The unpredictability of jurors has always been a hidden cost of litigation. The risk associated with that unpredictability is a factor often weighing in favor of alternative dispute resolution and settlement. But now there’s a new twist. Some jurors are reportedly seeking their 15-minutes of fame via tweets, blogs, text messages, and other social networks during the trial – and it’s threatening their impartiality.
Jury duty is an important civic duty and reluctant jurors can face serious consequences. First and foremost, jurors must be impartial. They are to suspend judgment until after they’ve heard all of the evidence presented in court. They are not supposed to talk to each other about the case until the case is submitted to them for jury deliberations. They are also not supposed to talk to anyone else about the case, or read or listen to news reports about the case while the case is pending. A juror conducting their own research into the parties at trial is also verboten.
Yet jurors are increasingly bringing technology into the courtroom. At first, the impact became evident with what’s known as the CSI Effect. Named after the popular television series, it refers to the jurors expecting to hear and see the same Hollywood scripted investigations and razzle-dazzle evidentiary techniques they see on TV. Some jurors go so far as to believe that they are qualified enough about the law to take matters into their own hands, even when doing so expressly violates the court’s instructions.
Some courts took a tougher stance than others. When a juror in a California whistle-blower case did their own research instead of relying solely on what was presented in court the judge declared a mistrial. Defendants in a Philadelphia case weren’t so lucky. A juror was allowed to stay on the panel despite openly claiming on the first day of trial that they learned more about the case from the Internet than from the lawyers in court.
As highlighted by Ken Strutin’s recent article, the same thing is now happening with inappropriate tweets, texts, blogs and other social network media. The hidden legal consequences are causing uneven results.
My favorite example is of the juror who posted information about the case on her Facebook page, complete with a viewer poll about the defendant’s guilt or innocence. Fortunately she was found out and removed from the jury. The manufacturer of new a foam insulation product was less successful. After they were hit with a $12.6 million judgment in a case brought by investors their request for a new trial was denied even though a juror was allegedly tweeting about the case before the judgment was issued.
As you can see, the results are highly fact specific and can vary. But one thing is crystal clear; the new communications technology injects another element of risk into the already risky business of litigation.