Sorry Linus, I need your security blanket: how the smartphone, constant connectivity with the Internet, and social networks act as catalysts for juror misconduct.

• Author: Delaney, Patrick M.

"The jury has the right to judge both the law as well as the fact in controversy." (2)

--John Jay, First Chief Justice of the United States Supreme Court

INTRODUCTION

Linus van Pelt was first introduced to us as one of the characters from the Charles Schultz comic strip Peanuts. (3) Linus was the best friend of Charlie Brown, and serves as the comic's philosopher. (4) His most defining characteristic is his blanket, or "security blanket." (5) It was in fact Linus, or Charles Schultz, who coined the term "security blanket." (6) Linus was never without his blanket, and periodically even used the blanket to ward off those who would tease him about his unusual attachment. (7)

Linus has many connections to today's average juror, not only due to his intelligence, but also, because of his defining characteristic: his security blanket. Today's jurors also report for jury duty with their own security blanket in the form of a cell phone or smartphone. (8) Cell phones have permeated every facet of our lives, and with the introduction of the smartphone, access to the Internet is increasing at an exponential rate. Much like Linus, jurors are using their security blanket for more than a comfort object. (9) However, whereas Linus merely sought to defend himself from a bully, a juror's use of his or her cell phone during trial threatens the legitimacy of the entire trial and turns what should be a neutral decider of fact into a biased party.

In every trial, attorneys on both sides can agree on one thing: a biased juror or a juror who will engage in misconduct is unwanted. (10) The role of each juror in a trial is to decide the case based on the evidence presented within the walls of the courtroom. (11) If jurors take it upon themselves to research additional information or comment on the trial, misconduct has occurred. (12) Even though juror misconduct can occur in a variety of ways, a juror commits misconduct simply by violating the rules and instructions of the court. (13) Recently, the Internet and social networking websites, usually accessible via a smartphone, have emerged as a new outlet for juror misconduct. (14)

A juror conducting additional, unauthorized research is not a novel concept. (15) However, with the increasing popularity of social networking (16) and the ability to access the Internet through one's cellular telephone, courtrooms are discovering an alarming number of cases where "Internet Misconduct" (17) occurs through the use of a social networking website (18) or Internet search engine. (19) Whether the court presiding over a case determines that actual misconduct has occurred through the use of the Internet is not at issue in this article; rather, the prevailing problems of jurors using the Internet and social networking to violate their responsibilities, engage in Internet Misconduct, or create additional issues and burdens for the justice system shall be addressed.

The smartphone has led to uncontrollable access to the Internet at a moment's notice. Now, with the Internet at their fingertips, jurors have found two ways to subject themselves to misconduct by using the Internet. The first arises when a juror uses the Internet to research additional information that was not presented to him or her during the trial. The second occurs when a juror utilizes a form of social networking media. This form of misconduct arises when a juror posts a message on the Internet that is directly related to the trial of which he or she is a part of, or to look up participants in the trial itself.

This seemingly unstoppable wave of temptation for jurors is the product of a series of novel and profound inventions. The launch of Myspace (20) in 2003 prompted the advent of social networking. Instantly, anyone with an Internet connection could create a personal website featuring personal information and providing an uncensored forum to express ideas as well as discover data about other persons using the Internet. Not far behind, Facebook (21) followed suit in 2004, but started by limiting access only to college students. However, by September 2006, "anyone over the age of 13 with a valid email address could join Facebook." (22) Finally, in January 2007, Apple (23) unveiled the iphone, (24) thrusting society into the age of the smartphone. (25) The smartphone provided an individual with Internet access at a moment's notice. It is this combination of smartphone technology and social networking that has acted as the catalyst for increased juror impropriety. More recently, sites such as Twitter, (26) Foursquare, (27) Linkedin, (28) Google+, (29) and YouTube (30) have continued to inject the Internet into our daily lives.

Once thought to be mere toys and tools for members of Generation y, (31) the popularity and usage of smartphones and social networking sites continues to grow exponentially. (32) To further complicate the matter, the unending connectivity to the Internet encourages the growing desire to post, blog, or Tweet (33) about each and every moment of an individual's life. Unfortunately, one of the stark realities of the Internet, which is becoming more widely known, is that once someone hits "send," the contents of the message are forever accessible to anyone with an Internet connection. The permanency of the Internet not only makes it easier for someone to discover a juror's misconduct, but also, transforms a momentary comment or byline into a defining statement for an individual that will follow him or her forever. (34)

In the context of the judicial system, it is the judges, lawyers, and parties to lawsuits who are equally affected by juror's statements. (35) While this problem is not exclusive to criminal law, it is within the context of criminal law that the most severe problems are presented to the courts. (36) This is not an attempt to suggest any lack of seriousness associated with a civil claim, but the fact that the stakes for a defendant remain higher in a criminal case because an individual's fundamental, constitutional rights are at issue is a significant difference. (37)

The knee jerk reaction by the courts and State Bar Associations has been to include a standard jury instruction admonishing jurors from using the Internet to either conduct any research or use social media to comment about the trial. (38) However, the alarming number of cases involving Internet Misconduct that arise from the use of social media or Internet search engines demonstrates that all too often, jurors succumb to the temptation of constant connectivity. (39) This growing trend highlights a breakdown between the mindset of jurors and the judicial system. "It seems ... that many jurors do not see blogging, Tweeting or posting as communication, or at least they don't consider it to fall within the rubric of traditional admonitions." (40)

2. WHERE AND WHEN INTERNET MISCONDUCT IS OCCURRING

   "[T]he growing research on jury behavior or jury decision making suggests that jurors are influenced by a host of factors that can derail jury impartiality." (41) Most importantly, jurors have become conditioned to be constantly wired to the Internet through the use of smartphones and continue to show a desire to share their daily activities through social networking (42) even in the face of direct instructions from the court to refrain from doing so.

   For example, in July 2011, Jonathan Hudson was selected to serve on a civil trial in Fort Worth, Texas. (43) During the trial, Mr. Hudson sent a "Friend Request" to the defendant and discussed the case on his Facebook page. (44) The defendant promptly notified her "lawyer who, in rum, notified the presiding judge." (45) Mr. Hudson, who was dismissed from the case, plead guilty to four counts of contempt of court. (46)

   The most alarming aspect of the misconduct was Mr. Hudson's reaction to the incident. Prior to the trial, Texas amended its jury instructions to include specific language that prohibited jurors from using the Internet for either additional research or social networking. (47) In the wake of the incident, Mr. Hudson still felt as if he had not done anything improper. (48) Following his dismissal from the jury, Mr. Hudson sent an additional message to the defendant apologizing for his conduct and complaining that he was being prosecuted for his conduct. (49) The prosecutor in the case was quoted as saying "I've never seen this before." (50) "[Mr. Hudson] seemed to be a very nice kid who just made a silly mistake. ..." (51) After the criminal proceedings, Mr. Hudson's attorney described his client's mistake as "a reflection of the times." (52)

   Although this incident occurred in a civil case, this type of juror behavior is not reserved solely for the civil sector. (53) Mr. Hudson's conduct is a prime example of the evolving mindset of the contemporary juror. "With Twitter and instant messaging, being first, getting something out immediately is a thrill for them. They get caught up in the excitement instead of following the rules and laws of the legal system." (54)

   One of the more significant cases of Internet Misconduct arose in Wardlaw v. Maryland. (55) In Wardlaw, the defendant was on trial for one count of rape, two counts of sexual offense, three counts of assault, two counts of sexual child-abuse, and one count of incest. (56) During the trial, the victim testified that on three occasions she had sex with the defendant. (57) The victim's "therapeutic specialist" also testified during the trial and revealed the victim was diagnosed with "a learning disability, attention deficient hyperactivity disorder, oppositional defiant disorder.... and bi-polar disorder." (58) At no point during the trial did anyone testify as to what Oppositional Defiant Disorder was or explain the diagnosis. (59) While the jury deliberated, a juror used the Internet to research Oppositional Defiant Disorder, and then reported the findings to the other members of the jury. (60) The information conveyed to...