A NY Times story recounts the problem of jurors using PDAs when in the courtroom---and home computers when out of court but not sequestered---both to find out information on the case that is not formally part of the evidence and to post info about the case to others (via email, twitter, etc). Both such activities violate the jurors' obligations.
The article mentions two things courts can do to stem the tide of outside influence and communications to the outside world: 1) Issue warnings with better explanations for the prohibitions; 2) Confiscate PDAs and cell-phones. Presumably number 2 would be necessary for those undeterred by the better explanations of number 1, and for this incorrigible lot, one would have to think about greater use of sequestration. An additional option would be to increase the penalties for jurors who seek outside info or transmit confidential info during the course of the case. Voir dire could also seek to weed out crackberries and the like---although given the incentive people already have to try to avoid jury service, adding a set of potentially disqualifying questions of the form "can you really not Google the defendant?" would encourage more bogus excuses.
Before rushing into any such changes, however, it would be useful to know just how large the problem is. The Times story does not say, offering only this: "There appears to be no official tally of cases disrupted by Internet research, but with the increasing adoption of Web technology in cellphones, the numbers are sure to grow." Even if that's true, we would want to know whether technology poses an especially troubling instance of jurors disregarding the rules. For example, how often do jurors disregard a judge's instruction to draw no adverse inference from a defendant's failure to testify, knowing---as many of them do from watching crime dramas---that a defendant who does not testify may well be trying to prevent the jury from learning of his criminal record? Is this a bigger or smaller problem than the use of PDAs, etc?
Finally, it's worth thinking about the rules of evidence themselves. Sure, individual juries shouldn't be overriding the law about what is or is not admissible on a case-by-case basis, but if jurors have a hard time following the rules, that may be because the rules are, at least in some respect, wrong-headed. To name only one of the most famous, the "dying declaration" exception to the hearsay exclusion is premised on the dubious view that people about to die are especially unlikely to lie about the cause of their death. More broadly, if the rules of evidence excluded less probative evidence, we would have less reasion to worry about jurors seeking that evidence elsewhere. That's not to say that we shouldn't be worried about jurors turning to unreliable sources of information, but only to point out that some of the concern here is that jurors are going outside of the formal legal structure of the trial the better to get at the truth.
Posted by Mike Dorf