By David M. Schwartz , Esq. & Founding Partner

{4 minutes to read}  My last article discussed how the fairness in our jury trial system is being compromised by potential jurors’ excessive reliance on social media. So, how can we combat this prevalence and bring fairness back to the courtroom? Here are a couple of suggestions:

• The Fake News Charge: Although it’s never been admitted in a trial, I have developed a fake news charge which almost acknowledges that the jury is going to disregard the judge’s instructions about not looking at phones and all media surrounding a case. Even in non high-profile cases, there is information about the case available on the internet that people could look up. In most cases, whatever violent crimes or interesting economic “white collar” type crimes, there are always people pontificating about the guilt of the criminal defendant.

One of the things that we can do is inform jurors that the internet is filled with fake news. We give them the definition of what fake news is and explain that if they want to be a juror, they cannot take into account what they’re reading on the internet. It’s a special charge, acknowledging that the jurists are going to be looking at this stuff notwithstanding the fact that they promised not to. The compulsion of a human being overcomes the jury’s instructions.

• Increase the Budget: During deliberations jurors should be sequestered like we used to do. While sequestered, their phones can be taken away, as well as their ability to watch TV and everything else. Jurors should be required to affirm during the trial that they did not view social media during the trial.

The problem with the internet is all of the things out there that the jurors shouldn’t see. I represented a client a couple years ago who had all types of horrible things said about him professionally on the internet. These were things that the jurors should not have seen, but I’m convinced in that case that they did see these items.

• Penalties for Jurors: We need to have penalties for jurors who take outside influences from social media into account. People’s lives are on the line here. The Constitution guarantees them a fair trial. We need more penalties if jurors are going to break their oath on this.

While I don’t pretend to have all the answers, I do believe we need extra emphasis and charges to the jury, penalties, and sequestration. In addition, we need to openly discuss the problem because it is happening in trials all over the country and nothing is being done about it.

Unsubstantiated facts or allegations are being put in front of jurors, not in the courtroom, but on their phones and/or tablets. People are of the impression that they’re getting the full story by looking at their phones, but they are not and the lives of individuals on trial are being severely impacted.

The Courts and the Legislature need to take a serious look at outside influences persuading the jury system. The Sixth Amendment is at stake and we need to act immediately.