Justice Speeches

Justice Judith Ann Lanzinger

Ohio Jury Management Association

The Challenges Ahead in Modern Jury Management

April 23, 2010

Thank you so much for the invitation. This is the third time I've had the opportunity to speak with you. A dozen years ago, I had the privilege of participating in the very first Ohio Jury Management Conference. Of course, we had no idea that there would even be an association then, let alone one that would thrive with regular conferences over the next twelve years.

As someone who has presided over more than 250 jury trials in 17 years as a trial judge, I'm well aware of how we need willing jurors to implement the constitutional right of trial by jury. For ordinary citizens, jury service is the closest that an ordinary citizen will come to the court and the judicial process. And we in the court, then, have a chance to directly contact people in the community we serve. Your management association does a great service to assist the courts.

OMJA's 2009 Survey

OMJA's jury survey provides us with an updated snapshot of our juries. 2009's survey was interesting: 129 responses were received from 77 counties — a remarkable 80 percent return. Twelve years ago, we discussed jury innovations such as allowing jurors the possibility of note-taking and the opportunity of presenting questions in writing for witnesses. The survey now shows that two thirds of the reporting courts allow jurors to take notes during trial but nearly three fourths do not provide for questioning.

Back in 1998 we talked of focusing on the jurors — becoming more "jurorcentric"— attempting to bring jurors more fully into the trial so their time could be used more wisely and the fact-finding process could be made better. We were concerned that many called for jury duty were apprehensive for their safety and initially, perhaps, unwilling to be jurors. Fifty-three percent of the courts recently responding say that they send out an information brochure about jury service to allay some of these concerns. But even now, we know that in Ohio some refuse to vote to avoid jury service and when called, nearly a third refuse to appear.

Almost 20,000 jurors were reportedly seated last year, but only about a third of the courts have an exit questionnaire to obtain comments from them. On the other hand, more than half of the courts provide an informational brochure beforehand to people who are called to serve. These statistics are helpful to see where we stand.

Today's Challenges—New Media

Today, though, the title of the annual conference is "Modern Jury Management." There are real challenges today to the management of jurors—certain controls over the judicial process we once had are vanishing from the courts because of the stunning rise of technology. The Conference of Court Public Information Officers has announced a year-long national research project to systematically examine new media and analyze their potential effects on the courts and media coverage of the courts. Chris Davey, the co-chair of the project and the Supreme Court's Director of Public Information will be speaking right after me and so will correct any of my mistakes on this point. Calling it the New Media Project, the conference has identified seven categories of technology, classified based on their broad functions. Misuse of any one of them has the potential to affect jurors and the ability of judges to obtain fair trials in the courtroom.

Social media profile sites

Social media profile sites like Facebook and MySpace allow users to join, create a profile about themselves and share information, images and video with defined networks of "friends."

Microblogging

Microblogging like Twitter allows users to send brief video, audio or text updates to be viewed by anyone or by a restricted group chosen by the user.

Monitoring and metrics

This category includes a large and increasing body of sites that aggregate the information about traffic patterns and what is being posted on social media sites across the Internet, and displays the information in a way that allows for analysis and understanding about how a particular topic or entity is being portrayed and understood. Social Seek and Google\'s Social Search are examples.

News categorizing, sharing and syndication

This broad category includes Web sites and technology like RSS and blogs that enable the easy sharing of information, photos, and video, and the categorization and ranking of news items.

Smart phones

Smart Phones like the iPhone and Droid are devices that can capture video, still images and audio and post to the Internet on the spot. They all allow the user to browse the Web, send and receive emails and IMs through either broadband or Wi-Fi access.

Visual Media Sharing

Visual Media Sharing like YouTube and Flickr are sites that allow users to upload video and still images stored in searchable databases and easily shared through emailed or posted links that can be embedded into nearly any Web site.

Wikis

A Wiki is a Web site that allows for the easy creation and editing of multiple interlinked pages through a browser. The most widely recognized and used Wiki is the collaborative encyclopedia Wikipedia. Judgepedia is also in this category.

More and more people are getting news and information and forming opinions based on a wide range of new and emerging Web-based media. We need to understand that the new media environment has the potential for generally affecting public understanding of the judicial system and affecting our jurors in particular.

Problems of New Technology

The rise of new social media and technology affects what comes into the courtroom, what goes out of the courtroom, and what goes on in the deliberation room. Let me give you some examples:

We should be concerned about what is sent to jurors. There is a case reported where a relative of a defendant actually texted a juror during a trial. Jurors have explored the Internet, tweeted, texted, made Facebook entries or written in their blogs about jury service. Some commentators have also expressed concern over deliberate misinformation being planted online for jurors to see at home.

Social media can affect what goes out of the jury box from the jury. Jurors have wanted to "update their status" while on a jury. In People v. Rios, a NY juror sent a key witness - a firefighter - a Facebook friend request from her home computer before the trial had completed. The firefighter didn't respond to the request and the judge determined that the communication was "unquestionably a serious breach of her obligation as a juror," but that ultimately the juror hadn't been swayed unduly by the witness so as to taint the verdict.

Even attorneys are not immune from the lure of interconnectedness. An attorney from South Dakota who was also a juror received a 45 day suspension, $14,000 in fines and lost his job when he blogged about case. He had stated he was not warned about blogging—that the jury instructions did not cover them. This defense did not save his disciplinary case.

What goes on during deliberations may be affected by jurors who want more information—to "get to the truth." These jurors do not understand current jury instructions and do not understand the rules of evidence. They hold a suspicion against authority who may not give them all the information they believe that they are entitled to, in order to render a "just" verdict.

Along with the concern with the information flowing in and out of the courtroom and being shared within the deliberation room, social media, I believe has created certain behavior that can be already identified in a few recognizable types.

The Over-Saturated Juror

It may now be harder than ever for defendants to find wholly untainted jurors within communities where a case arises because the potential jurors simply know too much. Whether what they know is accurate is another matter. At the same time, a change of venue in a truly high-profile case is less likely than ever to solve the problem.

On March 1, the U.S. S.Ct heard oral arguments in Skilling v. United States, involving the former CEO of ENRON who was tried and convicted in Houston. Skilling contended that the judge's five hour oral questioning was too brief when compared with two weeks in the trial of a defendant in the Sept. 11 attacks, and the 18 days of voir dire in the McVeigh trial after it was moved from Oklahoma City to Denver.

Will easily obtained information impair our juror pool and cause cases to be moved to other venues? Does this mean voir dire must lengthen to include all possible sources of information the juror may be exposed to before being selected for a trial? Jurors might be unaware of biases prompted by high profile cases and be reluctant to admit to them in any event. But it still may not be that hard to find profoundly uninformed jurors since in reality matters which interest us may be less fascinating to the general public. In any event, voir dire must examine the effect of new media.

The Juror Addicted to Social-Connectedness

This person may be unable to function while "uplugged." I wonder if we will be losing a generation of jurors for this reason. If a judge explains that for a two week trial the juror may not be involved in any social media, will we have people respond that they will not be able to "follow the jury instructions as given? Those under 25 might fall into this classification.

Lest you think the term addiction is too strong, last year in the midst of a Pennsylvania burglary, the defendant took a moment to check his Facebook status and then left his homepage on the computer. The computer, by the way, was in the same room as 2 diamond rings. Some just cannot resist the temptation to log in, no matter what else is happening in their lives.

The Information-Empowered Juror

This juror insists on information at his or her fingertips. To put into perspective the ease that we now have to use these devices and sites, consider that it was reported that 11 percent used cellphones to access the Internet in December 2007—but just 18 months later in July 2009, 32 percent connected by cellphone. Because this juror relies on Internet research for so much daily information there may be problems in deliberations. I know you will be discussing the Widner case later today, which is just one example of that problem.

The Citizen Journalist

YouTube and portable video devices with upload capability have made the existing rules and processes for restricting cameras in the courtroom instantly anachronistic. We may want to address the problem of the individual who is in the audience and tweets or texts to others with handheld devices. In February of this year a Cuyahoga judge put two men in the audience in jail for pointing cellphone cameras at the jury during a murder trial. The judge had found this intimidated and frightened the jury, as they were relatives of the defendant and a mistrial was declared. We may have to create new rules for the public, for main-stream reporters, and for media use in general. When is a trial "open to the public?" This had now become an entirely new question. Our current broadcast rule that relates to "cameras in the courtroom" may not be sufficient to cover the new media.

What Should We Do?

Where can we make a difference? In your initial information brochure, in voir dire, in preliminary instructions, in final instructions, in the local rules of court with respect to all media devices (whether providing communication, Internet, or recording access)—in all of these places we have an opportunity to create expectations and explain the purpose of the rules.

Consider Local Rules

Local rules are a matter for the court to determine. Currently, there is no Rule of Superintendence to cover what should be done about media devices such as the regulation of cellphones. Obviously, the judge has inherent authority to assure the parties a fair trial, but the First Amendment also applies. Our broadcast rules may be insufficient with respect to the "citizen journalist" who may inadvertently impair a jury trial. understanding that free speech rights may not impede what is happening in the court.

Examine information brochures

We know that there are courts that send out informational brochures with the first contact to potential jurors. The information imparted should create expectations and allay concerns. If the court has decided, for example, to ban cellphones from the court altogether, let it be known early on.

Rethink voir dire

We must explore information addiction on voir dire. We must encourage jurors to think of the courtroom as an even playing field where both sides have agreed to play by a set of prescribed rules. One of those rules is that each party will be judged only by a set of facts that both sides have had an opportunity to examine and challenge. The parties are entitled to jurors who will find facts based on the evidence that is properly brought into court.

Rework jury instructions

Federal district judges have been given revised instructions to address the increasing incidence of juror use of such devices as cellular telephones or computers to conduct research on the Internet or communicate with others about cases. There is no uniform standard across the country for jurors in state trials, according to the National Center for State Courts.

The Federal example

The federal district courts have approved the following instructions, portions of which follow:

"You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in the case, and the individuals or corporations involved in the case. In other words, you should not consult dictionaries or reference materials, search the Internet, Websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Please do not try to find out information from any source outside the confines of this courtroom.

* * * I know that many of you use cell phones, Blackberries, the Internet and other tools of technology. You also must not talk to anyone about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or Website, through any Internet chat room, or by way of any other social networking Websites, including Facebook, My Space, LinkedIn, and YouTube.

* * * (Final instructions)

"During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the Internet, any Internet service, or any text or instant messaging service; or any Internet chat room, blog, or Website such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict."

One might wonder about the specificity of this instruction. By mentioning specific sites and applications, can the rule imply that others, not mentioned are acceptable? Furthermore, does the instruction give jurors a reason why they must refrain from this activity? Should they be told more about what improper research or communication does to a jury trial? These are tough questions for you and the courts to consider.

Conclusion