Editor’s note: Alexandra Cacciatore is trial attorney with a J.D. from Loyola Law School of Los Angeles and a master’s degree in communication from the London School of Economics and Political Science. She loves a good jury trial.
At every break during the high-profile Ellen Pao v. Kleiner Perkins trial, Judge Harold Khan reminded the jurors, “Do not form or express any opinions about the case. Do not do any research. Do not read any news reports. Do not Google the case.”
It seems pretty difficult to ask, as the trial is one of the most media-frenzied Silicon Valley has ever seen, with photographers often lurking near the women’s restroom hoping to catch a valuable snap of the constellation of Silicon Valley stars in the courtroom like John Doerr, Megan Smith and Reddit CEO Pao herself.
But in the hub of tech innovation, 35 miles from the Google campus, does anyone really believe the Ellen Pao trial jurors, who this week have been in deliberations, aren’t Googling such a highly Googleable group? And what would have happened had they innocently checked Twitter during one of their breaks and seen a headline like “Ball-busters who “kill the buzz”: Why the Ellen Pao case is a master class in sexism …’”?
Finding the truth
Juries serve an important role in our society, as a check on lawyerly zeal and as a touchstone of common sense. However, a jury only has one real job: They have to be able to follow instructions, including but not limited to Khan’s imperative, “Do not Google.” To believe that jurors don’t Google things is to have faith in the jurors to do the right thing… which is what a trial by a jury of your peers is all about.
No one can overstate the role of the jury. A company can spend millions on top trial lawyers, but when a jury calls bullshit on your case, it’s game over. Selecting a jury is called voir dire, and during this process, both the defense and the prosecution/plaintiff ask the potential jurors many, many questions about their biases and their ability to follow instructions based on the requirements of the law.
Personally, as a trial attorney, I like to keep people with jobs in accounting, hard sciences, regulatory compliance or HR on juries because I know they have the patience to follow a set of instructions and not get dramatic about it. When picking a jury, I try to keep at least one or two of these types on the jury to guide the others back to the instructions during heated deliberations.
We know that human nature may compel certain jurors to Google when they should not be Googling.
Winning a case involves putting up a bunch of facts and showing how the facts fit into each part of the instructions, which use very specific words. For example, jury instructions inform you about permissive inferences regarding credibilty like, “If you believe the witness lied about one thing, you may infer that he lied about everything.” The jury’s only job is to decide if, when they apply the facts to the instructions, they can come up with a truthful outcome. That’s why a jury is called the “finder of fact.”
On a very simplistic level, jurors are there to find the truth.
Taking (and breaking) the oath
Like witnesses, jurors also have to take an oath when they begin their service to follow the instructions of the court (a.k.a the judge). The judge (usually) also impresses upon the jurors that what they are doing is public service and essential to the American system of justice. So when the judge tells a juror to do something, they better do it or they are breaking their oath. Anything a court tells you to do is (guess what?) an order of the court. If you don’t do it, you can be found in contempt of court.
So when a judge instructs you not to Google something, he or she is deadly serious, because if you do, you could look up information that might, during deliberations, taint the entire jury and create a mistrial or end up with an unfair or unjust result.
However, just as jurors come into court with a lot of latent prejudices, like “I am conservative, liberal, religious, etc.,” we know that human nature may compel certain jurors to Google when they should not be Googling.
One of the obvious problems with the Internet and social media is its failure to recognize sacred spaces. In Western culture there aren’t many left, but the jury room and jury deliberations are definitely a special place. There have been many cases when jurors have been kicked off the jury for Googling or posting on Facebook or Twitter about their cases or deliberations. Mistrials have been declared when jurors so much as brought dictionaries into the jury room and let it influence deliberations. Hermeneutics jury trials are not.
Are contempt-of-court charges brought against jurors? No. Hardly ever. Why? Public policy reasons tell us that if you start prosecuting jurors, you 1) discourage service and 2) taint the jury pool against the process itself. If there were outside information getting to a particular juror, the judge would have a hearing about the issue outside the presence of the other jurors first to determine if the entire jury has been tainted before kicking the bad-actor juror off and replacing him or her with an alternate juror. Realistically, that’s how it works. Declaring a mistrial is the nuclear option.
If any juror brings any of the information he or she has Googled into the deliberating room — any information at all that has not been presented in the courtroom — the other jurors are instructed to disregard it and may report that juror to the court, or will just actively not consider that info in their decision-making. Philosophically, a jury is about the wisdom of the group and self-policing in action. If I were on a jury, you better believe I would rat out a juror who was bringing in outside information.
Yes, it’s an honor system
Sure, a juror could possibly Google something about a trial, not tell anyone and form an opinion that influenced their debates. But that is not playing by the rules. A trial involves a discrete set of facts and issues and rules. That’s the beauty of it.
Philosophically, a jury is about the wisdom of the group and self-policing in action.
You aren’t allowed to just take in any media clickbait and consider it. Court forces you to be a more clean and discerning mind. Let me tell you, during voir dire, people have revealed to me terrible truths about their lives: That their mother was raped and left for dead in a ditch and as a consequence they spent their entire childhood moving from city to city in paranoid fear. People state outright they hate law enforcement, certain ethnicities or the government itself. Potential jurors are brutally honest in front of strangers and the strangeness of being asked to be a part of state power.
As an attorney it is amazing to see and experience that level of honesty in random citizens. You cannot help but be moved by it. So when a judge instructs, “Do not Google …” I believe the jurors will not. The instruction “not to Google” is just an extension of the overall instruction not to bring in outside information.
Yes, it’s an honor system. But, for the cynical readers out there, it’s also an efficient one. There is nothing a juror hates more than wasted time. If a jury gets tainted by outside information about a case, a mistrial can occur and the whole trial starts over with a new set of jurors. One juror Googling an issue in evidence risks the time and weeks of work the entire jury is putting in listening to all the evidence and the efforts of plaintiffs and defendants in putting on a trial. It’s just not worth it.
The judicial system trusts a jury to come to a just outcome that affects people’s lives. At a minimum, we have to trust that jurors have the maturity and restraint not to Google issues in evidence.