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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The Troubling Case of Sarah Widmer

by Laura James

In August 2008, 24-year-old Sarah Widmer, of southwest Ohio, died under mysterious circumstances: she drowned in her own bathtub.

The only other person in the home at the time was her husband of four months, Ryan Widmer.

The coroner ruled it a homicide. Mr. Widmer was charged and convicted of murdering his wife. The trial was taped by Dateline. And yet he has many supporters, among them his family and the Ohio Innocence Project -- which took on the case even though it does not meet their criteria (because there is no exculpatory DNA evidence). With the widespread publicity, an unusual case quickly became a very unusual case.


The conviction was thrown out by a judge concerned with the conduct of jurors who went outside the evidence to create their own theory of the case. (Or at least that was the stated reason. If the judge didn't have his own doubts about the verdict, I doubt he would have issued this ruling.) Now Ryan Widmer is about to be retried.


In the meantime, websites tell the tragic stories of this couple. Remember Sarah Widmer is a heartbreaking tribute to the attractive woman who lost her life in such an inexplicable way. Local station WCPO has put together its voluminous coverage. Mr. Widmer's supporters have created a comprehensive website and organized mass prayers.


Did Ryan Widmer kill his wife? How can the drowning death of a healthy young woman be otherwise explained? But there is no motive to be gleaned from the evidence. Was he wrongfully convicted? Was the coroner's conclusion warranted by the evidence? Did our criminal justice system, as extraordinarily deferential as it is to prosecutors, make a grievous error? Or is a guilty man going to go free?


These are deeply troubling questions. Had I been on the jury, I don't know that I could have voted to convict him, based on what I have read. I can't help but think that jurors in the United States today have completely lost touch with the concept of reasonable doubt.

One thing is for certain, to my mind anyway: widespread publicity in any case is a serious threat to a search for the truth. Is this not apparent to us by now? Be it a case in which the evidence of guilt is overwhelming, yet the defendant walks (O.J. Simpson, Robert Durst), or a case in which the evidence is ridiculously thin but the defendant is convicted anyway (Father Gerald Robinson, and, perhaps, Ryan Widmer), journalists and cameras are more often a problem than anything else.


If I ever had the misfortune to represent an innocent person accused of a crime, and if that case were to be heavily publicized beforehand or broadcast live, I would not stand for it. I'd go on a hunger strike until they removed the camera. If, on the other hand, my client was guilty, I'd welcome the publicity. The cameras are monkey wrenches. They mess with the works.


In the Widmer case, we can only hope that the retrial results in the truth coming out.

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