Persuasion Matters

the words

Promises, Pledges and Punishment?

The issue of Google, outside research and juries is a hot topic lately.  It’s probably even hotter amongst my fellow jury consulting peers and colleagues.

A few weeks ago, I Tweeted an article that appeared in the New York Times titled, “Judge Considers Pledge for Internet Use.”  In a nutshell, the article addressed the ongoing problems and concerns that Googling Jurors pose to the judicial system.  Judge Shira Scheindlin (District Court in Manhattan) addressed the issue head-on and was quoted as saying:

I am keenly aware that there are convictions set aside all over the country when we learn later during deliberations a juror looked up the keyword or the key name. … We in the judiciary have been discussing this. … I can’t seize [the jury’s] computers and their BlackBerrys.  I can’t lock them up… [but] I can try to intimidate them.

While I’d be hard-pressed to find a judge who fails to instruct the jury to avoid internet or outside research of any kind, Judge Scheindlin took things a step further and actually required jurors to sign a written pledge promising that they would not conduct online research, Google, or use the internet in any way to research the case.  Judge Scheindlin also let jurors know that they could face perjury charges if they violated the pledge.

A respected colleague of mine, Doug Keene, has used his magic powers to obtain the actual language used in the pledge.  Since he did the legwork, I think it’s only fair that I provide a link to his blog post that shares his discovery.  The language is below:

Is the pledge a good idea?  I suppose it couldn’t hurt, but I don’t think it’s going to solve the problem on its own.  Yes, the act of signing one’s name to a written pledge takes the oath up a notch.  And yes, the threat of perjury charges can (and will) keep some jurors in line.  But make no mistake: the mere fact that jurors sign a document or face a consequence will not cure all transgressions.  Minimize?  Perhaps.  But eliminate?  Very doubtful.

I’m a staunch believer that an admonishment to avoid the 24/7 World of Instant Information will not be fully appreciated by jurors unless they understand why conducting such research poses such a threat to our judicial system.  Many jurors believe researching information, filling in the gaps and seeking answers to unknowns will make them “better” jurors and able to render a “fair” verdict.  Most have no idea that engaging in such behavior does the opposite: it can tilt the scales of justice in a way that could result in irreparable harm and is, at the very least, unfair to the parties.

In all fairness, I was not in the courtroom when Judge Scheindlin addressed the pledge with the jury panel and I have not seen a court transcript of the discussion.  If she presented jurors with the basic fundamental reasons and logic behind her admonishment and the need for a written pledge, then she deserves kudos.  If she merely added the written pledge as an extra layer on top of her usual verbal admonishment?

Then I think she missed out on a great opportunity to teach… and to be understood.

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