Jurors are sworn to tell the truth when they are initially examined by the judge and attorneys when they first arrive in the courtroom. This is during voir dire. If not stricken from that jury for cause or peremptorily, they take a second oath to “well and truly” do their duties, which include following all the dictates of the judge.
Mistrials occur sometimes, but they are much disliked by judges and judicial administrators because they require another trial from beginning to finish. All that time, all that expense. A jury trial takes a lot of preparation by the lawyers and witnesses. A jury trial is an emotional and planning event that causes high anxiety and great concentration. Nobody wants to do it all over again, but that is what is required when a mistrial takes place.
Mistrials can result from a lot of things: an error committed by one of the attorneys, an error in evidence or law that cannot be fixed during the trial, some unusual event that prevents going forward or that interrupts the appearance of a witness, and sometimes jury misconduct.
Now there is a new way for jurors to misbehave. Before, a mistrial could be declared if a juror communicated with someone during the trial or during deliberations. With advances in electronic communications come new ways to communicate improperly.
A few months ago a juror in Florida was doing research on the Internet while sitting as a juror in a federal drug trial. He admitted to the judge he did that in direct violation of the judge’s order. Just to be safe, the judge inquired of the remaining members of the jury, and eight more admitted doing the same thing. Shocked, United States District Judge William Zloch declared a mistrial in the case.
The same week, Stoam Holdings, a building products company was seeking a new trial from a judgment entered against them in an Arkansas court for $12.6 million, claiming a juror improperly used Twitter to send updates during the civil trial. One of the entries from Johnathan Powell, the juror in question, was this: “So Johnathan, what did you do today? Oh nothing really, I just gave away TWELVE MILLION DOLLARS of somebody else’s money.”
A few days later, defense lawyers in the federal criminal trial of a former Pennsylvania state senator demanded the judge declare a mistrial before the verdict was delivered. Lawyers for defendant Vincent Fumo, on trial for corruption, said a juror posted updates on the case on Twitter and Facebook and claimed the juror had even told his readers that a “big announcement” was coming on Monday. The judge decided to allow the deliberations to continue. The jury found Mr. Fumo guilty, and Mr. Fumo’s lawyers will use the internet postings as grounds for appeal.
Jurors are prohibited from seeking information about the case outside the courtroom. The judge always instructs them to base their verdict only on the evidence presented to them during the trial, not on anything they may have heard before and certainly not on anything else during the trial. Some evidence is not allowed to go to the jury, and the jury is admonished not to consider what they think that evidence would have been. But now, using their cellphones, jurors can look up anything on the internet while sitting as jurors. They can also share their opinions or describe trial events with their friends outside, which is also prohibited by routine jury instructions. Everything involved with a jury and its deliberations is supposed to be secret, private, confidential.
Now attorneys have begun to check the blogs and web sites of prospective jurors and jurors. Jurors, of course, think they are trying harder to do a good job by investigating on their own. Sometimes there are questions that arise during the trial, and jurors are not allowed to ask questions. So how are they going to find answers they believe they must have to understand the trial they are to judge? Why not just Google it?
The rules of evidence, developed over centuries of experience are intended to ensure the facts presented to the jury have been scrutinized by both parties to the lawsuit. That is how the adversary is designed. “You lose all that when the jurors go out on their own,” Professor Olin Guy Wellborn, a law professor at the University of Texas, said.
For these reasons, come courts are restricting the possession and use of cellphones during trials. Some judges confiscate the phones during the days in the courtroom. Most judges do not. And no one can know what jurors do at night on their computers. Computer access would cease only upon the sequestering of the jury, not a common practice except in long or very serious cases.
In the earlier-mentioned federal criminal trial in Florida before U.S. District Judge William Zloch, defense lawyer Peter Raben had fought charges for eight weeks of trial that his client had illegally sold prescription drugs over the internet. After the entire trial had been completed and the jury was deliberating their verdict, one of the jurors contacted the judge to say another juror had admitted dong outside research on the case over the Internet.
After questioning the juror, the judge considered going forward with the trial without this juror, if the offending juror had not communicated the research to other jurors. That’s when the judge discovered that eight other jurors had done the same thing: looking up newspaper articles, conducting Google searches, reading definitions on Wickipedia, and searching for evidence that had been excluded from the trial by the judge. “I was curious,” explained one of the jurors.