PRESUME THAT SOME JURORS WILL USE THEIR SMARTPHONES IMPROPERLY

April 30th, 2012

One of the common questions in litigation when preparing for trial concerns what will come “in” to evidence and what will be excluded. During this process, one of the big questions that needs to be answered is, “is the information we are worried about publicly available.” If it is, you should assume it will be known.

This is for two reasons:

1) because for many people Googling the unknown now happens on impulse; and,

2) so many people communicate with others through technology that even if the juror doesn’t do outside research, one of their friends may have and may communicate it to them to “help” them.

An excellent explanation of the phenomenon of how Smartphone technology is changing the way people function can be found in a recent article by MIT Professor Sherry Turkle. In this article she discusses how her research is finding that,

“We’ve become accustomed to a new way of being ‘alone together.’ Technology-enabled, we are able to be with one another, and also elsewhere, connected to wherever we want to be. We want to customize our lives. We want to move in and out of where we are because the thing we value most is control over where we focus our attention.”

With this in mind, there are few activities that would command a juror to give up control which for some must be intolerable. One clear way to cope with this situation is to overcompensate when you turn your phone back on at lunch. It’s almost as easy to imagine a juror doing research or getting information from their online community by accident as it is intentionally.

You may be thinking, Yes, but the warnings from judges on outside research and communication are increasingly stern (true), and the penalties for this behavior have also increasingly received national press (also true). However, what this means is that the jurors with the strong propensity to research and communicate outside jury deliberations will be cleverer about how they influence the group. They will be both more armed and more motivated. A few examples of how this information can arm a juror looks something like,

“I have right here in my notes that…” (it’s not in their notes), or

“I know I heard somewhere that…” (a truthful statement–they heard it from an online friend).

On the motivation side jurors may simply push an issue harder–

“I really think we need to look at this issue in greater detail, it doesn’t seem right to me.”

Or passionately advocate that a particular witness is not credible–

“I feel strongly that the witness was not being truthful with us, I think we should completely discount his testimony.”

So, what to do about it? Assume public information is coming in. Make it a part of your strategy and frame your case in such a way so that it is consistent with your frame. You might even find that you might be able to send a message to your adversaries that you will fight hard to keep certain evidence out when all along your plan is to try your case as if it’s coming in. And remember, while violating court instructions is not something to condone, the motivation behind why jurors do this is good. They want to make the right call.