High-profile cases command extraordinary media attention that could easily influence the way a jury thinks about a case. Nowadays it’s not only newspaper and TV stories that might contaminate a jury, but also social media in all its various forms.
Picture this: A juror seated in a high-profile case spends the day in court listening to testimony, then checks his email at home that night. Before he can even get to his email, a story pops up about the very case he’s judging. He might also check social media accounts like Facebook, Twitter, WhatsApp, LinkedIn, and Instagram. It may be impossible for him to avoid exposure to information on the case. Even just reading a headline could alter his ability to be fair and impartial.
Take the recent federal trial of reputed Mexican drug lord Joaquin Guzman, “El Chapo.” The court took painstaking efforts to advise jurors to stay away from any reporting, commentary, or discussion about the case.
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Media attention was so prevalent and El Chapo’s story so exploited in docudramas, podcasts, and books, that avoiding outside coverage was next to impossible unless jurors slept in the courthouse. According to a note written by a sitting juror following El Chapo’s conviction, at least five jurors ignored the judge’s instructions and lied to the court when asked during trial whether they had avoided all media coverage.
“You know how we were told we can’t look at the media during the trial?” a juror told Vice News. “Well, we did.”
According to the juror, part of what they’d learned online was that El Chapo had drugged and raped young girls. This information, although kept out of the trial, became part of their jury deliberations.
The judge had done what he could. He’d reiterated the admonishment against media exposure and social media. He’d kept the jurors’ names anonymous. He questioned them during trial to see if they were following those orders. The safeguards were, nonetheless, insufficient to guard against juror contamination. Based on this information, his attorneys moved for a new trial.
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I had a case where the judge specifically instructed jurors not to talk about it, whether in-person or online with anyone — spouses, coworkers, friends, fans, followers.
The very next day, the prosecutor looked up one of the jurors and discovered that overnight he’d tweeted followers regarding the case and told how, to his surprise, he’d been selected as a juror. He was promptly dismissed.
Today, it’s impossible to shelter jurors from information outside the courtroom on high-profile cases.
In a simpler time when jurors had no smartphones or computers and were actually sequestered so they could not communicate with the outside world once deliberations began, a guarantee of securing a jury that only relied on the evidence presented in court was more easily accomplished.
Many jurors today either don’t understand the severity of the warnings, get exposed to information accidentally, or just can’t foresee how hard breaking their usual electronic habits might be.
Judges do what they can. They warn jurors in advance that the case will be subject to media attention and ask whether they will be able to ignore all coverage. But, while most jurors believe they’re up to this challenge, it’s more difficult than it appears. So, what else can be done?
Judges can limit press exposure inside the courtroom. They can decide whether to permit the trial to be broadcast live; whether photographs can be taken; how many journalists will be allowed in; and whether defense and prosecution can speak to the media. For example, the judge in the upcoming Harvey Weinstein sexual assault case has agreed to close the court to journalists during a hearing about Weinstein’s alleged prior bad acts so that future potential jurors will not be contaminated by information that may or may not ultimately come into evidence.
They can reiterate warnings about staying away from all sources of information or engaging in dialogue about the case on a daily basis during trial. And good judges will follow up during the course of the case by specifically asking if jurors are abiding by those restrictions.
What can we do as lawyers? A rule of thumb is to pick jurors who from the get-go have had less media exposure to the case. First, media exposure generally means bad press for the defendant. Jurors with less media exposure are more likely to be tabula rasa than others. Also, jurors less invested in the case will be giving up less in continuing to stay away from information about it.
Attorneys can also follow up on the social media practices of seated jurors during the case to see if they’re violating the judge’s orders and ask that the court question them individually if there’s any doubt. Finally, at the end of the case if there’s a conviction, attorneys have an absolute obligation to talk to the jurors (no matter how difficult that may be) and to ask as many of them as possible if any outside information contaminated their deliberations.
Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.