The Interesting Problem Of Jurors Who Acknowledge Hearing The Judge’s Instruction To Stay Off the Internet But Who Do It Anyway (And Don’t Seem To Realize They Are Doing Anything Wrong)
The judge called the juror who had been tweeting about her boredom with the jury selection process into the courtroom. As a part of the work DOAR offers to trial attorneys, we conduct internet searches on prospective jurors (something the NYC Bar Association describes as required practice). And, we also note Internet activity by those prospective jurors. When this happens, we alert the lawyers with whom we work to such activity.
In this case, our client brought the situation of the tweeting juror to the judge’s attention. The juror admitted that she had been tweeting, but added that since she had not been tweeting about the substance of the case (about which she knew little since the trial had not yet begun), she did not think the judge’s instruction to stay off the internet — which had included a prohibition against tweeting — applied to her with such a tweet. The judge heard her explanation, accepted it and sent her back to the waiting area with the instruction not to tweet at all.
Only an hour or so later, we detected another jury-duty related tweet from this juror. Again, we reported this to the judge who called the juror in again. This time, the judge was more exasperated. She asked the juror why she had tweeted again, even after have been told not to do so. The juror seemed not at all defiant, only somewhat confused, as she explained that it was her habit to tweet, that she lived alone and that this was how she communicated with her friends about the events of her life. The judge excused her from jury duty. While it may be true that these events were idiosyncratic to this juror, it is also noteworthy that she seemed to feel such a strong sense of ordinariness about her tweeting that even the judge’s instruction did not quite reach her – certainly it did not stop her from tweeting.
It is important for those interested in the interplay between the courts and the internet to reckon with the likelihood that many jurors may reach out to the internet in pre-conscious ways. That is, they may not really think about it – they just do it. Many habits (even those that fall shy of addictive behaviors) may have this pre-conscious quality. Instructions that address the behaviors involved – “your thumbs may twitch with the urge to type tweets, but you must not,” may be helpful. And, attention to the positive motives that lead people to want to engage the internet must also be acknowledged.
As the example of this juror revealed, those who go online despite instructions not to, may not feel themselves to be “disobeying.” As a result, new instructions that may promote greater mindfulness of behaviors generally experienced as positive (not as disobedient) and that emphasize the behaviors themselves are called for.