Avoiding Mistrial by Facebook

Social media audits of prospective jurors are now (or at least should be) the standard before voir dire.  But too often, once the trial team has learned of jurors' “likes” for Mitt Romney or the Kardashians or chemtrails and jury selection is over, their social media profiles are ignored.

From our perspective, monitoring of jurors’ public social networking should continue through trial and through deliberations.  The potential for misconduct is too high to ignore, since many jurors active on social networking may be unimpressed by the flood of admonitions judges provide at the start of trial and before every break. 

Judges around the country have been forced in growing numbers to confront willfully disobedient jurors who post on Twitter, Facebook or their personal blogs about ongoing trials.  By 2010, according to Reuters Legal, juror social media postings have called into question at least 90 verdicts and prompted nearly 30 new trials.  We’re sure those numbers have jumped since then.

When monitoring a trial, we check jurors’ social media postings on a daily basis.  Most of the time we find nothing – really, most jurors do follow instructions.  But there are a significant few who do not, including the young man from Florida we found posting key trial details, and his take on the presentation of evidence, on his Facebook wall.  The posts were overall rather innocuous, but it was clear he was ignoring the judge’s admonitions.  And if he had no qualms about ignoring one key instruction, we were concerned he might flagrantly disregard others throughout trial and deliberations.

We notified our clients, who told the judge, and the juror was off the case.

Monitoring seated jurors’ social media is a time commitment that’s easy to push down the priority list during the hectic days of trial.  But staying abreast of your panel’s continued Internet usage really needs to be just as standard as the initial searches.  Even making sure to ask for their Twitter names during voir dire (or asking the judge to do so to avoid looking stalker-ish) can be a strong deterrent to their disregard of Internet use admonitions.  For more advice on monitoring jurors’ Internet presence during trial, contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net. 

Mitigating the CSI Effect

There have been many studies on the “CSI Effect,” the effect of criminal dramas (such as CSI, Law and Order, etc.) on jurors’ decision-making process during trial. Television brainwashes jurors to believe there should be hoards of physical evidence, documentation, video footage, photos or some other “smoking gun” when it comes to proving cases.  As we all know, however, this is rarely the case.

The popularity of the fictional shows can elevate expectations to an unrealistic level that is detrimental at trial.  Our national research has shown 82 percent of jurors watch criminal dramas at least occasionally and 36 percent watch weekly.  However, there are several ways to mitigate jurors’ concerns regarding evidence in your case, and we have a few suggestions that will help jurors understand your case and the evidence presentation process.

Having a fresh set of eyes take a look at your case could divulge some of the weaker points susceptible to the “CSI Effect.”  Our focus groups provide an excellent platform to see what jurors want to know more about.  These questions can highlight the necessary education points that you may not see based on your familiarity with the case or at least the subject matter.

When considering expert testimony in a case where you might lack concrete evidence, consider a witness who will testify how uncommon it is to have every minute charted or every move photographed.  In an information-hungry society, we often forget that not everything is recorded – especially if the incident took place years ago.

It is also important to request jury instructions that are clear and do not confuse the jurors into misinterpreting the law.  This is particularly is necessary when explaining the preponderance of evidence standard since jurors – especially avid crime drama-watchers – are more likely to be family with “beyond a reasonable doubt.”  Clearly explaining the plaintiff’s burden will be effective in mitigating those who demand more evidence and proof.

Most importantly, you must adapt to match the demand of the “CSI Effect” rather than fight it.  With so many people watching shows and interpreting them as a likely representation of the courtroom, the expectations are there.  Providing jurors with adequate explanations and anticipating the information they will require will help to squash doubt about lacking CSI-like evidence in reality.

If you need assistance in discovering what parts of your case could fall victim to the CSI Effect, contact Senior Vice Preside Claire Luna at cluna@juryimpact.net or (714) 754-1010.

De-Stressing the Courtroom

You’re driving through an intersection with a green light and suddenly a car rushes in front of you running the red.  Most people would immediately judge this person as reckless with no regard for others, or someone who believes the rules don’t apply to them.  However, if you were in their shoes, it's possible they were rushing a child to the hospital or had some other emergency situation and they believed they could make the light.

At some point, we’re all guilty of this situational bias, also known as fundamental attribution error or FAE.  Described another way, it’s a person’s tendency to place undue emphasis on a person’s internal characteristics – or personality – in a given situation rather than considering alternate external factors.

National Geographic recently wrote about a study by authors from University of Chicago and New York University that found stress exacerbated FAE, making subjects more likely to judge harshly.  National Geographic noted this could come into play in the courtroom where jurors are under stress and forced to make judgments in a new and uncomfortable situation.

We believe that as a result of this stress-induced FAE, jurors could judge your client with a negative bias before all the evidence is even presented.  In order to combat FAE in your case, we suggest mitigating the amount of stress placed upon jurors in a few simple ways.

• Clear, concise explanations – When discussing the details of your case, be as clear as possible so jurors don’t have to spend extra time processing what you mean in order to keep up.
• Simple, organized visuals – As we have discussed in previous Things… articles, featuring clear visuals and simple fonts helps jurors understand what you mean and eliminate potential confusion.
• Respect their time – Part of the stress of jury duty is the time taken away from their other responsibilities.  By explaining things clearly and efficiently, you show the jury their time is valuable. 

We believe humanizing your client and explaining situational factors at play can also mitigate FAE.  Asking a doctor or nurse why they went into the field can help a jury understand their personality better and begin to realize there could be more factors at play rather than judging them on a fundamental level.

If you need assistance creating a clear and concise case message, please contact Senior Vice President Claire Luna at 714-754-1010 or cluna@juryimpact.net.