The thought of jurors surrendering their cell phones often draws criticism. Indeed, some feel this practice is needlessly condescending and further, implies incompetence. However, a rash of orders for new trials suggests it may be time for an all-out ban of cellular phones, PDAs, and tablets during the trial process. While sequestration is not a practical solution due to costs and the burden of constant monitoring, a more suitable approach might be a mandatory fine for juror misuse of technology no matter how great or small the infraction. More than ever, jurors are engaging in their own research, ranging from investigating the opposing law firms' trial history to dredging up the criminal past of the accused. Jury misconduct with digital devices and technology is no trivial matter. In fact, misconduct can result in a matter of life and death.
That's exactly what happened in the case of Bryan Galvin, whose 2007 capital murder conviction was recently set aside for a new trial. Due to a juror researching Mr. Galvin’s prior criminal history online and sharing the information with other jurors, the Pennsylvania courts determined Mr. Galvin is entitled to a new trial. Researching a defendant’s criminal record poses a serious threat to the trial process. Specifically, such independent research contravenes the rules of evidence and limits the effectiveness of counsel during trial. After all, what good is a timely objection if the jury has already obtained the inadmissible evidence via the internet? In addition to the interference with protecting the jury from hearing inadmissible evidence, jury misconduct which results in a new trial places an immense burden on the courts and the prosecutor’s office.
Recent attempts by judges to prevent juror misconduct on their digital devices by having the potentially prejudicial information removed from websites have been held unconstitutional. If a judge may not order sensitive information removed from the internet, then it logically follows that the alternate solution lies in preventing jurors from accessing it. An all-out ban of Jurors’ access to digital devices throughout the entire trial process may seem heavy-handed. However, in the interest of guarding against improper exposure to evidence and bias, such a ban may be especially necessary where violations pose a potential threat of clogging the courts with new trials.
Jury sequestration is costly and thus impractical for every case. Even limited to felony cases, jury sequestration would prove too costly and burdensome to justify. The solution may come in the form of mandatory fines for jurors caught engaging in digital misconduct. The fine would permit the juror to take their device home when leaving the courthouse but imposes an additional layer of protection. In addition to a mandatory fine, jury instructions regarding prohibited internet research could be improved. Indeed, jurors will be less inclined to engage in their own evidentiary research if they are informed that doing so undermines the purpose of their involvement in the judicial process.
The consequences for failing to properly address the rise of jury misconduct on digital devices threatens to greatly reduce the effectiveness of counsel at trial as well as create an unnecessary burden for the courts in the form of new trials. Jury sequestration is impractical and probably unwarranted in most trials for the purpose of guarding against prohibited internet research. A mandatory fine for digital misconduct, coupled with jury instructions that better convey the potential detriment to the trial may be the best option.