Instructing jurors on the use (or non-use) of media in the digital world

By: Rox Laird on March 28th, 2016

The ubiquitous presence of social media present new challenges in keeping jurors from seeing potentially prejudicial information during trials.

That was at issue in a ruling handed down by the Iowa Supreme Court Friday. The Court suggested that Iowa trial judges consider broader admonitions to jurors to avoid not just traditional print news media but online media that ranges from news websites and blogs to Twitter, Facebook and a growing array of new electronic media.

Back in the day when “media” was limited to newspapers and news broadcasts, it was easier for jurors to avoid news related to their trials. Today, social media stream information to people’s electronic devices 24 hours a day, seven days a week.

“Midtrial publicity is not a new phenomenon,” Justice Daryl Hecht wrote for the unanimous Court. Indeed, in an 1894 case, the Iowa Supreme Court said jurors who read newspaper editorials about a criminal trial during deliberations “meddled and interfered with the order of the court in a very reprehensible and unseemly manner.”

More recently, the Court has recognized that jurors are part of a “new electronic world,” and in Friday’s decision, the Court said it “applies precedent governing print materials to that electronic world.”

Theodore Ray Gathercole II appealed his 2014 conviction for attempted murder and robbery in Linn County on grounds that the trial judge should have polled the jurors to determine whether they were influenced by an inaccurate report about the case posted online while jurors were deliberating. The post inaccurately reported that police found Gathercole’s handprint linking him to the assault.

Besides not wanting to draw attention to the inaccurate information, the trial judge cited several reasons for rejecting Gathercole’s request that the jury be polled: The inaccurate information was in the text of the online article, not in the headline; no juror came forward to report having seen the article; and, based on the trial evidence, there was no dispute that the article was inaccurate. Also, the judge had repeatedly admonished the jurors not to read about the case during the trial.

Although the Court unanimously upheld the trial judge’s decision, the Court did not rule out the need for jury polls in light of printed or electronic information disseminated in the middle of a trial. When necessary, Justice Hecht wrote, Iowa’s trial courts should “resolve doubts about whether information published midtrial requires a poll requested by a party in favor of granting a poll.”

Factors that go into resolving such doubts, the Court said, include weighing the credibility of the source of the disputed information, the conspicuousness of the information in a publication or electronic medium, and the frequency and scope of dissemination.

As a preventative measure, the Court recommended that Iowa trial judges “supplement their jury admonitions and instructions to accommodate technological progress and the danger it can pose to fair and impartial trials.”

The Court also suggested it may be making changes in its guidelines regarding jury polling. The American Bar Association recently amended its model standard to cover information has been disseminated or otherwise made publicly available. While noting the revised language in a footnote, the Court said, “we leave for another day the question whether to adopt the revised ABA standard.”

Stay tuned for more on that, whether it’s your local newspaper, blog, or social media.

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On Brief is devoted to appellate litigation, with a focus on the Iowa Supreme Court, the Iowa Court of Appeals, and the United States Court of Appeals for the Eighth Circuit.
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