The incidence of juror use of advanced communications technologies to conduct independent research on trial-related issues and to communicate with others about the trial while it is underway is a source of increasing concern about the fairness of jury verdicts. In the past two years, at least 90 court opinions have been published addressing allegations of juror misconduct, of which 28 of the verdicts were ultimately overturned. In this study, the NCSC seeks to document the extent to which jurors in contemporary jury trials engage in these activities and to identify trial characteristics, trial procedures, and juror characteristics that tend to exacerbate or minimize jurors’ propensity to do so. The study is being undertaken with support from grants from the US Department of Justice, Bureau of Justice Assistance and the State Justice Institute.

The first phase of the study is a pilot test of the survey instruments and study protocols to ensure that the study methods will capture accurate and reliable information. The pilot test involves surveys of trial judges, attorneys, prospective jurors, alternate jurors, and trial jurors in 30 civil and non-capital criminal trials. These surveys include the following:

• Case Information Sheet collecting detailed information about the trial including the legal claims or criminal charges, the number and types of litigants, the length of trial and deliberations, the trial procedures and practices employed, and the jury verdict.
• Judge Questionnaire soliciting opinions about the legal and evidentiary complexity of the case, the relative weight of the evidence presented at trial, the judge’s reactions to the jury verdict, and the judge’s opinions about the severity of the problems related to juror use of communication technologies in the local jurisdiction.
• Attorney Questionnaires soliciting information about attorney use of the Internet to investigate the suitability of prospective jurors, the adequacy of judicial admonitions related to juror use of communication technologies, attorney opinions about the legal and evidentiary complexity of the case, the relative weight of the evidence presented at trial, the attorneys’ reactions to the jury verdict, and their opinions about the severity of the problems related to juror use of communication technologies in the local jurisdiction.
• Prospective Juror Questionnaire collecting baseline information from the individuals who were assigned to the jury panel for voir dire, but were not ultimately selected as trial jurors or alternates. This survey will inquire as to citizens initial propensity to conduct independent research or to communicate with others about the trial, their views about the appropriateness of these actions, and their access to and familiarity with communication technologies.
• Alternate Juror and Juror Questionnaires soliciting their opinions about the trial and deliberations, their desire for information to supplement the evidence presented at trial, their efforts to acquire that information, the extent to which they relied on any extraneous information when making their verdicts, whether they shared that information with other jurors, and whether they communicated with others about the case while the trial was underway. The Alternate Juror and Juror Questionnaires also collect demographic information including previous jury experience and opinions about the role of jurors in the justice system. To download surveys, click here.

The study itself is not intended to either promote or discourage the inappropriate use of communication technologies by trial jurors, but merely to document the extent to which jurors are already engaged in these activities. The study protocols are designed to protect jurors from punishment for disclosing evidence of misconduct in their survey responses as well as to preserve the finality of the jury verdict by ensuring that those responses cannot be used to support an appeal.

The responses to all participant surveys will be kept completely confidential pursuant to 28 CFR 22. These federal regulations guarantee the confidentiality of information obtained for research purposes conducted with support from the US Department of Justice. These provisions were enacted to protect the credibility and reliability of federally-supported research and statistical findings by minimizing concerns over subsequent uses of identifiable information. To participate in the study, the trial judge and the trial attorneys must all sign a Consent and Waiver Form indicating that they will rigorously adhere to the study protocols concerning the confidentiality of the data and indicating their understanding that the survey responses cannot be used to support allegations of juror misconduct in a subsequent appeal of the jury verdict.

NCSC staff will analyze the survey data, make adjustments to the survey instruments and study protocols as necessary, and seek funding with which to undertake a larger study in late 2011.