Twitter Jurors

There's a rule that jurors are only supposed to consider the evidence presented to them at a trial, and not do independent research into the subject matter of a case they are asked to decide.

This rule is there for the excellent reason that not all evidence ought to be considered by a jury. For instance, in an auto accident case, it might be of interest to a juror if the defendant has insurance. And if the juror finds out the defendant has insurance, then it makes it easier for the juror to decide in favor of the plaintiff, because the defendant herself won't be paying the money, her insurance company will. Why do we care about that? Because whether the defendant has insurance has nothing to do with whether the plaintiff deserves the money or not.

Or, in a criminal case, the police might have conducted an illegal search. Certain evidence might have been obtained as a result of that illegal search -- which the defense would move to suppress. The jury ought not to hear about that evidence, for the excellent reason that letting the police violate this defendant's civil rights and use the evidence they obtain will only encourage the police to violate the civil rights of someone who is innocent later on.

But a juror on that trial could pretty easily go home and log on the internet and start doing some research. The result would be the juror would then know the information and what's more, having gone out and researched it himself and noting that it was not offered in court, would infer that it is particularly important information, and use it to decide the case. Doing so is grounds for a mistrial, which as described in this Gray Lady article, is making it difficult for prosecutors to convict bad guys.

Certainly the point of a trial is to get at the truth. But it's also to achieve justice. Evidence obtained through unjust or unconstitutional means is at best highly questionable from the perspective of advancing the interests of justice. Which is why there is some tension out there about the exclusionary rule, and why there will be a similar sort of tension about a juror looking up information on wikipedia and finding things that seem to contradict what an expert witness testified to. Never mind that wikipedia can be edited by anyone, anytime, and the editor might well have been the opposing party or its attorney, acting dishonestly to deceive the juror. People read stuff on wikipedia and think it's gospel truth.

It's bad enough that jurors decide cases not on their merits but rather on the perceived personalities of the parties. But when they then add their viewings of the plaintiff's and defendant's Facebook pages to that already-marginal decision matrix, and you're in a world of chaos. When, oh when, will people learn that they should write their Facebook entries as though every word would be used against them later by their enemies in a court? This is one of the reasons I don't have a Facebook page, and why I'm unlikely to ever have one (and if I ever do, it will be very dull).

Google yourself every once in a while, too, to see what a stranger or an enemy can learn about you. I Google every defendant I sue and every plaintiff who sues my clients. I don't often find much, but when I do, it's a gold mine. I expect that my adversaries are doing the same thing.

I don't know what the answer is. We can't sequester every jury. We can't, and shouldn't, make a juror give up all aspects of their regular life while they're serving. Part of the solution suggested by Doug Mataconis is citing jurors doing this sort of thing for contempt. I think another part of it is in the hands of technologically-savvy attorneys -- they need to find this sort of information first, anticipate what jurors who break this rule might do, and structure their examinations to pre-emptively deal with this.