience” of going public.

But the State Supreme Court ultimately accepted Mr. Conway's earlier reprimand agreement with the bar,

which had argued in its brief to the court that the online “personal attack” was “not uttered in an effort to

expose a valid problem” with the judicial system, and so the statements “fail as protected free speech under

the First Amendment.”

This article has been revised to reflect the following correction:

Correction: September 20, 2009

An article last Sunday about lawyers who have been disciplined for comments they made online misstated

the source of a statement saying that one lawyer’s remarks “fail as protected free speech under the First

Amendment.” That statement came from a brief submitted by the Florida bar to the state Supreme Court,

which reviewed the lawyer’s punishment; it was not from the state Supreme Court’s ruling in the case.

Copyright 2009 The New York Times Company

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APPENDIX D 39

"Rebecca Mercier-Vargas" <rmercier@jkwpa.com>

09/22/2009 02:17 PM

To <jamos@fisherlawfirm.com>

cc "Jodi B Jennings" <jjenning@flabar.org>

bcc

Subject FW: Tweeting Issues

Attached is another recent article on problems caused by jurors performing electronic research or using electronic devices to communicate about the case. The article says the Oregon civil jury instructions committee is also looking at revising the standard instructions. I searched on-line but did not find any drafts that have been posted by the Oregon jury instructions committee. Rebecca Rebecca Mercier Vargas, Esq.Board Certified Appellate LawyerKreusler-Walsh, Compiani & Vargas P.A.501 South Flagler Drive, Suite 503West Palm Beach, Florida 33401Telephone: (561) 659-5455Facsimile: (561) 820-8762

Friday, September 18, 2009

Jurors’ tweets, texts upset trial judgesThe answer to Twitter’s ‘What are you doing?’ may be ‘Causing a mistrial.’

Portland Business Journal - by Adam Worcester Contributing writer

Cathy Cheney | Portland Business JournalMultnomah County Circuit Court Judge Youlee Yim You ran into a texting problem in her first trial.View Larger

Multnomah County Circuit Court Judge Youlee Yim You was shocked during her inaugural trial to discover that a domestic violence defendant was texting the victim — his girlfriend — while she was on

APPENDIX D 40

another floor of the building waiting to testify.

“It was a wake-up call as to what could happen,” You said, referring to the increased use of cell phones, Blackberries and other devices to circumvent, knowingly or unknowingly, the rules of court.

In You’s first case, the prohibited behavior was a defendant communicating with a witness. In many more cases around the country, it is jurors using their handhelds to text friends or post tweets about the case and to research the case online.

In Arkansas and Pennsylvania, defense lawyers petitioned for new trials after jurors in March answered Twitter’s standard inquiry — what are you doing? — by disclosing information about jury deliberations. One tweet informed anxious readers to “stay tuned for a big announcement on Monday.” Another boasted: “I just gave away TWELVE MILLION DOLLARS of somebody else’s money.”

No one seems to have a tally of mistrials caused by such behavior, but anecdotes keep coming.

Also in March, a Florida judge declared a mistrial after discovering that nine of the 12 jurors had been secretly researching the case on the Internet — in direct violation of the judge’s instructions.

In the space of a couple weeks, those three cases thrust into the national spotlight the ramifications on trials of Twitter and social networking brethren such as Facebook and My Space.

Contrary to centuries of legal protocol, some jurors seem to be sharing information about the cases they are trying as casually as the minutiae of their daily lives. And armed with unprecedented access to encyclopedic information, they can search the Web for details about plaintiffs and defendants during lunch hour or even bathroom breaks.

Such incidents have frustrated attorneys, infuriated judges, and left the legal community scratching its collective head over how best to deal with this new technological threat.

While judges’ instructions to jurors are explicit — not reading or listening to news reports; no discussing jury deliberations with anybody; considering only the evidence that’s presented in the courtroom — they often don’t specifically mention Internet technologies.

Oregon lacks uniform jury instructions that address this issue, but an Oregon State Bar committee is considering making amendments to Oregon’s courtroom instructions.

Judge You, however, is not waiting for the changes to become official. Besides warning jurors not to read or post information about the case on any Internet site, she now tells them that they cannot use their I-phones, Blackberries or any other device in the courthouse or at home to conduct any research during the trial.

“With the way we live nowadays, we need a little reminder of what’s appropriate and what’s not,” You said. “Just a little clarification would make a whole lot of difference.”

Most jurors take their responsibility seriously and diligently try to follow the rules, said Liz Puskar, an attorney with the Portland firm Markowitz Herbold Glade & Mehlhaf PC. But for many people, it’s second nature to jump online.

“They might go back to the jury room and they can’t remember exactly what a witness said, so they look online or e-mail a friend,” Puskar said. “They don’t even think about it.”

The problem, many observers agree, is that jurors don’t fully understand judges’ admonishments about maintaining strict confidentiality.

Indeed, many jurors believe they’re doing their duty by using the Internet to more fully investigate a case,

APPENDIX D 41

said John McGrory, chair of the litigation department for the Portland office of law firm Davis Wright Tremaine LLP. Such behavior is hard to police.

“They wonder why they’re only hearing part of the story from lawyers,” McGrory said.

Usually there’s a good reason for it, such as a pre-trial ruling, he said.

“The whole system turns on the idea that the evidence presented in court will be all the information the jury will have in reaching a decision,” said Markowitz Herbold shareholder Peter Glade.

Even if jurors understand their duties, though, it is difficult to stop those bent on circumventing the rules.

Judge You noted that hand-held devices are becoming smaller and more sophisticated, allowing adept users to text message while their cell phones are still in their pockets.

Still, “most jurors really do take their obligations seriously,” said McGrory. “It’s refreshing and somewhat surprising, but they really do.”

APPENDIX D 42

New trial sought after juror claims she read NDN's story on paralyzed woman

A motion seeking juror interviews could end in a new trial for Sheila Matthews, who became paralyzed during a hospital stay

By AISLING SWIFT

Wednesday, September 30, 2009

NAPLES — The lawyer for an East Naples woman who lost a lawsuit that claimed

doctors’ negligence caused her to become paralyzed is asking for a new trial based on

juror misconduct.

The motion filed by Nancy La Vista of West Palm Beach, who represented Sheila

Matthews, 59, also seeks disclosure of a juror who admitted researching the case,

including reading the Naples Daily News, which reported Naples Community Health

Care System, which does business as NCH North Naples Hospital and NCH

Downtown Naples Hospital, settled before trial. The settlement was not allowed to be

brought up in the trial.

The motion also seeks the name of two other jurors who heard the man’s admission

and a juror who reported it to a bailiff, who alerted Collier Circuit Judge Cynthia

Pivacek.

It also suggested that Pivacek might want to turn the juror’s name over to the State

Attorney’s Office for possible perjury charges because the juror “looked this honorable

court in the eye every day” and swore he hadn’t read newspapers or learned anything

about the case.

“What’s tremendously sad to me is the system relies on jurors not going outside the

evidence and when the jury fails, the system fails,” La Vista said, noting that jurors all

assured the judge, under oath, they had not read newspaper accounts or heard

anything about the case outside of testimony.

“When you look at all the judicial effort, the money involved, everything that goes into a

trial, it’s devastating,” said La Vista, who left a long career as a critical-care nurse to

become an attorney specializing in medical cases.

La Vista’s motion was prompted by a letter sent by Pivacek, whose bailiff told her after

a juror contacted him to report what occurred.

“I did not speak to the juror, but information was related as to an allegation that, (while)

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APPENDIX D 43

leaving the courthouse after the jury had been discharged, one juror stated in the

presence of two others, that he had read articles about the case, had done his own

research, and knew that one of the defendants had already entered into a settlement

agreement with the plaintiff,” Pivacek wrote in a Sept. 9 letter to the attorneys in the

case.

The judge said she’d reviewed civil rules, but they didn’t provide guidance in a situation

in which a judge becomes aware of juror misconduct after a trial. “Accordingly, based

on the nature of the allegation, I feel that I am obligated to report this information to all

counsel of record, who may, in turn, elect to take further action,” she wrote.

The letter was sent to La Vista, radiologist Daniel Singer’s lawyer, Richard Mangan;

Bob Cousins, who represented neurologist Michael Vickers; and internist Sunil

Pandya’s attorney, Peter Restani.

Defense attorneys have not responded to that motion and could not be reached for

comment.

In a story published a day before Matthews testified from a gurney chair in the center

of the courtroom, the Daily News reported that Naples Community Health Care System

reached a settlement just weeks before trial and filed settlement papers Aug. 10, the

first day of jury selection. The story did not specify an amount, which was confidential.

After the verdict, the newspaper reported that defense motions showed it was a

“substantial settlement.”

The 2007 lawsuit and testimony showed Matthews, a retired nurse who suffered from

diabetes and bipolar disorder, called 911 on March 29, 2005, complaining of shortness

of breath and excruciating back pain. But she was able to walk out of her Naples home

into an ambulance.

She testified doctors, who were not hospital employees, didn’t consider her condition

an emergency. Records showed she deteriorated for six days, at times screaming in

pain, until April 1, 2005, when she was unable to walk.

Two days later, when doctors realized the situation, Dr. Paul Dernbach, who was not

sued, performed emergency surgery at NCH Downtown Naples Hospital and helped

her regain some arm motion and feeling in two toes. She was released April 21, 2005,

and suffers from quadriparesis, meaning she has some motion.

On Sept. 1, after a roughly two-week trial, the five-man, one-woman Circuit Court jury

deliberated 3 1/2 hours before finding the doctors not negligent in caring for Matthews,

who now lives at Manor Care at Lely Palms.

La Vista’s motion, filed Sept. 14, says civil rules require attorneys to state the names of

jurors wanted for interviews, but she is unable to do that. La Vista asked the judge to

disclose the four names so she could conduct juror interviews based on alleged

misconduct.

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APPENDIX D 44

To support her motion for a new trial, La Vista cited a 1990 Second District Court of

Appeal case that reversed a circuit judge’s decision involving a juror in Bickel v. State

Farm Automobile Insurance Co. who drove to the scene of an accident and performed

an experiment to test the plaintiff’s theory of how the accident occurred.

The appeals court ruled that the defense’s attempt to gain a new trial based on juror

misconduct was not “merely a case of an unsuccessful litigant impermissibly

attempting to inquire into the subjective decision-making process of the jury,” but

contended that jury “disregarded the court’s instructions to confine their deliberations to

the evidence presented at trial.”

La Vista also cited a 1992 Fourth District Court of Appeal ruling, Hollywood Corporate

Circle Associates v. Amato, that said a new trial was necessary once it became clear a

juror had independently researched the law, visited the accident scene, discussed the

case with his police officer girlfriend, and carried a police regulations handbook into the

jury room. The ruling called that juror’s actions a “willful disregard for the sanctity of the

jury process.”

La Vista also cited state law and a 2009 Florida Supreme Court decision in Saleeby v.

Rocky Elson Construction Inc., saying they clearly prohibit disclosure of a settlement to

jurors. La Vista called the juror who did the research “tainted.”

At the very least, her motion says, juror interviews are required, but ultimately, the

misconduct could call for a new trial.

© 2009 Scripps Newspaper Group — Online

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APPENDIX D 45

Jodi B Jennings/The Florida Bar

10/09/2009 08:37 AM

To "Amos, Joseph" <jamos@fisherlawfirm.com>, apratt@fisherlawfirm.com, "Artigliere, Ralph" <skywayra@tds.net>, reajr@robertaustinlaw.com,

cc

bcc

Subject Fw: Recent Column

Wendy and Dick forwarded this article for your review. Jodi----- Forwarded by Jodi B Jennings/The Florida Bar on 10/09/2009 08:32 AM -----

"Caldwell, Jr. , Dick" <dcaldwell@rumberger.com>

10/08/2009 05:41 PM

To "Jodi B Jennings" <jjenning@flabar.org>

cc <jamos@fisherlawfirm.com>, "Tracy Gunn" <tgunn@gunnappeals.com>

Subject FW: Recent Column

Jodi: below is a copy of a recent article from the New York Law Journal, on the topic of juror internet usage. The article is similar to several which the subcommittee has reviewed, and in fact discusses the Jim Edwards article which has been circulated. There is an interesting discussion of a very recent South Dakota case in which a juror conducted some internet research after receiving the jury summons, but before appearing at the courthouse in response to the summons. I'm sure it's beyond the Committee's purview to address language in jury summons, but this may be something to mention in our report to the Supreme Court. It may be worthwhile noting that the article recommends precisely the giving of this type of instructions at multiple times during the trial process, exactly as the subcommittee has recommended. Circulate this to the Committee and the joint subcommittee if you feel it worthwhile. Thx.

From: Michael Hoenig [mailto:MHoenig@herzfeld-rubin.com] Sent: Thursday, October 08, 2009 5:19 PMTo: Caldwell, Jr. , DickSubject: Recent Column

Attached is the Products Liability column issued in the N.Y. Law Journal on October 8, 2009 entitled, “Juror Misconduct on the Internet.” The article reports on a still growing phenomenon, jurors straying onto the internet to do research, communicate about the case or to otherwise receive or dispense potentially prejudicial information. A recent South Dakota decision upheld vacatur of a defense verdict because a curious prospective juror (before voir dire) Googled the defendant seat belt manufacturer and, during deliberations, shared some information. We report on other instances

APPENDIX D 46

of blogging, Tweeting, Facebooking and the like, as reported in recent case law or in a helpful article by Florida attorney James A. Edwards. In some states, such as New York, the pattern jury instructions have been revised recently to admonish jurors pointedly about forbidden activities on the internet. Other states are working on their jury instructions. Counsel in states that have not yet adopted strong admonitions should request courts to charge jurors effectively. But only one such instruction during a lengthy trial may not be enough. Repeated and emphatic charges should perhaps be demanded. A good, solid voir dire to identify computer-savvy jurors (and perhaps the most likely to stray) should be considered along with getting IOUs from them against misconduct. Regards,

Mike Hoenig

Products Liability

Juror Misconduct On the InternetBy Michael HoenigNew York Law Journal

October 08, 2009

Just weeks ago, the South Dakota Supreme Court upheld the vacating of a defense verdict in a products liability wrongful death action against a seat belt manufacturer because a juror performed a Google search after receiving his jury summons (but before voir dire) and then, during a critical stage of deliberations, shared information from that search with five other jurors. The case name is Russo v. Takata Corp.

1

The decision was issued Sept. 16. More about the facts and court's reasoning later. Before readers slough this off as a precedent meaningful primarily to South Dakotans, we should ask whether the scenario is emblematic of a significant trend far beyond the boundaries of South Dakota. Is this a disappearing blip on the radar screen? Or is this a marker of what to expect in the way of likely juror behavior? We should be honest in evaluating the answers. If the vast information superhighway has no speed limits, lots of speeders and few traffic cops, how will courts police the receipt and processing of only appropriate information?The South Dakota decision is a good stimulus for bench and bar to focus again on a phenomenon that needs attention. There may be new facts of life that trial strategists have to consider beyond urging appropriate jury instructions. The psychology of the modern juror likely is affected by how good or active a player he or she is on the Internet. Lawyers facing computer-savvy jurors may have to be more careful about the accuracy of what they say and the advocacy they unleash. After all, their representations could be verified by a juror speedily checking the assertion. So many strategies may now be in play anew—tactics that experienced litigators must revisit to assess their freshness, currency and impact.

APPENDIX D 47

Some half-dozen years ago, in our Law Journal column, "When Jurors Surf the Internet (And Shouldn't),"

2

we reported on the growing phenomenon of jurors or potential jurors rather easily gleaning extraneous prejudicial information from the Internet, including facts, data or hearsay that otherwise would not be admissible in court. Often, such information was shared with other jurors. We surveyed actual cases and suggestions by jurists and writers on how to protect against such invasions and taintings of trials or jurors' thought processes.Since then the overall challenge as well as the opportunities for misconduct have grown. Computer use has soared. The speed of electronic search and retrieval has blazed forward. Hardware and software advances have put more information at the disposal of more people more quickly and more easily. Search engines such as Google, social networking sites such as MySpace, Facebook and Twitter, video archives such as YouTube, all manner of blogs (from individual to public forum types), innumerable Web site postings, professional directories, literature collections, map sites, encyclopedias and much more, all create a cumulative pool of information on virtually any subject. This dazzling blitz of electronic information tidbits can easily become a near-irresistible magnet for juror curiosity. Jurors may be attracted as a moth is to a flame.Instructions RevisedA major question is whether the protective cocoon we want to preserve of the courtroom trial, where jurors calmly and dispassionately receive only relevant and reliable information based on evidentiary rules that balance the pertinent against the prejudicial, can viably be maintained in the face of the informational tsunami pressing against it. It is not as if the courts are ignoring the challenge. The sage members of the New York Pattern Jury Instructions (PJI) Committee, in 2009, revised PJI 1:10 and 1:11 to cover Googling, Twitter and other forbidden computer activities.

3

Other states have revised their jury instruction rules or have committees working on drafting language forbidding juror forays onto the Internet.

4

But will such instructions suffice? Or is the allure of the Internet too hot to cool off with a jury charge? The notion that one instruction among several others recited at the outset of, say, a four-week trial, will deter all the jurors from surfing the Internet may be optimistic. Perhaps such admonitions should be given repeatedly and emphatically. That surely would be justified in a significant case where sympathy and publicity are expected. But maybe jurors need to be reminded frequently in each case.Mary Flood, legal reporter at the Houston Chronicle, writes in her recent Syracuse Law Review article that the Internet is making our courts more accessible and more transparent in some ways. But, at the same time, its vastness is making judges more wary about protecting the fairness of proceedings.

5

The institution of e-filing at courts allows the public to access court documents from any computer for free or for a fee. And increasingly, news media add court documents and court orders to their postings online and even have reporters blogging live or twittering from courthouses. She calls it a "tidal wave of openness." Video evidence in a case might wind up on YouTube. Judges now have to worry about jury access to the Internet and jurors twittering their experiences.

6

"Blogs and Twitter allow the cases to become minute by minute soap operas and allow idle readers to follow every turn."

7

James A. Edwards, a noted Florida litigation specialist, has been closely following

APPENDIX D 48

the juror-Internet phenomenon, lecturing and writing on the subject.8

His recent article "Jurors Who Tweet, Blog and Surf—Deciding and Discussing Your Case," is expected to be published in two parts in the October and November 2009 issues of the Orange County Bar Briefs.

9

The author observes that "jurors are accessing the internet to gather information about the cases they are deciding. Sometimes it is a simple curious juror, other times the internet sleuthing takes on more importance than the evidence in court. Jurors are also sharing their current jury experiences in real time in almost a 'play by play' manner. There have been instances of jurors polling their fellow internet users on how they should vote."

10

Thus, for example, in an Arkansas civil case where a $12.6 million judgment was awarded, a juror had been posting Twitter messages, known as "tweets," regarding the trial. In the motion for a mistrial some of the troublesome tweets were revealed: "oh and nobody buy [defendant's name]. Its bad mojo and they'll probable cease to exist, now that their wallet is 12m lighter." Another one said "so, Johnathan [juror's name], what did you do today? Oh nothing really, I just gave away TWELVE MILLION DOLLARS of somebody else's money."

11

Al Roker, the NBC Today show weatherman was called for jury duty and began sending out a stream of tweets which included photos of his potential fellow jurors. He later apologized on Twitter and the Today Show and the photos were unposted. In an Oregon case a jury foreman reported that one of the jurors did a computer search for the legal meaning of "implied consent" and "beyond reasonable doubt." In other cases, there was online research or investigation of facts, people, science and scenes. Some lawyers even share their own triumphs on YouTube. Deposition videos have been posted on YouTube in attempts to sway potential jurors.Mr. Edwards reports that during the deliberation phase of the case a variety of juror search activities have occurred. Jurors might use GoogleEarth.com to get a real-life, detailed satellite photo of the accident or crime scene. They might attempt to get opinion/community sentiment information. One twitter tweeted, "Be Carona's judge, what should ex-sheriff get?" There may be simultaneous blogs, tweets, or e-mail detailing what is taking place at the trial. One tweet said, "I'll be twittering Mike Carona's sentencing from the courtroom on Monday, so log on." One blogger reportedly wrote, "Hey guys! I know jurors aren't supposed to talk about their trial, but nobody said they couldn't LIVE-BLOG it, right? Am I right or am I right?" In one case a juror serving on a sexual assault criminal trial, unsure of how to vote, posted a message on her Facebook wall conducting a poll on how the case should be decided. Fortunately, the court was alerted and the juror excused.

12

Curious JurorsIn addition to earlier examples cited in our column over six years ago, recent case law suggests that jurors straying onto the Internet is not a rare event. In United States v. Siegelman ,

13

the U.S. Court of Appeals for the Eleventh Circuit considered the question of claimed juror misconduct when the jury foreman searched the trial court's own Web site and obtained a copy of the Second Superseding Indictment as well as juror information from the Web site concerning the foreperson's role. There also were issues about some limited juror exposure to online news reports. In State of West Virginia v. Cecil ,

14

jurors had looked at the Web site MySpace.com as well as engaging in other external investigations. In United States v. Fumo ,

15

a juror used social networking sites Facebook and Twitter, revealed only when a journalist

APPENDIX D 49

conducted post-verdict interviews with some jurors. In New York v. Jamison ,16

a juror Googled the defense attorney and learned he had a private practice (as opposed to being a public defender). In State of Michigan v. White ,

17

a question was raised about a juror's conversation with others regarding the feasibility of getting a satellite photo of the crime scene by Googling the address.

18

In Russo , the recent South Dakota decision, the products liability claim centered around the seat belt performance in a vehicle rollover. The prospective juror received a jury summons and a questionnaire. The summons admonished about not seeking out evidence or discussing the case or questionnaire with anyone. Curious as to who the defendant Takata and its product line were, he conducted two Google searches, finding it to be a seat belt and airbag manufacturer. Two months later, during voir dire, no question was a "direct hit" on Takata. The only question relating to specific knowledge was by defense counsel who asked, "Okay. Before you got here this morning had anyone ever heard of Takata?" No one, including the Googling juror, responded positively. The last question asked if there was "anything we haven't asked you about that you think was important for us to know…about you" and the way you would approach your job as a juror. Again, no one answered in the affirmative.During deliberations, some of the jurors discussed whether Takata had notice of any defects related to the product. One juror asked whether Takata had ever been sued. The juror responded that he had done a Google search, learned that Takata made seat belts and airbags "but did not find any lawsuits during his search." Admonished by another juror that outside information was not to be considered, the juror tried to retract what he said. The jury foreman's attention was drawn to the exchange, and the matter was dropped. The entire exchange lasted three to five minutes. After disclosure of the Google search, the jury deliberated for another 1½ hours and rendered its verdict for the defense. Later, armed with affidavits from 10 jurors, plaintiffs filed their motion for a new trial claiming juror misconduct. The trial court held a hearing and found that the juror likely had done a more detailed search than the one he acknowledged, that the information was inconsistent with the evidence and was conveyed at a crucial time. The defense verdict was vacated and a new trial ordered.The South Dakota Supreme Court analyzed several issues. For example, does a juror's remark in deliberations, based on information he knew before jury selection and that could have been ascertained by reasonable voir dire, constitute "extraneous information" upon which a verdict can be set aside? Further, whether a rebuttable presumption of prejudice is created in civil trials when extraneous information is brought to the jury's attention? Finally, whether the juror's remarks prejudiced the jury's verdicts against the plaintiffs? Following extensive discussion of these issues and noting deference to the trial court, the state Supreme Court affirmed the grant of a new trial.Conceding that "[a]dmittedly this is a close case," the appellate court said it was not announcing "a hard and fast rule that all such types of internet research by a juror prior to trial without notice to the court and counsel automatically doom a jury's verdict." Rather, "in such close cases, we give deference to the trial court" which sat throughout the 19-day trial and was in the best position to gauge whether the material was extrinsic to the issues before the jury and prejudiced the jury.Conclusion

APPENDIX D 50

As in our prior article, we have called attention to a still growing phenomenon. The examples cited in the case law and in articles by legal experts such as Mr. Edwards tell us about juror incidents that somehow were exposed. But what about the ones that have not been revealed? How many strayings onto the Internet have slipped by? How many may have influenced trial results? Although there is a structured approach in most jurisdictions to evaluating jurors' prejudicial receipt of extraneous information, one first has to find out about the misconduct. In many courts, however, post-trial interviews of jurors are forbidden or discouraged. So what can be done? Good, solid voir dire of prospective jurors on the subject seems necessary. Counsel (and the court) may need to do more to identify the serious bloggers and tweeters, the veteran Internet surfers, much as they explore other behaviorisms. Getting IOUs from jurors to obey the judge's instructions seems desirable. Admonitions such as those adopted in New York's Pattern Jury Instructions are helpful. But such charges cannot be recited only once, perhaps in a boring monotone, buried among others. They need emphatic repetition. And counsel need to be vigilant!Michael Hoenig is a member of Herzfeld & Rubin.

Endnotes:

1. 2009 S.D. 83; 2009 S.D. LEXIS 155 (S.D. Sup. Ct., Sept. 16, 2009).2. New York Law Journal, Aug. 11, 2003, p. 3.3. The Pattern Jury Instructions (PJI) are available on the New York Unified Court System Web site. PJI 1:11, titled "Discussion With Others—Independent Research," admonishes jurors not to be doing independent research "or conducting an internet search of any kind." More pointedly, this PJI declares in part: "It is important to remember that you may not use any internet services, such as Google, Facebook, Twitter or any others to individually or collectively research topics concerning the trial, which includes the law, information about any of the issues in contention, the parties, the lawyers or the court." In criminal cases, New York's "Jury Admonitions in Preliminary Instructions" were revised May 5, 2009, to include pointed admonitions against jurors utilizing electronic means and devices to research or communicate with others about the case. See Admonitions 4-6. The Criminal Jury Instructions are found on the N.Y. Unified Court System Web site.4. As of June 30, 2009, the Michigan Court Rules were amended to require instructing the jury not to use a computer, cellular phone or other device to obtain or disclose information about the case when they are not in court or are on breaks or recesses. Additionally, use of such devices when in trial or deliberations is to be forbidden.5. M. Flood, "Symposium: Law, Politics and the Media: Windows Opening and Doors Closing—How the Internet is Changing Courtrooms and Media Coverage of Criminal Trials," 59 Syracuse L. Rev. 429 (2009).6. Id. at 431 (citing J. Schwartz, "As Jurors Turn to Google and Twitter, Mistrials Are Popping Up," N.Y. Times, March 18, 2009, at A1).7. Id. at 434.8. Mr. Edwards is a Board-Certified Civil Trial Lawyer with the Maitland, Florida, law firm of Hewitt Wolensky. His e-mail address is jedwards@hwlawonline.com. Among his lectures was a presentation of the topic at the Florida chapters of the American

APPENDIX D 51

Board of Trial Advocates this past summer.9. A publication of the Orange County Bar Association—Florida. Mr. Edwards can be contacted by e-mail for a copy.10. "Jurors Who Tweet…." Article, at 1 (Manuscript provided by author).11. Id. 12. Id. at 6-8 (Manuscript).13. 561 F.3d 1215 (11th Cir. 2009).14. 655 S.E.2d 517 (W. Va. Sup. Ct. of Appeals 2007).15. 2009 U.S. Dist. LEXIS 58296 (E.D. Pa. July 9, 2009).16. 2009 N.Y. Misc. LEXIS 2184 (Sup. Ct. Kings Co., Aug. 18, 2009).17. 2008 Mich. App. LEXIS 286 (Mich. App. Feb. 5, 2008).18. See also United States v. Boyd , 2007 U.S. Dist. LEXIS 88493 (E.D. Tenn. Nov. 30, 2007), where Internet searches on pretrial publicity showed much public attention and were unsuccessfully used by counsel to support a motion to change

the venue of a trial.

APPENDIX D 52

Online and Wired for Justice: Why Jurors Turn to the Internet

by Douglas L Keene &. Rita R. Handrich

"There Is an online qultting-Facebook-for-Lent support group, But how is It possible to communicate support on Facebook withoutbreaking your vow? Serving on a jury is one of those instances when the cell phone and the laptop are best left at home',"

Trials have been being disrupted due to the internet from as far back as 2001 according to the Otizens Media Law project2. The differencein our attention to it now Is simply due to a dramatic rise in frequency and in media coverage. The recent proliferation of socialnetworking sites (MySpace, Facebook, Plaxo, Linkedln, and Twitter, for example) has resulted in a sense of always being 'connected'.Cell phones are ubiquitous and we can 'text in' updates to our status on multiple websites to our friends and followers.

It Is amazing how deeply social media has become entrenched into our lives. Adult Internet user profiles on on-line social network sitesare up from only 8% In 2005 to 35% In January, 2009'. Many of us (more than 34 million American adults) send text messages on our cell

phones. The most likely texters4 are members of Generation Y, ages 18 to 27.

Courtroom trials5 are being 'tweeted' live by reporters, 140 characters at a time. Twitter users6 are compared to non-Twitter users andfound to be more likely to consume news/do research on the go with their Internet-enabled cell phones. They are not the only ones,however. In fact, by July of 2009, more than half (56%) of American adults have accessed the Internet by wireless means7. Cell phoneaccess (32%) is only slightly behind laptop access (39%) and now, on a typical day, 19% of us access the internet on a mobile device. Thisnumber may seem low to the uber-connected attorney, but it is up from only 11% in December, 2007-for a growth of 73% during that 16

month period.

An interesting aside: African Americans! are the most active users of mobile Internet. 48% have used the Internet on a mobiledevice and, on an average day, 29% go online. Additionally, growth In mobile handheld use on an average day since 2007 amongAfrican Americans is twice the national average-up 141% as compared to the 73% average Increase.

While parents grossly under-estlmate their teen-aged children's online social networking activity, teenagers9 repeatedly monitor socialnetworking websltes throughout the day. Baby Boomers are making inroads into social networking, but they complain they feel "leftout"10 and that the experience Is not targeted to their age group. Contrary to the media reports saying "Grandma's on Facebook"", theexperience remains largely the province of the young as illustrated by a recent Pew Internet project'2 report. Use of social media Is most

pronounced among those 25 years of age and younger, with sharp cut-offs as we age.

Percentage (by age) with social network profiles

.00

80

60

40

20

0

14C Amertcan SocIety of 1I1aJ COnsultants 2009Novenmer 2009

APPENDIX D 53

This pattern is also true among attorneys, who are "more connected"I) than their cohorts in the general population. Yet, even withhigher use among attorneys in general, younger attorneys are more comfortable with social media than their older colleagues. A recentsurvey conducted for lexisNexis reports that 86% of attorneys between the ages of 25 and 35 are members of social networks compared

to only 66% of those over age 46.

In short, social media is a fact of life. If the current patterns hold true, we will see increasing numbers of jurors for whom socialnetworking is so habitual and life-integrated, they will be hard-pressed to see the justification for abstaining from "updating their status"during trial. Really. If a burglar can't resist checking his Facebook14 status while in the high-adrenaline process of burglarizing your home,what's to stop a juror during courtroom tedium? And as you'll see on the following pages, it isn't just jurors breaking the rules.

Who's doing it? Attorneys, judges, witnesses, parties and jurors

While maybe we can understand witnesses, parties and jurors communicating about trials on social media-lt seems like attorneys andjudges should know better! And most do. There are several examples of both judges and attorneys who became ensnared in socialmedia impropriety.

JudgesLets start with the magistrate in England'5 who got in trouble for tweeting about his cases-seemingly step by step by step. Heended up being turned in by a fellow magistrate who saw the tweets and complained. So, the judge tweeted his explanation: "Ididn't tweet whilst sitting in court but in the retiring room during the break and at the end of the hearing."

Another judge met a lawyer in chambers during a divorce/child custody case and then "friend ed" him on Facebook where theycommented on the case via Facebook. The wife in the divorce found out about the "friendship" after the case ended andcomplained. Oh dear. How about a public reprimand from the State Judicial Standards Commission? Ex parte, anyone?l6

And finally, a judge inadvertently made public some of his own off-color humor on his family's supposedly private web server. Athree-judge panel admonished him for being "judicially imprudent"17 in not securing the web server.

AttorneysBlogging about a "Judge Clueless," thinly disguised case facts and client Identities resulted in a 19-year assistant public

defender's losing her job.

Another attorney blogged about a case while he was a juror on that case! Forty-five day suspension, $14K In legal fees and

finally, lost his job'9.

A young attorney asked a judge for a delay due to a death in the family. The judge granted the delay but then checked theattorney's Facebook2O page and saw partying but no real grieving going on. The lawyer sought a second delay. The judgedeclined and contacted a senior partner in the firm to share her on-line research. The young attorney has since "un-mended"

the judge.

And finally, a Florida attorney blogged about a judge calling her an "evil, unfair witch"2'. He claimed it was "free speech". The

State Supreme Court begged to differ.

WitnessesDuring a video deposition, the deponent (in California) and his pro hac vice counsel (in Michigan) were shown only from thewaist up. Turns out they were textlng "below the waist"12 and PHV counsel accidentally texted plaintiff's counsel. Court orderedfor the disclosure of the text messages which violated Federal Rules of Civil Procedure.

A mistrial was declared when a Circuit Court judge in Florida discovered a witness texting his boss23 while still on the standduring a side bar conference. And that's not all! The same witness had been reprimanded for texting24 another witness In the

same case during deposition two months earlier!

PartiesA doctor who blogged under the pseudonym "Flea" decided to blog his own medical malpractice trial. He blogged about thetrial, his Impressions of the plaintiffs' lawyer (whom he nicknamed) and said jurors were dozing off. He was on the stand when,in a "Perry Mason moment" the plaintiff attorney said, "Are you Flea?" and he actually admitted he was. The plaintiff's attorneywas obviously prepared to delve into the blog In open court and the case settled25.

15C AmerIcan SocIety of Trial Consultants 2009NO¥nber 2009

APPENDIX D 54

The trial of a man being prosecuted for third-degree rape and sodomy ended in mistrial when a juror reported receipt of a textmessage16 sent from a relative of the defendant. The defendant remains in custody (unless his $25,000 bond has been paid) anda new trial is scheduled for February 2010.

And finally, a New York model sued a billionaire for pressuring her into sex when she was only 16. Reporters found her MySpacepage17 and reported that "she" was in fact, a "he" and was probably much older than 16 at the time of the alleged affair. Hersuit against the billionaire fizzled but she then sued the newspaper for defamation. The judge did not support her second suit.

For each of these examples there are countless others. After all that, you may find the stories on jurors to be disappointing! They are, ingeneral, not as colorful as the attomeynudgelwltness/partles stories but they have caused a major stir. Juror stories will be presented intwo groups: jurors doing 'research' and jurors communicating about cases while sitting in judgment. The Irony is that in virtually everycase, the violator Is usually very sincere that their Intent was Innocent, and (in the case of jurors, at least) they did not perceive what theywere doing as being a material violation of the rules.

Jurors using the internet to do research, everywhere, including during jury duty

There are many recent cases where we have learned that jurors have done research and sometimes their research has disrupted court

proceedings.

In March, 2009, a federal drug trial was derailed when the judge discovered that nine of the 12 jurors had done internet researchon the case. They were eight weeks in when the mlstrlaPI was declared. When asked why they did the internet research, onejuror replied "I was curlous"29.

August, 2008 in England: A judge in a manslaughter trial received from a seated juror a Coogle Earth map of the alleged crimescene and a list of 37 detailed questions about case. In another alleged child cruelty trial, a juror conducted Internet research30on the defendant.

Juror research is not always on the internet. Sometimes it's done in the bathroom. The recent Widmer case found jurorsexperimenting to see how long It would take for human skin to dry. The retrlalJ1 is scheduled for next year and in mid-September2009 Dateline NBQ2 ran a television show on the case!

Some of the stories about juror misconduct are so outrageous they have taken on the power of urban legend, so be careful of believingtoo much... especially if you read about It on the internet!

Jurors communicating about CClSe5

I These are illustrative only. There are other stories floating about the internet butthis sample offers a snapshot of how jurors communicate in violation of courtroomrules.

November, 2008: An English juror conducted a Facebook poll to determine herverdict. A juror was uncertain which way to vote on a jury in a child abduction/sexabuse case so she posted details about the case and then held a Facebook poll tohelp determine her vote. She was dismlssed33.

September, 2009: Pennsylvania jurors consistently updated their Facebook pagesduring trial. Defendant was convicted but lawyers laying groundwork for appeal34.

. March, 2009:"1 just gave away TWELVE MilLION DOLLARS of someone else's

money" tweeted3S a juror In the case against Stoam Holdings in an Arkansas court.Defense asked for a retrial but juror says he tweeted after the trial concluded.

July, 2009: A Bronx juror triended a witness. A Bronx schoolteacher-juror sought outa firefighter witness on Facebook while jury was deliberating and issued a 'friend' Invitation. The firefighter responded after thetrial was over and then reported her. She says "that was a total mistake. I should not have done that".36

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APPENDIX D 55

We've seen that both people who should know better (judges, attorneys) and laypeople (witnesses, parties, jurors) can, and do, getcaught in the web of social media. It is so easy, so constantly present, we forget the same rules about communication apply to these

new forms of communication.

Why is this happening now?

Some would say that people are more self-centered now and do not consider the impact of their behavior on others. This seems an easyexplanation (without any empirical support) and the answer is most assuredly more complex than that. We live in an era when access toinformation is ubiquitous. We are used to having a question cross our mind and checking for the answer37. We do it without thinking.And jurors do too. A recent quote38 in an article on jurors doing research on the internet illustrates the habitual nature of social media in

our lives:"People tend to forget that e-mail, twittering, updating your status on Facebook is also speech. There's an impersonality about

it because it's a one-way communication-but it is a communication."

In Harris County, Texas this year, a tech-savvy court administration decided to provide wireless internet access in the courthouse. Whatgood do we anticipate will come from that? When our access to data via the internet is so available, some wonder if it is even possible tocontrol juror access39 to data any longer. And jurors are not allowed to ask questions in trial. Questions do come up. How can they findthe answers they believe they must have to understand the facts presented at trial? Google40. Is that witness' alibi about time to drivefrom one place to another accurate? Check Google Maps. Complex technology underlying a patent claim? Simplify it4' via Wikipedia.Jurors may not see this as 'wrong' but merely clarifying and unfortunately, less tech-orlented judges may not understand42 the

technology enough to know how to Instruct.

The issues we need to address are juror curiosity and juror naOivete about why such behavior is prohibited. There are good reasons for therules of the legal system but we have to educate jurors and train ourselves to anticipate the questions that will arise and modify our case

presentation to respond to them.

Legal system sentimentsThe legal system has reacted with distress to the steady stream of social media/social networking incidents within its purview. The focushas been on revising jury instructions so that jurors are explicitly told to not do internet research. Proposals include multiple ways of

modifying jury instructions:

An e-discovery43 blog recommends asking the judge to expand boilerplate instructions to include explicit education about whyjurors should not do research (including internet research), what will happen if they do, and that jurors should help the court

enforce that restriction.

The Jennifer Strange (water intoxication as a result of a radio station contest) case has resulted in revised jury instructions in aSan Diego court that specify, "Do not use the internet"44 and jurors are asked to sign declarations saying they will not usepersonal electronic and media devices (including computers, cell phones and laptops) to research or communicate about any

aspect of the case.

The Findlaw Knowledge Base offers a "Motion for the Court to Further Issue Preliminary Instruction to Jurors"45 which theyre<:ommend be given to jurors at each recess and lunch and perhaps even have the entire instruction re-read to jurors at the

beginning and end of each day.

"You may not receive information about this case from any source other than what you are presented in thisCourtroom concerning the case. That means do not "google" any party or lawyer or court personnel in this case; do notconduct any research whatsoever on the Internet about this case or the parties or facts involved in it; you may not"blog" about the case or events surrounding the case or your jury service; you may not "tweet" about anything to dowith the parties, events or facts in this case or your jury service on this case. Do not send any email to anyone conveyingyour jury experience or information about this case. In the jury room, you are not to use your cell phone at recesses orlunch to call anyone to ask questions about issues in this case orto report facts about this case. You may not useFacebook, YouTube or any other "social" network on the Internet to discuss your jury service or issues in this case orpeople involved In the case, including the lawyers. Do not attempt to recreate by experiment at home any evidencewhich you hear as testimony In this Courtroom. Failure to abide by these instructions could result In your being found in

contempt of court, or cause the trial to end."

C AmerIcan SocIety of ntal Consultants 2009November 2009

APPENDIX D 56

A California court had to excuse an entire panel of 600 jurors when several of them admitted they had conducted Internetresearch on a case. Jurors on that panel expressed confusion about whether "not doing research" applied to the internet. SanFrancisco Superior Court46 Is proposing a rule that would become operative on January 1, 2010:

"You may not do research about any issues involved in the case. You may not blog, Tweet, or use the Internet to obtain

or share information."

Others have recommended that the detailed instructions about internet device usage be repeated often47 and that they be very

specific: "No Blackberry. No Google. No Twitter. Nothing."

The Michigan Supreme Court is the first to ban all electronic communication by jurors during trial. Their new rule48, effectiveSeptember 1, 2009, requires "state court judges to Instruct jurors not to use any electronic communication devices while In thejury box or during deliberations. Jurors will also be told that they cannot use electronic devices to obtain or disclose information

about the case when they are outside the courtroom".

Public sentiment

Public sentiment about this issue is mixed, but falls in three general categories.

The New York Times article on jurors and the internet49 gathered almost 300 comments veryquickly. Most of the comments were along the lines of "take away their phones!"

A second group (not as large as the first but substantive) thought that the legal systemshould figure out how to deal with a new issue because it wasn't going to go away. They sawthe expectation that confiscating jurors' phones would be taken as silly and not reallyaddressing the issue since jurors could simply do research at home after hours.

A small (but very vehement) third group thought that the efforts from the legal system tokeep jurors off the internet and from doing research was a systemic effort to keep jurorsfrom learning the truth and that jurors, therefore, needed to dig deeper to uncover thetruth. This group was clearly negatively disposed toward the court system, but there was adarker undercurrent of suspicion and governmental interference with real justice.

While the first two perspectives make rational sense, the third is disturbing in the strength of the belief that legal rules in place for yearsare there to circumvent true justice. While it is a small group, it is a loud and angry group and needs to be considered. A sampling of theircomments50 follow, but keep in mind that the article to which they are responding was posted on March 17, 2009, at about 2:00 p.m. Allof these comments were submitted within 60 minutes of the time the article was published, and there were over 300 at the time the

comments were closed:

Take their phones

Dave, Brooklyn, NY, March 17th, 2009, 2:22 pm

Simple solution here: confiscate all cell phones, pagers, cameras, or palm pilots before jurors enter the courtroom. C'mon, is this

really that difficult a problem to solve?

Steven, Parsippany, NJ, March 17th, 2009, 2:22 pm

That's nice...in a time when Florida along with the vast majority of other states face record deficits, let's cost the state a fortuneby breaking a rule everyone who watches television knows. There's no need to change any rules...these people are just idiots.Everyone knows you're forbidden to research a trial you're sitting on the jury of. This is no different from a juror reading aneditorial in a newspaper. Now, luckily, we can catch the jurors.

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APPENDIX D 57

We have to figure out how to make this work

Csdiego, Washington, DC, March 17th, 2009, 2:05 pm

Jurors have always been on their honor not to look up facts of the case. The difference now is that, with Facebook and Twitter,it's easier to find out when a juror has broken the rule. I admit that when I was a juror a few years ago, I broke the rules andwent to have a look at the intersection where the crime took place, just out of curiosity. That didn't Influence my judgment atall, and the jury ended up hanging anyway.

Jlt. Ottawa, March 17th, 2009. 2:22 pm

This is the new reality. The legal system will have to adjust; it can't just rely on the rules developed for jurors in medievalcommunities.

They are trying to hide the truth we can't let them get away with it

Bill, Camarillo, CA (Los Angeles), March 17th, 2009, 2:43 pm

If evidence and testimony provided to jurors in the courtroom is incomplete, I feel that any rational and responsible juror wouldseek additional information on their own. The object of any court proceeding is to ascertain the facts and arrive at a fairjudgment using ALL facts obtainable by any means available. If I am ever called and sit on a jury, you had better believe thateverything said will be recorded and photographed so I can take it home and do whatever research is required to unravel thecase using due diligence.

James, Los Angeles, March 17th, 2009, 2:46 pm

The entire adversarial judicial system is based on the judge and the attorneys being in the know about everything and the jurybeing In the dark about some things. Why? Does ignorance make for impartiality? Why does a judge know better than the jurywhat kind of evidence is biased or not? Isn't It problematic when the trier of fact is given limited facts? The whole ancient systemis classist. Messy information cannot be pre-sifted into biased and not. It's a mess and that is why there is an enormous amountof injustice.

Suzanne Cordier. Portland. Oregon. March 17th, 2009. 2:48 pm

Fully informed jurors? Oh, no. How will lawyers manage to continue subverting truth and justice now?

Edward Virtually, United States, March 17th, 2009, 2:48 pm

I'd love to know the justification for allowing judges to exclude evidence not challenged by the defendant, as it seems littlemore than a way to rig the outcome of the trial by suppressing facts inconvenient to the outcome desired by the judge and/orprosecutor.

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APPENDIX D 58

Recommendations and strategies for addressing the issue of jurors and the internet

The scope of the problem is large and might seem daunting. But there are a number of things that can be done to improve the likelihoodthat jurors will abstain from doing internet research on the case for which they sit in judgment.

Keep in mind that due to open records requirements, nearly all pretrial filings are available on the internet, Including motions in limine,joint submissions, witness lists, etc. These are clearly matters of great sensitivity, and it is crucial that jurors understand that they arebarred from accessing anything related to a case they might be called on.

What is inescapably clear is that instructing jurors to avoid internet activity that touches on the case issues is no more effective than acourt instruction to be fair-minded. Most do, but as a practical matter many find it impossible. If it is not dealt with in a very pointed andthorough voir dire examination, there are going to be problems. Instructions are crucially important, but are not going to be enough.

1. Instruct jurors in the initial summons for jury duty that they are to refrain from any effort to learn about cases that may be goingto trial at the time of their summons. It must be made clear that this includes newspapers, internet and electronic research, or

personal investigations.

2, If the venue makes use of a central jury facility, have jurors re-instructed that they are forbidden from looking up anyinfonnation about any cases pending before the court, and have them sign statements of understanding that failure to complywith this is a violation of the law and subject to punishment.

Add voir dire questions that address actual juror internet use (will they be likely to violate the

rule and/or have they already done SO?S1)3.

Ask in voir dire whether jurors would abide by judicial instructions not to do internet researchon the case. If a juror acknowledges they could not abide by that instruction, they are a causestrike. Note the experience of an attorney in a Kansas City trial52: "During voir dire, we askedwhether jurors would abide by instructions to not do research on the Internet, and probably six

to 10 potential jurors said they could never abide by that."

4.

5. Revise jury instructions with specific language about electronic device usage (iPhones,Blackberrys, and other smart phones), internet research (Google, Yahoo, Bing, etc.) and social

networking applications (such as Facebook, Twitter & MySpace).

Repeat the instructions, at the start of the day and the end of the day, at breaks and recesses.Leave the instructions fresh in the minds of jurors.

6.

Have jurors sign declarations that they will not research the case details on the internet.7.

Educate jurors on the importance of hearing a case based only on facts presented in court, reporting any outside research ortext messages, and to remind each other in the deliberation room that they are to make decisions based only on what is

presented as evidence.

8

Encourage jurors to think of the courtroom as a playing field where both sides have agreed to play by a set of prescribed rules.One of those rules is that the party(s) on trial will be judged only by a set of facts that both sides have had an opportunity to

examine and challenge.

9.

10. Make it clear that violations of these rules are a violation of law, for which punishment can be imposed. Make it important, not

pro forma, and not merely polite.

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APPENDIX D 59

11. Satisfying the jurors' reasonable "need to know" can gain compliance with the rules.

a. Historically, jurors are told what they can't do or what they can't know, without explaining why that is the case. Manyjurors take the position of "Really? Alright, if you won't tell me I'll find out for myself!" The level of informationprovided by the judge is usually discretionary, and many judges are beginning to explain the reasons for the rules. Forexample,

. Why no internet research? "In court, anyone who is accused of something deserves the right to face theiraccuser. We can't try people by rumor or innuendo. And we can't put Wikipedia on the stand and questionwhy they say what they do..."

2 Insurance coverage can't be considered? "The reason this can't be considered is that the Insurance companieshave a right to claim any past expenditures they have made in the case, if the lawsuit results in an award forsomething they have paid. So it isn't fair or reasonable to consider to consider insurance coverage."

b. Allow questions by the jury. To the extent that they have reasonable and proper questions for witnesses, they are lesslikely to conduct research on their own If the witnesses addresses them more completely. Also, they feel more fullyengaged in the process, rather than a passive (If not captive) observer.

We can't expect jurors to stop looking for answers to questions that arise for them-they have felt the pleasure of quick and convincingresearch tools, and many refuse to set them aside. Our mock trial work and post-verdict debrienngs of jurors teaches us again and againthat jurors take their work seriously and want to do the right thing. We have to take seriously the responsibility of teaching them how todeliberate both effectively and faIrly in the 21st century.

Reference list

A/I URLs In this reference list were accessed lost on October f, 2009. For easier viewing of the references listed below, access a copy of this

paper with 0/1 of the references below presented as /Inks to their sources.

1 Editorial: The curse of the Infonnatlon society http:!/www .daliasnews.com/sharedcontentJdws/dn/opinion/editorials/stories/DN-

jury _1gedi.State.Edltion1.23c8122.html

Web of Justice?: Jurors' Use of Social Media http://www.citrn@dialaw.or~/blo~/2oo9/web:justic~urors-use-social-media

)Adults and Social Network Websites http://wwwop;cwlntemet.org/Reportshoog/Adults-and-SociaI-Network-Websites.aspx

434 million American adults send text messages on their cell phones h~:llwww.Rewintemet.or.eLPress-Releases/2oos/3~-million-American-ad u Its-send-text -messaies-on-their-c e II-R hones.aspx

5Courtroom coverage In 140 characters http://www.r~.o~/n@ws/mai/33.2/courtroom_coveraie_ln_characters-28.html

6Twftter users are more mobile in news consumption http://www.~ewintemet.org/lnfo~phlcs/Twftter-users-are-more-mobi\e-in-news-consum~tion.as~x

7-8Mobile internet use increases sharply in 2009 as more than half of all Americans have gotten online by some wireless means ~www.pewinternet.ori/Press-Releases/2 0 0 9/ Mobile-internet -use .asp x

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APPENDIX D 60

9Parents Misjudge Sodal Network Habit http://www.n~imes.com'2009/ 0 8/31/technolo~ /lntemet/31 d rill.html? _r= 2

'OSodal Networks: Boomers Feel Left Out http://www.pewintemet.ofilMedla-M entions/2 0 0 g/Social-N etworks-Boom ers-F eel-Left -out.asp x

I'Grandma's On Facebook: New UAB Study Examines Benefit Of InternetAccess, Social Media Networking On Seniors' Health ~www.medica I newstoda~ .com/articles/1644 3 6 .p;hp

UAdults and Sodal Network Websites http://www.pewintemet.orilReports/2009/ Ad ults-and- Social-N etwork-Websites.asp x

'3A legal Battle: Online Attitude Ys. Rules of the Bar htt~:J/www.nxtimes.com/2oo9Jo9J13JusJ13Iawxers.html

I4Felony Stupidity in Facebook Use http:lna~rofessors.~pepad.com/law_librarian_bloil2oo9/o9/felonx-stupiditx-in-facebook-use.html

t5-"When what happens online ends up In court htt~://www.ims-ex~ertservices.com/newsletterslse~tlwhen-what-ha~~ens-onllne-ends.u~-in-court-o91509.as~

11-J1A legal Battle: Online Attitude Ys. Rules of the Bar httg:l.fwww.ny.times.coml200gJogl13.1us/13Iawxers.html

UWhen what happens online ends up In court h~:JJwww.ims-ex~rtservices.comJnewslettersJseptJwhen-what-ha~~ns-online-ends-u~in-court'o91509.as~

23For furors in Michigan, no tweeting (or texting, or Googling) allowedh++~.JI..ft.ft.. I~... ,.~~/ir~J~IIJ~..h~r+i,.I_~li Ir~')11""~:/I a...,-u.. "IS~.. "I.~u...a. ""-'~I"I.I~tl.

I d=12 0 2~ 31952 6 2 8&sl retu m=1&hbxl °iin=1

l4Let's see if you can text him from jail... http://keenetrial.com/bloil2009/08/18 nets-see-if -¥ou-can-text -hlm-from-lalll

25When what happens online ends up in court http://www.ims-e xp erts eN! c es. c om In e ws I e tt e rs/ 5 e pt/wh en-what -h a p p en 5-0 n II n e-end s-u p-

in-court-og1sog.asp

26When the defendant texts the juror... http://keenetrial.com/bloil20091 0 8/21/when-the-defendant-texts-th~u rorl

l7When what happens online ends up in court h~:1/www.ims-ex pe rtservic es. com / n ewsl ett ers/se pt/when-what - ha p p en 5-0 n I i n e-en d Sou poi n-c 0 U rt -0 91 ,,0 9 . asp

28Revlsed jury Instructions: Do not use the Internet httR:JJ~.sl~onsandleio.com/storieshoo9/sep/1~/revised=Jur:x-lnstructlons-do-not -use-internet/? &zinde x=16S o~ 9

19Jurors Improper Use of Today's Technology http://edmondiea~.wordpress.com/2o09/o8/o2aurors-improper-use-of.toda~s-technoloiXl

)OCollapse of two trials blamed on jurors' own online research http:/nicense.icoPxright.net/user/viewtreeuse.act?Fuid=ndk4ntQznaX3D

~

)1Prosecutor: Jury can be seated in drowning retrial http:flwww.modbee.com/news/national/storx/859069.html

PNBC Program Examines WIdmer Murder Trial: 'Dateline NBC' Airs Coverage On WLWT http://www. wlwt.com/news/2o~862B/detail.html

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APPENDIX D 61

33Juror dismissed over Facebook poll: 'I don't know which way to go, so I'm holding a poll' htt~:llwww.theregister.co.ukJ20o8/11/261

facebook_trial_DolI!

J4Revised jury instructions: Do not use the Internet htt~:II~.siinonsandieio.com/stories/2ooQ/s~/1~/revisedju[X-instructlons-do-not -use-Internet/? &zlndex=16 S 04 9

35An Interview with the Juror "who tweets" http://www.faxettevillefixer .comhoog/o3/13/an-lnterview-with-the-luror-who-tween[

36Friending the firefighter. Newsday, July 31, 2009, pa05, News section.

37Pandora's box: the Internet, the power of 'knowledge', and Irrepressible juror curiosity http://keenetrial.com/blog/2oog/o8/2S!pa n d 0 ras-bo x . the-i nt ernet . th e:S2° wer .of .kno wi e d i e-a n d oj rr@pressibleo!uror-curlo s It~ /

"'Revised jury instructions: Do not use the Internet httR:llwww~.sienonsandieeo.com/stories/2oo9/seR/13/revised-'u(X-instructlons-do-not -u se-i nt ernet/? &z i nd ex = 16 5 0 ~ 9

"Jurors Tweet, 810g, Research & Send Updates from Courtroom htt~:llwww.downtheavenue.com/2oo9/0~/'urors-tweet-bloi-research-sen d -u ~d a t es- from-c 0 u rtro 0 m. htm I

4OFor jurors in Michigan, no tweeting (or texting, or Googllng) allowed http://www.law.com/jsp;/nlj/p;ubarticlenlj.jsp;?I d =12 0 2~ 319 52 62 8 &slretum=1 &hb xlo&ln=1

4"When all that Twitters Is not told: Dangers of the online juror' (Part 1) htt~://www.rockwallheraldbanner .com/o~inionl

local_5to~ _1351~O13Z .html?Ke~ord=5econda~5to~

41For jurors In Michigan, no tweeting (or texting, or Googtlng) allowed httQ:llwww.law.com[js~/nlj/~ubarticlenlj.js~?

Id=1202431952628&slretum=1&hbxloiln=1

43Googllng and Tweeting and Facebooking, Oh My! Jurors Conducting Outside Research During Trial !lUp:IIediS-tQy~ry..qUirle~~OrnJ

44Revised jury instructions: Do not use the Internet h1W:llwww~.siinonsandleio.com/stories/2o09/sep/13/revised:ju[X-instructions-do-not -use-internetn &zlndex=16s 0.4 9

45Social Media In the Jury Room Can Sabotage Trials h1tQ://knowiedgebase.findlaw.com/kb/2oog/Jul/32426.html

46 Jurors: Keep Your E-Flngers to Yourselves http://blois.findlaw.comltechnolollsthoog/og/jurors-keep:xour-e-finiers-to-xourselves.htrnl

47Mobile Misdeeds: Jurors with Handheld Web Access Cause Trials to Unravel: When jurors have the Web at their fingertips, trials canquickly unravel. Http:llwww.(nsidecounsel.com/lssues/2009/June%2 0 2 0 0 9/Pa i esl M obile-M isd eeds.asp x? Pai e= 2

48Texts and "tweets" by Jurors, lawyers pose courtroom conundrums httj2://www.justice.o[ilcj2s/rde/x chi/Justice/hs.xslf1 0 o~ 9 .htm

49As Jurors Tum to Web, Mistrials Are Popping Up h~:llwww.ny:times.com/2oo9lo3118lusl

18jurles.html

5OReaders' Comments: As Jurors Tum to Web, Mistrials Are Popping Up ~comm unlt¥ .n~lmes.coml comm ents!www .n¥tlmes.coml2 0 0 910 3l18lusl18jurles.html

S'Mobile Misdeeds: Jurors with Handheld Web Access Cause Trials to Unravel: When jurors have theWeb at their fingertips, trials can quickly unravel. Http:llwww.insidecounsel.comllssuesl2ooglJune%202 oog/Pag esl Mobile-M isdeeds.asRX ?Paie=2

"'1..,':"- 2001 0 AiMltcan SodeIy of Mal CoMuttants 2009 Z3

APPENDIX D 62

52Lure of Internet has courts worried about its influence on jurors h~:lltwincities.bizjoumals.com/twincitles/storie5l2oo9losl11lfocus3.html?B=12§2o1§4oo%SE182S130

Douglas L. Keene, Ph.D. [dkeene@keenetrial~] is a psychologist, founder of Keene TrialConsulting and is currently the Past-President of the American Society of Trial Consultants. Heassists law firms with trial strategy (including focus groups and mock trials) on major civillitigation and white collar criminal defense, voir dire strategy, jury selection, witness preparation,and related services. His national practice is based in Austin, Texas [h1tP:II~~~~I:'!~~~.].

Rita R. Handrich, Ph.D. (rhanQr~h@k~~trlal.cQIJJ) joined Keene Trial Consulting In 2000. She is alicensed psychologist with extensive experience as a testifying expert witness. In addition toproviding trial consulting services through KTC, she Is Editor of The Jury Expert. Rita is a frequentcontributor to "The Jury Room" -the Keene Trial Consulting blawg http;JiY!Y:Lw.ke~.al.cQmLb.l9gL.

Citation for this article: The Jury Expert, ?1(6), 14-24.

z-. C a-tcan 5Gd8ty of ~ ContuIt8Its 2001 24

APPENDIX D 63