Tuesday, June 1, 2010

Can New Instructions for New Times Change Old Habits?

By Robin Sax

Face it; juries think that a crime occurs and is reported, investigated, filed, prosecuted, deliberated, and sentenced in one hour.  Judges have been so concerned about outside influences in cases that they have resorted to sequestering juries, to granting change of venue motions, and to admonishing jurors to consider only the evidence in front of them.  It is routine practice (and even law) for judges to instruct jurors not to discuss any aspect of the case, consult outside sources or do independent research. But experienced trial lawyers know such warnings often aren't followed. Jurors frequently talk to a spouse, may call a lawyer friend, go take a look-see at the scene of the crime, or even worse ... use the Internet.

Never has doing one's own research been so easy, so anonymous, so undetected. Before the days when, with a fews strokes of the keyboard, one could find information from around the globe, a disobedient juror would have to do original research -- dig information out of newspaper or library morgues, talk to witnesses, consult experts. And if jurors are anything like county employees, the sheer amount of work may have scared them off this path. But today, the technology that makes it so darn easy to violate jury instructions has forced jurisdictions to update rules to address the reality of this new ease of access.

Before lawmakers could even tweak the instructions to incorporate the realities of the Internet in general, newer software has allowed jurors to investigate in real time while the case is still being presented to them. No longer do people need to wait to return to their desktops to peek. With websites like Twitter, YouTube and Facebook, combined with sophisticated cell phones and applications for them or technology like iPads, Kindles and netbooks, jurors can do their sleuthing while court is in session, while witnesses are still on the stand, and while the wheels of justice are supposed to be turning fairly.

Ohio decided that its courts were no longer going to handle these technological issues after the fact.  Instead, it would update and keep current jury instructions, no matter what, and address all of the modern issues floating around ... including the not-so-new issues of TV's  legal and criminal procedural dramas.  Not a bad idea, Ohio.  While it amazes me that we even need such instructions, better to get it all out in the open than to count on our jurors (remember -- they are our voters and drivers) to do the right thing on their own. 

So, if you happen to be sitting on a judicial committee, heed some advice from your friends in Ohio, and consider adding instructions like they did in these sections:

WARNING ON OUTSIDE INFLUENCE. The effort to exclude misleading outside influences information (sic) also puts a limit on getting legal information from television entertainment. This would apply to popular TV shows such as Law and Order, Boston Legal, Judge Judy, older shows like L.A. Law, Perry Mason, or Matlock, and any other fictional show dealing with the legal system. In addition, this would apply to shows such as CSI and NCIS, which present the use of scientific procedures to resolve criminal investigations. These and other similar shows may leave you with an improper preconceived idea about the legal system. As far as this case is concerned, you are not prohibited from watching such shows. However, there are many reasons why you cannot rely on TV legal programs, including the fact that these shows: (1) are not subject to the rules of evidence and legal safeguards that apply in this courtroom, and (2) are works of fiction that present unrealistic situations for dramatic effect. While entertaining, TV legal dramas condense, distort or even ignore many procedures that take place in real cases and real courtrooms. No matter how convincing they try to be, these shows simply cannot depict the reality of an actual trial or investigation. You must put aside anything you think you know about the legal system that you saw on TV.

WARNING ON OUTSIDE INFORMATION. In addition, you absolutely must not try to get information from any other source. The ban on sources outside the courtroom applies to information from all sources such as family, friends, the Internet, reference books, newspapers, magazines, television, radio, a computer, a Blackberry, iPhone, smart phone, and any other electronic device. This ban on outside information also includes any personal investigation, including visiting the site, looking into news accounts, talking to possible witnesses, re-enacting the allegations in the (Complaint)(Indictment), or any other act that would otherwise affect the fairness and impartiality that you must have as a juror.

Those are the warnings, and now the big question: Are these Ohio bar instructions  going to resonate with jurors? Stay tuned.

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