If there is one skill millennials have perfected,
it is the art of scouring the internet for information, especially on people we
barely know. This “skill,” when used by a juror or someone close to a juror has
the effect of causing delays within a case or forcing a mistrial due to the
introduction of extraneous information into the jury box. Because of how
pervasive this online investigative behavior has become, trial courts seem more
inclined to ignore cries of juror bias derived from tangential internet
searches. However, the Sixth Circuit recently reiterated that even in the digital
age, the defendant’s right to an impartial jury stands strong against such
behavior.
In 2016 a stock broker, Talman
Harris, was standing trial for securities fraud. The day before his trial concluded, Harris noticed
that a female college student viewed his LinkedIn profile. Putting his social media
skills to work, he found the woman’s Facebook profile and a photo of her and a juror.
Harris assumed that the woman located his LinkedIn page from a simple Google
search—a search that also would have revealed an investigation into his
dealings by FINRA that led to a permanent bar from the organization.
Harris filed a motion for a “Remmer hearing.” The Supreme Court in Remmer v. United States,
held that in a criminal case, any outside influence on a juror is “deemed
presumptively prejudicial . . . .” For this reason, the trial court must “determine
the circumstances, the impact thereof upon the juror, and whether or not it was
prejudicial, in a hearing . . . .” The hearing acts as a procedural and substantive safeguard against outside influences that could interfere with the jury's ability to weigh only the evidence presented at trial.
As evidenced by the trial court’s denial
of Harris’s motion for a Remmer hearing,
trial courts are becoming wary of motions for Remmer hearings. In Harris’s case, the trial
court not only denied the motion, but developed its own rationale for what may
have happened:
[A] more likely
explanation is that Ms. Goleno [the juror’s girlfriend] learned that Juror
Number 12 had been seated as a juror. She then, as “this age of the internet”
allows: visited the Court’s public website; found the trial in progress;
decided to inquire further by visiting LinkedIn; and never had an actual
communication with Juror Number 12. Nothing about this is improper or
surprising in this age of technology.
On appeal,
the Sixth Circuit found such an attenuated explanation without further
investigation to be a clear abuse of discretion. The court held that though
trial courts have considerable discretion in deciding how to investigate claims
of extraneous influence on a jury, the trial court may not ignore “credible
evidence” of such an occurrence by doing nothing. They must investigate, and if
extraneous influence is found, a new trial must be ordered. Seven months later,
the trial
court finally held a Remmer hearing.
The girlfriend testified that she Googled the defendant and did not share information
with her juror-boyfriend. The court found this testimony credible and upheld
the jury’s guilty verdict.
Because
the hearing did not change the result of the case, this prolonged series of events
may now seem like a waste of time and resources. In reality, the Sixth Circuit opinion
and the trial court hearing on remand is a critical victory for defendants and
juries alike. It is a reminder that even in “this age of the internet,” where
digital access to information is readily available, courts must still be
vigilant in protecting a defendant’s right to an impartial jury. However
time-intensive and excessive these motions and hearings may appear, trial
courts must take seriously the threat of investigative jurors and their friends
who may color a deliberation with their outside digital lurking.
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