Surfing jurors: Judges' instructions attempt to curb panelists' technological distractions

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.