Jurors' Online Activity Poses Challenges for Bench

[law.com] After a day of deliberating in the case of a building's owner and ex-owner charged in connection with the death of two firefighters, a juror signed on to her home computer and "impulsively" sent a request to a firefighter witness that he be her Facebook "friend."

Last week, Acting Supreme Court Justice Margaret L. Clancy in the Bronx concluded in People v. Rios, 1200/06, that Karen Krell's communication was "unquestionably a serious breach of her obligations as a juror and a clear violation of the court's instructions."

The judge ultimately rejected the defense's argument that Krell's alleged "feelings" toward the witness had tainted the guilty verdict but she overturned the conviction on other grounds.

However, the episode illustrates the problem trial judges face in the age of the internet and social media as they strive to ensure that jurors insulate themselves from outside influences and render a verdict based solely on the evidence presented in court.

Concerns about the ubiquity of electronic communications recently have prompted revisions to suggested jury instructions in both federal and state courts.

Penal Law §270.40 requires state judges, before the prosecution opens its case, to instruct jurors about their function and duties. These preliminary instructions must include admonitions that jurors may not talk to anyone about the case or "read or listen to any accounts or discussions of the case reported by newspapers or other news media."

In May 2009, the Office of Court Administration's Committee on Criminal Jury Instructions amended its recommended "jury admonitions" to suggest that trial judges state that "you must not communicate with anyone about the case by any other means, including by telephone, text messages, email, internet chat or chat rooms, blogs, or social websites, such as Facebook, MySpace or Twitter."

Although judges are mandated by law to give certain instructions, they are not required to use the precise wording of the state committee's suggested instructions.

According to the trial transcript, Clancy did not specifically refer to contacting anyone via the internet in her preliminary instructions, but warned jurors against discussing the case and told them they could not talk to the lawyers, witnesses, or "anybody connected with the case about anything during the trial."

Several days later, before a three-day recess, Clancy told jurors that if they "must go" online, they should avoid reading news and "walk away" from anyone who attempted to "share any news about the case."

The jurors also were warned to avoid researching the case online "or by any other means." The judge repeated similar instructions during deliberations, according to the transcript.

Jurors' Online Activity Poses Challenges for Bench