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  • Juror Online Research: Traditional And Creative Approaches To Deterrence

    Amidst growing concern about jurors doing online research about cases on which they serve, judges and judicial groups have sought new ways to deter this behavior.  They have expanded jury instructions on the issue, elicited signed pledges from jurors, and threatened or even imposed sanctions for violators.

    Two recent efforts are noteworthy, one fairly traditional and the other quite creative.  On the traditional side, a Judicial Conference Committee updated the model jury instructions for federal judges regarding jurors’ use of social media to research cases or communicate about them.  The instructions, which judges are encouraged to repeat daily, tell jurors not to “search the internet, websites blogs, or use any other electronic tools” to seek information or to help them in deciding the case.  The instructions offer a rationale for the ban, noting that that internet sources can be incomplete or inaccurate, and that decisions must be based solely on what is heard in the courtroom.

    A more creative approach was taken by US District Court Judge Lucy Koh, who presided over the recent Apple-Samsung trial.  When she heard on the first day of trial that a juror had seen a newspaper headline regarding the case.  Judge Koh went beyond the traditional instructions and struck a deal with the jurors.  If they promised to avoid newspaper coverage and refrain from going online to seek information about the case, she would have her librarian keep track of all of the media coverage of the case and present it to the jurors as soon as the trial was over.  And so she did: Jurors walked out of the courthouse on the last day with notebooks filled with 42 articles covering the case, from the first day to the last.  Now that the case was over, they could read to their hearts’ content.

    Judge Koh’s deal reflects something that most jury instructions on social media lack: a validation of the jurors’ experience that what they were being asked to do – avoiding all media coverage of one of the most widely covered trials of our time – was hard, and that they deserved something in return.   We will never know for sure if her deal really did stop jurors from going online.  But, her fundamental acknowledgment of the jurors’ curiosity and her recognition that seeing the coverage would provide gratification (albeit delayed) undoubtedly reduced the frustration that jurors can feel when simply told, “Don’t look.”   As courts continue to wrestle with the issue of online jurors and the threat of “Google mistrials,” creative approaches like Judge Koh’s should be encouraged and lauded.

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