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How to get a fair trial in the Internet age

By Raymond H. Groble

This article was originally featured in the April 16, 2012 edition of Crain's Chicago Business. Please click here to view the original Crain's Chicago Business article.

Last December, the Arkansas Supreme Court threw out a death row inmate's murder conviction because one juror tweeted throughout the trial and another slept. In 2009, a San Francisco Superior Court judge dismissed 600 potential jurors in a criminal case after several admitted that they had researched the case online. In 2008, a juror in England held a poll on her Facebook page to make a decision about the child abduction and sexual assault trial before her.

These are just a few of the trials disturbed by jurors' use of the Internet and social media to research or communicate about cases. According to Reuters Legal, at least 90 verdicts have been challenged since 1999 due to alleged Internet-related juror misconduct; more than half of those challenges have occurred since January 2009, and 21 verdicts were overturned.

When jurors use the Internet to communicate or seek information about the case before them, they undermine the judicial system's promise of fair and impartial trials. This also leads to expensive mistrials, juror dismissals and fines.

Our firm recently handled the appeal of a case in which one of the jurors blogged throughout the course of the trial. Those blog posts revealed that the jurors had discussed the merits of the case before deliberation, that one juror had decided in favor of the plaintiff early on, and that the blogging juror had discussed the case with her husband. Unfortunately, the appellate court found that the juror's blogging was not sufficient to establish that the verdict was tainted, or that our client, a national railroad, had been prejudiced.

While the court's decision reflects the reluctance of courts to disturb jury verdicts, it is a missed opportunity to clarify how Illinois courts should handle jurors' use of social media.

Recently, the American Bar Association published recommendations for courts to preserve fair trials in the face of juror Internet use—including that jurors should be told initially not to discuss the case or seek information from outside sources and should be informed of the court's policy regarding use of electronic devices. (Those instructions should be reinforced throughout the trial.) Courts are still grappling with how to control Internet-related misconduct, trying everything from sentencing disobedient jurors to jail to having jurors sign pledges promising not to use the Internet to research or communicate about the trial until it is over.

The courts must evolve with technology—and they have, as shown by the recent decision to allow cameras in Illinois' circuit courts. The problem of errant jurors did not start with social media, but it is certainly exacerbated by it, and the courts must address this issue to ensure, as best they can, that everyone coming through the judicial system is given the fairest trial possible.

For more information about the issues of technology in the court rooms, please contact Ray Groble at 312.422.0783 or groble@daleymohan.com.

This article was featured in the April 16, 2012 edition of Crain's Chicago Business. Please click here to view the original Crain's Chicago Business article.

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