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Cogan’s Corner – Juror Misconduct

Cogan’s Corner Column

Originally Published August 6, 2012 in the Chicago Daily Law Bulletin

This article lists the different ways attorneys can prevent misconduct among the jurors in the future.

Lawyers can help prevent misconduct among a new generation of jurors

Gone are the days when jurors could improperly consider extrinsic information only by visiting the scene of an accident or discussing the case with family. Today, jurors can simply pull up the accident scene on their iPads via Google Earth and review it with fellow jurors. Or, they can share a few titillating details of the trial testimony with 500 friends via Facebook or Twitter. The Internet, and social media have found their way into our courtrooms, challenging the integrity of the judicial process.

The prevalence of smartphones, iPads and anything that rides the 3G/4G superhighway to the Internet is threatening evidentiary rules decades in the making. Since 1999, jurors’ Internet activity, blog comments and tweets have called into question at least 90 verdicts, a Reuters study reports. Judges granted new trials or overturned verdicts in 28 such cases, both criminal and civil, with 21 of those decisions coming down in the past two years.

Illinois has merely dipped a toe into these waters without appellate courts weighing in on the necessity of an evidentiary hearing. In Eskew v. Burlington Northern and Santa Fe Railway, the 1st District Appellate Court ceded t the judge’s discretion in denying the defendants’ request for an evidentiary hearing based on a blogging juror’s misconduct. The twist in Eskew is that the blog revealed another jurors’ efforts to combat it. Although the blog entries exposed premature jury deliberations, there was no indication of jury bias. The blogging, although improper, was a nonevent.

Not so in Saragosa v. The County of Cook. In an unpublished opinion, the court provided insight into the type of juror misconduct that will merit an evidentiary hearing. There, jurors consulted the plaintiff’s attorney’s website for past verdict amounts, the Internet for medical opinions. The court held that these extrinsic influences bore on crucial issues and had a significant impact on the jury’s verdict, warranting an evidentiary hearing.

These cases tell us two things: 1) jury communication about the case through the Internet, by blogging or other means, does not constitute jury misconduct per se and 2) Internet research and communication that go to the central issues will warrant at least an evidentiary hearing, if not a reversal.

With the jurisprudence in its infancy, it behooves trial attorneys to work with judges to curb a potential epidemic of serious misconduct. Recent amendments to IPI 1.01 have made strides in the right direction. The Preliminary Cautionary Instruction now includes specific prohibitions against Internet research and electronic communication during trial. It is a growing practice to reiterate these admonitions repeatedly throughout the trial. But is this enough?

Some courts have required all electronic devices to be surrendered to the bailiff and given jurors an emergency court number for family members. Others have taken more stringent measures, finding offending jurors in contempt. Yet jurors still are on the honor system. Without sequestration, keeping jurors off the World Wide Web is a daunting effort.

I propose an organic approach: Give jurors a proactive role in the process and they will be less likely to seek out extrinsic information. The Illinois Supreme Court was in step with this philosophy when it enacted additional changes to IPI 1.01 effective this month, allowing jurors to ask questions of witnesses. Giving jurors direct access to such information may discourage them from conducting improper Internet searches.

Another way to include jurors in the process is to educate them about the merits of a system that has been refined and improved over centuries. Expert jury consultant Daniel Wolfe, J.D. and Ph.D. of TrialGraphix, said:

“Just like members of society, jurors often scoff at rules that prohibit them from doing something that they might otherwise see as normative and permissible, like Internet research.

Cogan’s Corner Juror Misconduct from rarbel

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