Courts have long been asked to balance free speech and free press rights with the citizen’s right to a fair trial. Technology that gives jurors easy and immediate access to massive amounts of information about people and court issues gives that balancing act a whole new dimension and threatens to tip the scales of justice.

Expecting jurors not to be tempted by a mountain of information just fingertips away is a national issue, one local court officials must deal with as well.

“We have strict rules of evidence, all of which are in place for a purpose. Telling jurors to ignore certain information doesn’t work. It’s like throwing a skunk in the jury box and telling them not to smell it,” said Steve Russell, professor of criminal justice at Indiana University in Bloomington and a retired Texas trial judge.

“As a judge, the thing I want people to understand is the necessity of keeping jurors in the dark about some things during a trial. There is nothing nefarious about it. There is good reason.”

He gives the example of a coerced confession. Under evidentiary rules, it’s inadmissible, but if a jury knows about the confession from a source outside the courtroom, it can prejudice their ultimate decision.

Jurors are not supposed to discuss what they hear in the courtroom outside the courtroom. When making a decision, they are allowed to consider only evidence given in court. But instances where jurors are using technology to break these long-honored rules are popping up more frequently. The justice system will decline if the courts don’t learn to adapt to the realities of technology.

“If someone Googles an event,” Russell said, “they are going to get everything that’s been put online, and that could include a site devoted to one side of a case. Then you not only get one side, but you get one side of questionable material. Often stuff that’s frankly too much like untreated sludge to make it into newspapers makes its way into blogs. And key words bring up those blogs and yes, it could be deadly to the case.”

Jury technology abuse

Occurrences of jurors posting comments on social networking sites during trials and using the Internet to conduct inappropriate research are ubiquitous.

In March, federal Judge William J. Zloch had to declare a mistrial in a Florida drug trial after he discovered nine jurors were doing Internet research on the case in direct defiance of his orders. Eight weeks of trial work, not to mention lots of money, were wasted.

About the same time, an Arkansas court was asked to overturn a $12.6 million judgment because a juror tweeted on Twitter during a civil trial. Twitter is an Internet-based social networking service that allows users to post short messages. Court documents showed a juror, Johnathan Pollard, posted a message during the trial answering the perpetual Twitter question “What are you doing?” with this tweet: “Oh, nothing really, I just gave away TWELVE MILLION DOLLARS of somebody else’s money.”

The recent federal corruption trial of former Pennsylvania state Sen. Vincent Fumo was also likely tainted after a juror posted updates about the case on Twitter and Facebook.

Fumo’s defense attorneys asked the judge to declare a mistrial, but the judge denied the request, and Fumo was found guilty on 137 counts, including obstruction of justice and defrauding the state senate. Obviously, his attorneys will appeal the conviction and quite likely have solid grounds given the content of the Internet postings.

A search for “jury duty” on Twitter will bring up dozens of posts. Most are harmless, including one complaining, “Okay jury duty sucks. Been in this waiting room for 2.5 hrs and nothing has happened. To force this on the public is stupid.” But some tweets come perilously close to crossing the line.

Local courts

Allen County’s courts are somewhat less vulnerable to jurors posting comments during a trial since county judges banned cell phones and other electronic devices from the courthouse in 2007.

The ban was put in place to eradicate annoying distractions in courtrooms, but principally it is a safety measure adopted to protect jurors. “I had people in the building taking pictures of jurors, and that concerned me,” Allen Superior Court Judge Fran Gull said. “I was doing a gang-related trial at the time, and a photograph of a juror was posted online.”

“We’re uncommon. We were the first in the state to ban cell phones in the buildings and one of the first in the state to remove cell phones from potential jurors before that,” Gull said.

The ban can be inconvenient, and many continue to debate its fairness. But the ban does help avoid some of the problems access to expanding technology poses for the justice system.

While many people have the image of jurors being sequestered without access to phones and TV, in Indiana, that occurs only for the highest-profile cases. Usually, they are sent home with an admonishment – quite difficult to enforce – not to read about or talk about the case.

Allen County is not immune to the concerns about technology interfering with justice.

“I can’t identify the case, but I have been involved in a case where a prospective juror improperly went online and Googled the case,” said Mark Ulmschneider, a local attorney who specializes in civil litigation.

“Everyone does this every night about every thought that casually crosses their mind. How often do people Google themselves? But the problem is someone who would Google the judge or the case. You’re going to have two kinds of people. Those like this prospective juror who admit it, and those who don’t,”

He said, “The prospective juror knew enough about the trial. It would be like reading the Cliff Notes, and that really defeats the concept of a trial. There was a time when you couldn’t find all this information. It was damn near impossible. You’d go blind looking at microfilm. Now, search engines are so good you can find it easily.”

Innocent mistakes

Curiosity is human nature, and using Twitter, Google, Facebook and myriad technical gadgets to satisfy that curiosity is becoming second nature. The temptation to learn more about a case after receiving a summons to jury duty is reasonable.

“It may be well-intentioned misconduct,” Ulmschneider said. “But when you are trying to control a trial and filter out the things that shouldn’t reach jurors and ensure that the things they need to know reach them, you have the remarkable ability of people to override the safeguards of our judicial system. The chances that someone is going to do this are so probable it wouldn’t be a fluke to discover that a juror did this.”

Gull said her court puts a large amount of information online in hopes it will satisfy potential jurors’ curiosity. “If you go online to the jury information section, we’ve tried to give people all the information so they won’t have to go beyond that site for information. But there is a point that we just have to trust people.

“My experience with jurors is that they are very candid with us.”

Russell agrees that to a certain extent you have to trust juries to do the right thing. “My feeling is we ought to be able to trust jurors as much as we trust people not to turn on their cell phones on the airplane.” Juries are entrusted with a heavy burden, including determining the fate of a person or large sums of money. “You’re trusting them with a lot more than whether they are going to take their iPhones out of their shirt pocket.”

Jury instructions 2.0

Courts have to trust juries. But they need to update jury instructions at the same pace as technology. With every new iPhone application, courts need to roll out a newer version of user instructions.

U.S. District Court Judge Sarah Evans Barker wisely said courts need to anticipate curious jurors and be prepared for it. “You have to acknowledge the obvious. People are going to go online. They are used to using it, and they like using it. Unless we provide specific instructions otherwise, they are likely to do what they are used to doing and use it. Sources of information are so much wider now, and it’s easy access,” she said.

Barker said technology and easy access to information requires judges to be more sophisticated and ask more expansive questions of jurors during voir dire – the process of questioning potential jurors about their background and potential biases used to seat a jury. “You have to make it very clear. No twitters. No tweets. No nothing!”

Technology is not an enemy of justice. Advances in technology have done more to improve the court system than to harm it. Technology allows trial courts to run more efficiently and more easily provide needed information to judges, lawyers and jurors. But the courts need to adopt new strategies so the less savory uses of technology don’t threaten a revered court system.