The ABA Journal reports on a Reuters Legal finding that mistrials due to internet research and modern forms of communications by jurors is on the rise.

The article states:

Reuters Legal checked Westlaw for challenges related to jurors’ Internet conduct and found 90 verdicts called into question since 1999. More than half the cases are from the last two years. In 28 of the cases, 21 of them since January 2009, judges granted new trials or overturned verdicts.

The wire service also checked tweets with the words “jury duty” in a three-week period ending in December. “Tweets from people describing themselves as prospective or sitting jurors popped up at the astounding rate of one nearly every three minutes,” the story says.

Many of the tweets simply expressed boredom. But many included snap decisions on guilt or innocence. “Jury duty is a blow. I’ve already made up my mind. He’s guilty. LOL,” one tweet read.

That last quote looks like a case of a juror thinking out loud. It’s common knowledge that jurors begin to form opinions as early as opening statements. I don’t profess to be able to read juries as far as what the verdict will be. But there have been many trials that the jury appeared to have its mind made up—one way or the other—before the trial was over.

I doubt that the internet is greatly increasing the number of jurors who communicate about the trial while it is going on. What is changing is the medium of the communication. Instead of telling a family member or friend about the trial in person, jurors are texting, posting on Facebook and using twitter. This is a reflection of the growth of these forms of communication—not juror conduct as a whole. Now there is a way for jurors to get caught. There didn’t use to be.

I believe that the vast majority of jurors take their oath seriously and do not violate the Court’s instructions about communications concerning the case. But this shows that courts need form jury instructions that specifically address texting, Facebook, twitter and other electronic communications.

I’m not sure how I feel about internet research by jurors. I’ve done enough focus groups to know that jurors have questions that don’t get answered in trial—often about subjects that the lawyers are prohibited from addressing like liability insurance. In focus groups a know-it-all juror often answers the question—incorrectly. I might would rather have the jurors researching on the internet where they are more likely to get a correct answer.