Judge Shira A. Scheindlin (US v. Viktor Bout, 2011) turned to jurors’ pledges to stop jurors from researching cases online. Her hope was that having jurors sign pledges promising not to research a case online (or elsewhere) would make their oaths more salient and stop jurors from conducting online research. It probably did not hurt that those who signed the pledge faced perjury charges if they did not honor it.
No one knows whether a written pledge will keep jurors more faithful than an oral one. A written pledge does seem likely, however, to promote compliance with the judge’s instructions. It seems reasonable to think that prohibitions against online research contained within lengthy jury instructions may well get overlooked. The court can and does confiscate jurors’ electronic devices, but once the jurors leave the courtroom and reclaim their devices, the world of the internet is again available to them. Some have proposed asking jurors to provide their online IDs and passwords so that jurors’ internet use can be directly monitored during trial. Such a measure, however, is intrusive and potentially rife with First Amendment violations that the jurors did not, should not, and possibly cannot be asked to sign up for.
The First Amendment inherently protects the right to privacy via freedom of thought, expression, and intellect, an old constitutional protection that has been extended to new internet usage. Supreme Court Justice Louis Brandeis in Olmstead v. United States (1928) stated: “The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness…They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men.” Thus, as a result of First Amendment protection, actions that infringe on the “right to be let alone” or that intrude upon jurors’ private affairs can be frankly unlawful.
Juror pledges, then, without internet monitoring, may be the next best step in the pursuit of a viable solution to the problem of jurors using the internet to research cases. While one cannot say for sure that jurors’ pledges will solve the problem of the “online jurors,” they certainly cannot make things worse. Juror pledges are worth a try.