New Model Ninth Circuit Admonition To Jurors On Use Of High-Tech Communications Resources

In the updated 2010 Ninth Circuit Model Criminal Jury Instructions, released last week, a revised model instruction addresses the issue of admonishing the jury about the use of high-tech communications resources; additionally, a new Jury Instruction Resource Page here at FederalEvidence.com now provides access to all model jury instructions that are available in one convenient place.

Importantly, evidence law concerns not only the admissibility of evidence, but also the manner in which the fact finder considers and weighs the evidence that was admitted by the court. Jury instructions serve an important role in advising the jury how to consider particular evidence. Given this special function, the FederalEvidence.com site has now added a new Jury Instruction Resource Page. This new resource provides all the model federal jury instructions in one convenient place.

One new emerging jury instruction trend concerns whether and how to admonish the jury about using the Internet and other resources during the trial. Increasingly, the Internet, blogs, bulletin boards, emails, text messaging and many other tech devices and applications are becoming a regular part of a juror's life. The ease of their use can open the jury room to outside information about a trial, giving rise to a need for a court to consider routinely admonishing the jury about their responsibilities. /p>

Previously, the Federal Evidence Blog noted some new model jury instructions to admonish jurors about the use of various electronic communication technologies during trial. See, e.g., Model Jury Instruction Recommended To Deter Juror Use Of Electronic Communication Technologies During Trial (February 9, 2010) (given the increasing prominence of juror access to Internet information during trial, the U.S. Judicial Conference Committee on Court Administration and Case Management suggested model instructions “to help deter jurors from using electronic technologies to research or communicate about cases on which they serve” ); Another Model Jury Instruction Issued To Discourage The Use Of Electronic Communication Technologies During Trial (June 4, 2010) (discussing the Ohio State Bar Jury “Admonition” on jurors relying on outside information or on other outside influences and that noncompliance with the instruction could result in a mistrial).

Now the Ninth Circuit has released in its 2010 Model Criminal Jury Instructions, which replaces the 2003 edition. The 2010 edition includes several model instructions concerning the issue of juror access to exogenous information through the use of various high-tech devices or applications. See, e.g., Manual of Model Criminal Jury Instructions for the District Courts of the Ninth Circuit, at 9 (Instruction 1.8 (Conduct of the Jury)), 17 (Instruction 2.2 (Consideration of Evidence - Conduct of the Jury)). These model instructions reflect, but do not repeat the exact wording of admonitions recommended by the U.S. Judicial Conference.

In relevant part, the 2010 version of Ninth Circuit Criminal Instruction 1.8 (Conduct of the Jury) admonishes jurors:

"... because you must decide this case based only on the evidence received in the case and on my instructions as to the law that applies, you must not be exposed to any other information about the case or to the issues it involves during the course of your jury duty. Thus, until the end of the case or unless I tell you otherwise:

Do not communicate with anyone in any way and do not let anyone else communicate with you in any way about the merits of the case or anything to do with it. This includes discussing the case in person, in writing, by phone or electronic means, via email, text messaging, or any Internet chat room, blog, website or other feature. This applies to communicating with your fellow jurors until I give you the case for deliberation, and it applies to communicating with everyone else including your family members, your employer, the media or press, and the people involved in the trial, although you may notify your family and your employer that you have been seated as a juror in the case. But, if you are asked or approached in any way about your jury service or anything about this case, you must respond that you have been ordered not to discuss the matter and to report the contact to the court.

Because you will receive all the evidence and legal instruction you properly may consider to return a verdict: do not read, watch, or listen to any news or media accounts or commentary about the case or anything to do with it; do not do any research, such as consulting dictionaries, searching the Internet or using other reference materials; and do not make any investigation or in any other way try to learn about the case on your own. The law requires these restrictions to ensure the parties have a fair trial based on the same evidence that each party has had an opportunity to address. A juror who violates these restrictions jeopardizes the fairness of these proceedings[, and a mistrial could result that would require the entire trial process to start over]. If any juror is exposed to any outside information, please notify the court immediately."
Manual of Model Criminal Jury Instructions for the District Courts of the Ninth Circuit, at 9 (2010) (emphasis added).


The Model Cautionary Instruction for the first or subsequent recesses (Model Instruction 2.1 (Cautionary Instruction - First Recess)) is perhaps a bit more direct in its warnings than the conduct of the jury instruction. The cautionary instruction directs jurors to:

"Remember, until the trial is over, do not discuss this case with anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else, and do not allow others to discuss the case with you. This includes discussing the case in Internet chat rooms or through Internet blogs, Internet bulletin boards, emails or text messaging. If anyone tries to communicate with you about the case, please let me know about it immediately. Do not read, watch, or listen to any news reports or other accounts about the trial or anyone associated with it, including any online information. Do not do any research, such as consulting dictionaries, searching the Internet or using other reference materials, and do not make any investigation about the case on your own."
Manual of Model Criminal Jury Instructions for the District Courts of the Ninth Circuit, at 17 (2010) (emphasis added); see also Instruction 7.2 (Consideration of Evidence - Conduct of the Jury).


Because the range and diversity of high-tech information devices appears to be expanding at a rapid rate, it is likely there were be a need for constant adjustments to the model instructions concerning juror exposure to exogenous information. In updating its Criminal Jury Instructions, the Ninth Circuit has attempted to find a succinct and forceful way to impress jurors on their responsibilities to provide the parties in a case a fair trial based on the same evidence that each party has had an opportunity to address. As the federal courts develop new instructions and revise old ones concerning the jury's treatment of evidence, these will be reported on Federal Evidence.com's new Jury Instruction Resource Page.

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Photo Description: Ninth Circuit Court of Appeals Courthouse in San Francisco, CA.

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