The evolving Constitution: How Facebook, Google and Twitter cause problems for the right to a fair trial

Editor’s Note: Lori Andrews discussed her new book, I Know Who You Are and I Saw What You Did: Social Networks and the Death of Privacy, at the National Constitution Center on January 12, 2012. The podcast can be heard by clicking the play button below.

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The Sixth Amendment of the U.S. Constitution provides for the right to a fair trial. Jurors are supposed to decide a case based on what they hear in the courtroom, not what they read in the news media. They’re not allowed to talk about the case with others so they don’t base their decision on the influence of a friend or relative, rather than their own judgment. They can’t visit the scene of the crime on their own or conduct their own investigations.

Before Facebook, Twitter and Google, it was pretty easy to keep jurors in line. If a case garnered attention in the local press, a judge could order a change of venue so that the case was heard in another town. If the court was worried about outside influences, the jurors could be sequestered. But now with a quick search on a smartphone—or a peek at a defendant’s Facebook page—jurors are routinely breaching the right to a fair trial, and courts, lawyers, and legislatures are trying to figure out what to do about it.

The troubles begin even before the trial. In 2009, in a single court, 600 potential jurors were dismissed when they mentioned they’d done research about the case and discussed it with others in the jury pool. When Reuters monitored Twitter, it found that tweets from jurors or prospective jurors pop up at the rate of one every three minutes. Ignoring their legal duty, some jurors make up their mind before all the evidence is presented. “Looking forward to a not guilty verdict regardless of evidence,” one person tweeted. Yet another man hadn’t even been selected as a juror yet when he boldly tweeted, “Guilty! He’s guilty! I can tell!”

Once the case is underway, jurors breach the fair trial right by conducting their own research. Some have looked up a Google view of the scene of the crime, or the previous driving record of someone charged with reckless driving, or whether the defendant was making gang signs in his Facebook photo. But all of these actions uncover information from outside of the courtroom, where there is no chance for the defendant’s lawyer to correct inaccuracies or cross examine the individual who provided the information.

Jurors’ misuse of Facebook, Twitter, and Google has led to dozens of mistrials and overturned verdicts, costing the government millions of dollars to retry the same defendants.

When a juror used his iPhone to look up the word “prudence,” a key legal concept in a manslaughter trial, he discussed what he found with the other jurors. After the defendant was convicted, the slip came to light. An appellate court granted the defendant a new trial, saying “Although here we confront new frontiers in technology, that being the instant access to a dictionary by a smartphone, the conduct complained of by the appellant is not at all novel or unusual. It has been a long-standing rule of law that jurors should not consider external information outside the presence of the defendant, the state, and the trial court.”

Some people are so dependent on social networks that they can’t make a decision about anything—whether to buy a certain car or break up with a boyfriend—without doing Internet searches or running a poll of their friends. When faced with the evidence in a sexual assault and abduction case, a juror posted the facts on her Facebook page and said, “I don’t know which way to go, so I’m holding a poll.”

Jurors’ misuse of Facebook, Twitter, and Google has led to dozens of mistrials and overturned verdicts, costing the government millions of dollars to retry the same defendants. But so far the punishments of jurors have been minor. When a Georgia juror Googled information in a rape case, the judge fined her $500. When a Michigan juror posted on Facebook, “Gonna be fun to tell the defendant they’re GUILTY,” the judge replaced her with an alternate and made her pay $250 and write a five-page essay about the constitutional right to a fair trial.

Courts are responding with new jury instructions telling jurors precisely what they should and shouldn’t do—and why. The American College of Trial Lawyers has also created a form that jurors should sign acknowledging their responsibility not to consult social networks. Its materials even include a model message that jurors can send friends and relatives telling them not to forward any information about the case or ask for any comments until the case is over.

California, though, is getting tougher. Beginning this year, a new state law provides for a penalty of up to six months in jail for a juror who disobeys a judge’s ban on the use of social networks, tweets, or web searches to find out about—or discuss—a case.

For generations, jurors have probably discussed cases with friends and family. Some may even have gone to a library or consulted an expert to help them make their decisions. But with the ease of access to information, the Internet has made jurors’ breaches easier and more likely. The dramatic cases that have arisen so far provide an opportunity to refresh our collective recollection about why the right to a fair trial is so important. For the right to a fair trial to remain a reality, jurors need to understand that cases need to be decided based on what’s occurring in the courtroom, not what’s occurring on Facebook or searchable on Google.

Lori Andrews is Distinguished Professor of Law at Kent College of Law; Director of the Institute for Science, Law and Technology; and Associate Vice President at Illinois Institute of Technology.

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