Has Technology Compromised the Fairness of the Jury Trial?
February 21, 2018

Has Technology Compromised the Fairness of the Jury Trial? by David M. SchwartzBy David M. Schwartz , Esq. & Founding Partner

{5:24 minutes to read}  With the advances in technology, the information highway is at full speed right now. That sounds like a good thing, but in high-profile court cases across this country it has ruined the fairness of the jury trial.

We are supposed to have 12 individuals on a jury with alternates, who have been carefully selected to serve. They are assumed to have no knowledge of the case at all, so they are unbiased. However, in cases which are high-profile, negative commentary about the criminal defendant appears in many blogs and other forms of social media, making it almost impossible for him/her to get a fair trial.

In the “old days,” the judge would instruct the jurors not to read the newspaper, not to watch TV, and not to look at anything about the case. The only thing that might potentially poison a juror would be a chance view of an article or something seen inadvertently on TV.

Today, the judge still instructs the potential jurors not to read newspapers or watch TV, but adds that they are also not to look at anything about the case on social media. Unfortunately, in today’s world, all they have to do is go on their iPhone, press one button, and if it’s a high-profile case, see the defendant being crucified in blogs and other forms of media.

There are hundreds of articles, usually negative ones, written by people who have no clue about the case. These “writers” don’t understand the facts of the case, the substance of the case, or what is legally admissible evidence. Although the jurors may be well intentioned and try to be fair, they are poisoned by the abundance of information.

People are so compulsive about their phones and social media that they really can’t help themselves. On a case that has been reported online, they press that button to look at the articles no matter what the judge has told them.

Lately, I’ve seen multiple instances where social media has played a role in the decisions of jurors. The courtroom and the trial are supposed to be like a laboratory with rules and regulations, in which the prosecution must prove a defendant guilty beyond a reasonable doubt.

Jurors should only hear admissible evidence. Evidence that’s inadmissible never should come into court, but social media makes the difference a moot point. For a criminal defendant who is facing having their liberty taken away from them and facing potential incarceration, their ability to have a fair trial has been thrown out the window because of technology.

There’s no question that jurors are looking at their phones and at social media allowing all this extrinsic evidence to come into play during these trials. One case that I was involved with, recessed on a Friday at 5:00. The jury was completely deadlocked, 6-6. The defendant was really beaten up badly and ostracized in the world of social media. On Monday, the jurors came back and 11 minutes after the last juror came for deliberations, they had a verdict of guilty. 11 minutes later. On a Friday night they were hung 6-6; Monday morning, 11 minutes after the last juror came back, they had a guilty verdict.

So what took place with that jury over the weekend? There is no question in my mind that the jurors voting for a guilty verdict talked to the other jurors and said, “You’re really going to defend this guy? Why don’t you go look at this website, or that blog and you tell me if this is the person you want to stand up for.

This is exactly what happened in this case, and it’s happening all across the country. The sixth amendment of the Constitution mandates that every criminal defendant get a fair trial. During the trial the jurors hear certain pieces of evidence that they are legally entitled to hear in order to render a reasoned verdict. However, a defendant cannot get a fair trial when jurors are taking into account outside influences which are beyond the scope of the trial.

So what do we do? In my next article, I will offer some ways that could reinstate and ensure the fairness of the jury trial continues.