On August 23, 2017, I saw something historic happen. I saw jurors receive instructions about how to take steps to prevent the Internet from pushing case-relevant information to them. This instruction was of no small moment since the trial was certain to generate a great deal of media attention. New Jersey’s senior Senator, Robert Menendez, was about to be tried in a Newark, New Jersey federal courtroom for allegedly exerting political influence in exchange for gifts and favors from his co-defendant, ophthalmologist Salomon Melgen.
Abbe David Lowell of Norton Rose Fulbright, Menendez’ attorney, raised this issue with Judge William Walls, informing him of the fact that it would not be enough to instruct jurors not to search for case-relevant information on the Internet. Jurors would also have to disable the features on their electronic devices that sent them information unbidden. The Internet no longer waits for us to request information. Based on our location, the content of our emails, our postings to Facebook, the Internet applies algorithms, anticipates our interests, and feeds us information without our asking for it.
Judge Walls, an 85-year old jurist and self-described “dinosaur” when it comes to the Internet, gave Lowell the opportunity to address the jury. Lowell told them how to act affirmatively to turn off push notifications, so that the Internet would not push case-relevant information to them. He told them that it would not be enough for them to avoid initiating searches for such news.
Here is the substance of what Lowell said:
So, we . . . understand the Court’s instruction — . . . it is not to look affirmatively [at] news sources, whether they are print or electronic on matters about the case.
However, each of you who have an Internet source either on your smart phones or your laptops or your desktops, have subscribed to news services such as Yahoo, Google, AOL, whatever. And they automatically will send news stories to you, even if you have a locked phone.
In order to disable that, so you are not inadvertently getting materials that would be about this case or cases that have something to do with this case, then it requires an affirmative act. And the affirmative act is to go [to settings] on your desktop, laptop or smart phones to where you have the ability to disengage your notification, to do that for the news sources which automatically will come to you especially because they may come to you with some algorithm that’s put into your device that you are a New Jerseyite and therefore it might actually push to you stories about New Jersey, including this trial or any other trial.
So, there’s two parts. The part about making sure you don’t go out and look for things about the case or the parties or the people or the events. And the second is that you disengage from your devices and your laptops and your desktops the push notifications or alerts that your news sources will feed to you by some affirmative action.
With this brief instruction, I believe that history was made. Judge Walls, despite his disclaimer about his own Internet expertise, nonetheless recognized the importance of Lowell’s request to educate jurors so they would know how to turn off push notifications. After the jurors modified the settings on their phones, they were then freed from the Internet’s push. And, perhaps, they will be less likely to search on their own, given the court’s clear and highly developed interest in keeping them from getting information pushed to them. That is, Lowell’s instructions and the actions jurors then engaged in to prevent “part 2” may have heightened their commitment to “part 1.”
Particularly in high profile cases, where media coverage is likely to be extensive, it is important that jurors be instructed not only to avoid searching but also to disable the features of their smart phones that bring information to them unrequested. And, finally, we have at least one example where this has happened.