Anita Ramasastry

Why Courts Need to Ban Jurors' Electronic Communications Devices

By ANITA RAMASASTRY
Teusday, August 11, 2009

On September 1, a new rule will go into effect for Michigan state courts: Trial courts must instruct jurors that they cannot use iPhones, cellphones, or other electronic communications devices as they deliberate about their verdict. Moreover, Michigan is only one of many jurisdictions grappling with this issue. And in some instances, jurors' use of electronic applications such as Twitter has even led to mistrial allegations.

Citizens have become increasingly reliant on such devices and applications. Indeed, many use them incessantly, as a lifeline to their friends, relatives, and colleagues -- especially when they are at meetings, conferences, or otherwise away from their normal office or home routines.

But, of course, the courtroom is different – a place in which jurors are meant to consider only the evidence before them, discuss it only with each other, and do so only after summations, during the period of their deliberations. Thus, though jurors may be tempted to research issues by searching on Google or visiting Facebook, doing so is completely forbidden. So is their communicating about a trial to an outside person or, even worse, asking that person's advice.

In this column, I will review the current Michigan Supreme Court rule banning jurors' use of electronic devices. I will also argue that it may be wise for courts to go further – as some already have done – by simply asking jurors to check such devices at the courthouse door.

The Specifics of the Michigan Supreme Court Rule

The Michigan rule requires trial courts to instruct jurors that until their jury service is concluded, they shall not "use a computer, cellular phone, or other electronic device with communication capabilities while in attendance at trial or during deliberation." However, such "devices may be used during breaks or recesses," as long as they are not used to "obtain or disclose" information about the case.

The rule also states that when jurors are not in court, they will be instructed not to "use a computer, cellular phone, or other electronic device with communication capabilities, or any other method, to obtain or disclose information about the case…."

According to news reports, the Michigan Supreme Court implemented the new rule in response to prosecutors' complaints that jurors were using their cellphones and other devices during trial to access the Internet and discover their own information – thus compromising the trials' integrity, and potentially tainting the judicial process.

Jurors' Use of Electronic Devices Has Led to Mistrials, But Only Sometimes

News reports indicate that many courts have experienced problems with jurors' accessing electronic devices during a trial or while deliberating. Meanwhile, though they are unlikely to be caught, some jurors may also be breaking the rules by doing their own Internet searches when they go home at night – for many jurors are not sequestered during a normal trial. Most jurors have the chance to go home and use Google, Wikipedia, MapQuest and the like to try to unearth further information about a case or verify particular facts presented at trial. And usually, only the judge's strong instructions are there to stop them.

This past spring, in Florida, a juror in a major federal drug criminal trial admitted to the judge that he had been doing research on the case on the Internet, directly violating the judge's instructions. As it turned out, the juror was not alone. When the judge, questioned the rest of the jury, he learned that eight other jurors had been doing the same thing. The judge rightly declared a mistrial -- after eight weeks of wasted effort and expense by prosecutors and defense counsel.

In some cases, juries have been allowed to proceed even after evidence of improper electrionic communications. In April, for example, an Arkansas judge ruled that a juror's postings on Twitter during a trial did not adversely affect a $12.6 million judgment against a building products company. Lawyers for that company claimed that the juror's messages during trial showed bias. One Tweet said, "just gave away TWELVE MILLION DOLLARS of somebody else's money." But the judge upheld the jury's verdict, finding that the Tweets were in poor form but not prohibited.

A Pennsylvania judge ruled similarly in the high-profile corruption trial of a former state senator. In the Pennsylvania case, a juror posted updates about the case on Twitter and Facebook, telling readers that a "big announcement" was coming. The judge, however, let the jury deliberate and it delivered a guilty verdict. It is not surprising that defense counsel have appealed the decision.

And last month, the Indiana Supreme Court heard an appeal of a civil case in which a juror accepted a phone call during deliberations. The verdict was allowed to stand, but not without a stern warning from Justice Brent Dickson. Allowing jurors to have cell phones or other devices in court, he wrote, is "fraught with significant potential problems impacting the fair administration of justice."

Courts Differ on the Issue of Whether to Ban, or Just Restrict Jurors' Use of, Electronic Devices

Currently, there is no consensus in the U.S. on how to deal with the problem of jurors' use of electronic devices, according to the National Center for State Courts. Some courts ban electronic devices from the courthouse – asking jurors to leave them at the door. Some judges let jurors keep cellphones but tell them to keep them turned off. Others allow cellphones to be used during breaks. Some courts, like Michigan's, tell jurors not to use their devices in the courtroom or during deliberations.

According to the National Center for State Courts, a number of states have grappled with the problem. The Center surveyed court administrators to find out what courts are doing to stave off the use of electronic communications devices during trials.

To get a sense of the diversity in policies, consider these examples: New Jersey allows jurors to bring cell phones to court, but they must be turned off during trial. In Malheur County, Oregon, and federal court in the Western District of Louisiana, jurors are not allowed to bring cell phones to court at all. In Alaska's first judicial district, a court bailiff confiscates cell phones during jury deliberations. In Minnesota, one county's jury summons makes specific reference to a ban on cell phones, pagers, and PDAs. It explains that the policy "was enacted in the Second Judicial District (Ramsey County) in the state of Minnesota after two mistrials were declared when jurors used cell phones during deliberation against the Court's order," and mentions, "Phones are available in the Jury Assembly Room."

In Multnomah County, Oregon, the court provides a jury instruction that makes explicit reference to certain electronic devices and activities. The court tells jurors: "Do not discuss this case during the trial with anyone, including any of the attorneys, parties, witnesses, your friends, or members of your family. 'No discussion' also means no emailing, text messaging, tweeting, blogging or any other form of communication."

The instruction also cautions jurors about conducting Internet searches and does so in a very clear and commonsense manner: "In our daily lives we may be used to looking for information on-line and to 'Google' something as a matter of routine. Also, in a trial it can be very tempting for jurors to do their own research to make sure they are making the correct decision. You must resist that temptation for our system of justice to work as it should."

Currently, too, an Indiana judicial panel is investigating what can be done about the problem. Last week, the Indiana Judicial Conference's jury committee assigned staff to draft a rule setting uniform limits on jurors' use of electronic devices during deliberations. The rule is scheduled to be presented to the Conference in October.

Ultimately, Collecting Cellphones at the Courthouse Door May Be the Best Solution

While Michigan's rule is a good start, it may not be sufficient. More precise instructions that mention (but of course, are not limited to) applications such as Wikipedia, Google, and the like may be helpful in getting jurors' attention when trial judges instruct jurors not to do research at home. The Multnomah County jury instructions do a good job of making clear what type of electronic communications are prohibited and when they are prohibited. And while jurors are in the courthouse, the best solution will likely be to ask them to check their own electronic devices, yet also make telephones available for their use. After all, justice requires us to pay attention in court and not to be thinking about our next text, Tweet or Web search.


Anita Ramasastry, a FindLaw columnist, is the D. Wayne and Anne Gittinger Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology. She has previously written on business law, cyberlaw, computer data security issues, and other legal issues for this site, which contains an archive of her columns.

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