Juror Misconduct - Challenges For The Digital Age

The Hon. Ralph Artigliere (ret.), a recognized expert in civil litigation, has recently published an article in the Drake University Law School Law Review entitled Disconnecting Jurors From the Internet During Trial, 59 Drake L. Rev. 621.    

The article was published for the Eighth Annual American Judicature Society Symposium - The Increasing Precarious State of Common Practices in the United States Judicial System.

The article points out that in this age of information technology jurors are used to accessing the Internet, sending and receiving e-mail, texting and instant-messaging with smart phones, and generally using digital  resources to research topics and communicate with family and friends. This has greatly expanded the scope of possible juror misconduct, and the article mentions the following examples: 

Jurors research legal terms, medical evidence, parties to the case, lawyers, and judges. A juror in England attempted to poll her Facebook "friends" to help her decide a difficult case. Several jurors in a Baltimore case became Facebook "friends" during the trial and electronically exchanged information and commentary with each other about the case, including "an outsider's online opinion of what the verdict should be."  Sometimes research is done even before the jurors show up for jury duty: for example, a prospective juror in South Dakota did a Google search on the corporate defendant upon receipt of a jury summons and then ended up on the jury.

The article provides helpful, practical suggestions for judges and practitioners in dealing with these forms of juror misconduct.  

Courts and jury instruction committees are coming to grips with juror misconduct in the digital age. For example, in Florida the Committee on Standard Civil Jury Instructions proposed new and revised instructions that address the use by jurors (or potential jurors) of electronic devices, whether these are used to communicate with other individuals or to access information outside of court proceedings. The instructions proposed by the Committee were approved by the Florida Supreme Court.

Judge James Barton, II, the Reviewing Editor for Florida Forms of Jury Instruction, Second Edition and Chair of the Civil Jury Instructions, considered these changes an important step in his Committee's efforts to simplify Florida jury instructions and to assist judges in providing an appropriate and comprehensive warning to jurors about the use of electronic devices.

 FLORIDA STANDARD JURY INSTRUCTIONS IN CIVIL CASES § 700 states in part:

 You will have in the jury room all of the evidence that was received during the trial. In reaching your decision, do not do any research on your own or as a group. Do not use dictionaries, the Internet, or any other reference materials. Do not investigate the case or conduct any experiments. Do not visit or view the scene of any event involved in this case or look at maps or pictures on the Internet. If you happen to pass by the scene, do not stop or investigate. All jurors must see or hear the same evidence at the same time. Do not read, listen to, or watch any news accounts of this trial...You are not to communicate with any person outside the jury about this case. Until you have reached a verdict, you must not talk about this case in person or through the telephone, writing, or electronic communication, such as a blog, twitter, e-mail, text message, or any other means. Do not contact anyone to assist you, such as a family accountant, doctor, or lawyer. These communications rules apply until I discharge you at the end of the case. If you become aware of any violation of these instructions or any other instruction I have given in this case, you must tell me by giving a note to the bailiff.

Artigliere serves on the LexisNexis Florida Editorial Advisory Board and has provided substantial guidance on the fast changing area of Jury Instructions for the Florida Bar and more specifically for the on-going overhaul of Florida Jury Instructions.  

About Florida Forms of Jury Instruction, Second Edition ($1197.00):

The new Second Edition is fully updated to reflect the Florida Supreme Court's approval of the publication of new standard jury instructions for civil cases. Prepared by Florida attorneys and the LexisNexis editorial staff, reviewed by Judge James M. Barton, this is the only publication to cover general civil, tort and contract litigation instructions in one comprehensive research source. Coverage includes basic concepts and procedures governing instructions for any stage of a civil action, a comprehensive section on breach of contract and a plethora of material on tort actions. In every area covered, pattern instructions are accompanied by:

  • The cases or statutory authorities on which the instruction is based
  • A use of Instruction that explains how and when an instruction should be used with guidelines for using alternative provisions
  • A Comment that provides a brief legal background, advice in areas where there is a conflict of law or where there is an issue of trial strategy
  • References that tie the work to other chapters in the set and to other Matthew Bender publications for further clarification of the law 

About Mr. Artigliere:

Ralph Artigliere is a writer and legal educator who is retired from the circuit bench in Florida. He currently teaches Florida judges as a member of the faculties of the Florida Judicial College, the Florida College of Advanced Judicial Studies, and the Florida Conference of Circuit Judges.  He is a member of the faculty of The Florida Bar Advanced Trial Advocacy Course and has been a frequent instructor in continuing legal education courses on subjects including: Discovery, Electronic Records & Electronic Discovery, Civil Procedure, Evidence & Admissibility, Complex Case Management, Privacy & Court Records, Trial Practice, and Jury Communication.  He is assisting The Florida Bar Civil Rules Subcommittee assigned to propose electronic discovery rules for Florida state courts and is a member of Working Group 1 of the Sedona Conference. Before his appointment to the bench, he was a trial lawyer with Holland & Knight; Lane, Trohn (managing shareholder); and Anderson & Artigliere, where he tried primarily professional negligence, medical malpractice, and product liability cases and was a certified mediator. Among his published works, he is co-author of the Florida Bar/LexisNexis book on Writing Jury Instructions in Florida which in 2010 was included as an Appendix to the official Florida Standard Jury Instructions books. He is a graduate of the United States Military Academy, with honors, and the University of Florida College of Law, with high honors. 

Other Key Litigation Titles by Artigliere

LexisNexis Practice Guide Florida e-Discovery and Evidence

This one volume treatise offers valuable perspectives and time-savings strategies on e-discovery management and e-discovery advocacy for the Florida practitioner.  

LexisNexis Practice Guide Florida Civil Procedure

The LexisNexis Practice Guide on Florida Civil Procedure is a 5-volume series that gives you step-by-step guidance on procedural issues and quickly points you to LexisNexis resources that help you build your case. 

About Judge James M. Barton, II

The Honorable James M. Barton, II serves as Circuit Court Judge, Civil Division, Hillsborough County, Florida. He received his undergraduate degree from Tulane University in Louisiana and attended Nashville's Vanderbilt University, where he received his law degree. Upon graduation from law school, Judge Barton clerked with the First District Court of Appeal, served in the Anti-Racketeering section of the Florida Attorney General's office and worked as an attorney in private practice in Pensacola. Judge Barton followed his father, a Federal Magistrate Judge for the Western District of Louisiana, into service on the bench and was elected County Judge in 1991 and later appointed Circuit Judge in 1999. One of Judge Barton's most significant contributions to the Florida judicial system, apart from his role on the bench, is serving as Vice-Chair and now Chair of the Supreme Court Committee on Standard Jury Instructions in Civil Cases. Working tirelessly for nearly a decade with his fellow Committee members, Judge Barton is responsible for helping improve and streamline standard jury instructions in civil cases. The reorganization and revision of the standard jury instructions is of great importance to Judge Barton as it has facilitated a greater understanding for lay people of the judicial process and their role as a juror. In addition to his work on the Committee on Standard Jury Instructions in Civil Cases, Judge Barton formerly served as chair of both the Supreme Court of Florida's Pro Bono Task Force and the Thirteenth Judicial Circuit Pro Bono Committee. He is a member of the Thirteenth Judicial Circuit Committee on Professionalism and the Hillsborough County Bar Association.