Chapter § 7.02 Certain Factors That Influence Juror Perspectives

• Jurisdiction: United States
• Publication year: 2020

§ 7.02 Certain Factors That Influence Juror Perspectives

[1] Generational Influences

Of the elements that have transformed how lawyers assess jurors today, none may be more influential than generational change. Major shifts tend to occur whenever a younger generation begins entering the jury pool. In spite of their youth, Millennials and adults in Generation Z aren’t afraid to make their voices heard. They are poised to have a dramatic effect on the jury system given their outspokenness and relationship with technology. The most important thing to understand about this new generation with respect to technology is the effect the Internet has had on their lives. They have never lived in a world without digital media, and access to and use of the Internet has steadily increased over the years. Roughly nine out of every ten adults in the United States use the Internet.⁵

The very nature of media has changed due to the Internet. In contrast to broadcast and print media, online media, because of their many-to-many nature, are intrinsically more inclusive. The Internet is interactive; it requires participation, not idle observation. This has had an enormous impact on the way the generation entering the jury pool learns new concepts, perceives information, and assigns credibility. They do not observe; they participate.

Given these trends, it is no surprise that younger jurors have changed the dynamics of trials by accessing the Internet to research cases or by putting information out about trials through social networking sites or social networking services during trial.⁶

[2] Technology and Social Networking

A number of issues have emerged during jury trials due to jurors’ use of technology. Problems occur when jurors access the Internet to research cases or put information out about the trial via social networking Web sites or social networking services. In fact, courts now routinely address the issue of juror misconduct arising from the use of social media during trial. As one court said, “When the embrace of social media is ubiquitous, it cannot be surprising that examples of jurors using platforms like Facebook and Twitter ‘are legion.’ ”⁷

In fall 2018, for example, a Wisconsin judge declared a mistrial after a juror brought to court an article he printed off the Internet about the Parkland school massacre in Florida; in the case at hand, the 19-year-old defendant was charged with making terrorist threats for claiming he would “shoot kids.”⁸ Also, in 2016, in a case of first impression in the state, a Florida appellate court considered whether the trial court abused its discretion by denying the plaintiff’s motion for a new trial based on a juror posting comments about the case on social media.⁹ After swearing in the jury, the trial judge instructed: “Do not discuss this case or ask for advice by any means at all, including posting information on an Internet website, chatroom, or blog.”¹⁰ Despite this instruction, a juror posted a series of tweets on his Twitter account during trial, including: “I still hate the fact that I have to be here all day” and “Everyone is so money hungry that they’ll do anything for it.”¹¹ The appellate court held that, while the juror’s tweets were “potentially offensive,” the trial court didn’t abuse its discretion in concluding that the tweets “were insufficiently prejudicial to Plaintiff to require a new trial.”¹² As a result of situations like these, in 2016, California proposed, but failed to pass, a bill that would have imposed a fine of up to $1,500 on any juror that performed Internet research on a case or used social media during a trial.¹³

Because states don’t have such laws in place, judges and counsel should consider examining potential jurors about their use of social media during voir dire, and judges should continue to admonish jurors not to discuss the case on social media during the trial. Moreover, given that younger jurors in particular often misapprehend the scope of the prohibition,¹⁴ judges should clarify that the bar applies to posting any remarks on social media about the case, even if the juror posts anonymously or under a pseudonym. One district court judge, who is just 50 years old, clearly understands these issues and has taken steps to address them in his cases. In one trial, he instructed jurors not to discuss the case among themselves, not to tweet about it, not to post items about it to Facebook, and not to research it on the Internet in any way. He said, “I told them if they did anything on the Internet regarding this case, I would throw them in jail . . . after the case I learned that they took my admonitions so seriously that several were fearful about checking their email!”¹⁵

[3] The CSI Effect

Hip-Hop and pop culture have always influenced jurors, but no such event has had a larger impact on the legal system than the television show CSI: Crime Scene Investigation. Although it was cancelled in 2015,¹⁶ the popular show’s 15-year run has had a dramatic effect on public perception of evidence. This fictional show was crucial in popularizing the “true crime” genre of television and podcast media,¹⁷ which has exploded since CSI’s cancellation. The more recent widespread popularity of the podcast series Serial and the television docuseries Making a Murderer have intensified the CSI effect and caused it to evolve into what may now more appropriately be called the True Crime effect¹⁸—although the phenomenon is still referred to by its original name.

The CSI effect promotes often unrealistic expectations among jurors of how conclusively forensic evidence determines innocence or guilt, or, from the perspective of the civil litigator, causation or liability. The show and its true crime genre progeny have caused jurors to recalibrate the way they consider evidence, which in turn has impacted the way they contemplate the burden of proof. Rather than “beyond a reasonable doubt,” many prosecutors argue that jurors are applying a “beyond any doubt” standard, completely dependent on forensic, scientific evidence.¹⁹ This has similar implications for a civil litigator.

The use of deductive reasoning, once the cornerstone of the justice system, is being replaced by the need for absolute scientific proof of guilt or liability. Some complain that jurors have lost all ability to make assessments of credibility or weigh evidence. Instead, jurors expect that attorneys will present impossibly conclusive evidence like that often seen on CSI. Jurors in mock trials on civil...