It Is Time to Rethink Jurors' Access to Information

Recently the Arkansas Supreme Court reversed a capital murder conviction in part because a juror disobeyed specific instructions not to tweet (Dimas-Martinez v. Arkansas). One of the tweets was: "Choices to be made. Hearts to be broken. We each define the great line." After being questioned concerning that tweet, the juror subsequently tweeted "if its wisdom we seek... we should run to the strong tower," and also "it's over." The Arkansas Supreme Court viewed these statements as, even if one-sided in a conversational sense, an inappropriate public discussion. Furthermore a reporter was a Twitter follower and arguably learned that there was a verdict before it was announced in the courtroom.The Court saw a great possibility for prejudice and referred the overall issue of jurors' access to mobile phones during a trial to two Arkansas Supreme Court Committees for their recommendations. While this referral is appropriate, it is time to broaden the conversation to rethink social media in the courtroom and jurors' access to information in general.

The historical English jury rendered a verdict based upon their personal knowledge of the facts of the case. Since the jury had personal knowledge (not necessarily eye-witness knowledge), the jurors could be punished and their verdict overturned if a false verdict were returned. Sometime in the early 1700s, the function of the modern jury as a neutral body relying only on courtroom testimony became fixed. Bushell's case (1670) is a famous English case involving the trial of Quakers including William Penn for violating religious assembly laws. The trial judge did not like the 'not guilty' verdict and proceeded to punish the jury. On appeal Chief Justice Vaughan stated that jurors were not to be punished for their verdict and furthermore that the law supposed that jurors had sufficient knowledge to try the matter even if no evidence were presented in court.

The change to the contemporary view of the jury as neutral strangers without personal knowledge of the facts perhaps came from a desire to avoid politically motivated verdicts as well as the remedy of a new trial to correct errors made by uninformed or biased jurors and the development of rules of evidence concerning limiting information presented to the jury in the interest of producing a correct verdict. There is certainly a fear that jurors will behave irrationally and be swayed by improper consideration. Does our contemporary system produce more reliable jury verdicts than the historic system?

It seems clear that the jury system must make some adaptations to the information age we live in. Here are some broad suggestions to start this conversation:

(1) Juror Facebook friending with parties to the litigation should not be allowed as there is a potential for bias.

(2) Some neutral tweets or posts by a juror about jury service should not automatically result in a mistrial.

(3) Jurors should be allowed to submit questions to witnesses and the judge while the trial is in progress. This could be done electronically.

(4) Internet searches should be allowed but conducted in a manner that allows all parties to the litigation to respond to the information that is produced.

(5) The trial should move from being chiefly oral to a more information collection and evaluation based approach.

(6) Jurors should routinely be transported to the location of significant events especially when physical aspects of such location are at issue.

(7) There should be broader incentives to encourage the parties to agree to submit to the jury "undisputed facts."

(8) Juries should be allowed to request properly authenticated expert testimony.

(9) Juries should be allowed some limited opportunity for mid-trial deliberation, perhaps at the close of the plaintiff's and defendant's cases, in order to determine what additional information they desire.

(10) Jury deliberations should only in very limited circumstances be subjected to post-trial inquiry in order to overturn a verdict.

(11) Most importantly, jury proceedings should not be conducted in a manner that creates an appearing of "hiding" information from the jury.

Could these proposals be flawed? Absolutely. Could there be better proposals? Certainly. However, the conversation about jurors' access to information must begin.

In conclusion, jurors should not be expected or required to completely ignore their everyday and commonsense methods of collecting and evaluating information. Rather our trial system should be able to adapt to technological change in a manner that still results in an efficient search for truth and administration of justice.