By Professor Peter Tiersma
During the past decade or so I have been heavily involved in California's effort to draft more comprehensible jury instructions. We've made a lot of progress. Previously, the state's judges solemnly informed jurors that, when evaluating the testimony of a witness, "failure of recollection is common" and "innocent misrecollection is not uncommon." Today, judges simply tell them that "people often forget things or make mistakes in what they remember." In the past, civil jurors were instructed to decide an issue in favor of the party whose evidence "preponderates." The new instruction requires that the evidence be "more likely to be true than not true."
Of course, the law contains many complex concepts that may not be easy to explain in ordinary language. The committees on which I serve (both civil and criminal) sometimes have lengthy debates on how to formulate such instructions. Yet perhaps the thorniest issue that we currently face is not an arcane legal doctrine, but what ought to be a relatively straightforward concept relating to juror behavior. Specifically, it is the principle that jurors are to base their decisions only on the evidence admitted during trial and not do research on their own. In the electronic age, this rule is becoming increasingly difficult to enforce.
Part of the problem is that a trial is an extremely artificial environment. The legal system demands that jurors strictly follow the law that the judge reads to them, setting aside anything they themselves know about the law as well as their own sense of justice and morality. And they must ignore anything they might know about the case or the issues raised by it. If you're an engineer, and the case involves an engineering issue, you are expected to have temporary amnesia and decide the issue purely on the testimony of the engineering experts. If you're not an engineer, you commit misconduct if you walk across the street to the library and consult an engineering textbook. It's hard to believe you're reaching a just verdict when you're told to ignore what you believe to be relevant information.
Until recently, violations of these rules occurred but were generally manageable. A bailiff might find a dictionary in the jury room with a mark next to the word "preponderate," and the judge would typically have a look at the definition and rule that the misconduct did not warrant ordering a new trial. What has changed, of course, is that people nowadays are able to access an ever increasing world of information using ever smaller devices. They no longer have to smuggle a dictionary into the jury room or walk to the library. Moreover, people expect to be able to answer just about any question in a matter of minutes online. So if jurors have a question about the position of a particular intersection, the background of the lawyers and judge, what a word in their instructions means, or how late the sun set on a specific day, it's all readily available on the internet. And other jurors are writing about their experiences--as they happen--on the internet or using text messages. Soon they'll be uploading video clips of the trial or their deliberations on YouTube, or checking their email, during those inevitably boring segments of the trial.
Judges are therefore increasingly concerned about tweeting, texting, blogging, email-checking and web-surfing jurors. They're surfing not just in California, but across the country. What to do about it? A few judges are reportedly having the bailiff confiscate jurors' electronic devices for the duration of the trial. I suspect that will be as popular as telling Texans they can't take their guns to church.
The more likely approach returns us to the issue of jury instructions, which are being revised around the country to address this issue. Of course, the instructions have long stated that jurors must decide the case based on the evidence admitted in the trial, may not do outside research during the trial, and may not discuss the case with others until they have reached a verdict. Even though those instructions clearly preclude web-surfing, texting, and tweeting about a case, judges several years ago began to add specific prohibitions on internet and cell phone usage. That seems not to have been entirely effective. So the newest trend is to list every possible type of verboten activity: using a cell phone, smart phone, PDA, or computer; accessing any internet service, instant-messaging service, chat room, blog, website, or online diary, and so forth.
Reading a list of prohibitions has the advantage that it is more concrete and specific, making it more likely that jurors will comply. With only a general prohibition on "discussing" the case, a juror might justify sending a text message on the ground that it is not really a "discussion," which normally refers to an oral conversation. On the other hand, lists of prohibitions, as I discuss in greater detail in my book, Legal Language, have the advantage that they are more precise and can make it clear that text messaging is not allowed. Yet the drawback is that they are less flexible. They necessarily fail to address future technologies as well as things you may not have considered. Such a list would periodically have to be updated, either informally by the judge or more formally by the committees that draft standardized instructions in each jurisdiction.
Even the most detailed and up-to-date instructions may not deter jurors whose lives seem to revolve around the latest communication technology. So a few judges are beginning to threaten jurors with some kind of punishment for what the judicial system regards as misconduct. It is entirely possible that jurors may find themselves serving with a judge who orders them to surrender their communication devices while court is in session and threatens them with a fine if they nonetheless manage to sneak one in. Jury service, anyone?
The ultimate question is whether it remains possible for the legal system to view the jury as a hermetically sealed black box into which the judge admits only carefully screened information, nothing else being allowed to enter or leave until the jury has reached a verdict. Perhaps we should open the box and liberate what we might now call the "wiki-jurors." Of course, in that case we might have a Pandora's box on our hands. Our judicial system depends on people being judged by predictable legal rules that are applied to reliable evidence. Perhaps a black box is not such a bad idea after all. Only time can tell which metaphor will prevail.