We recently noted that the Judicial Conference Committee on Court Administration and Case Management has issued some model instructions “to help deter jurors from using electronic technologies to research or communicate about cases on which they serve.” See Model Jury Instruction Recommended To Deter Juror Use Of Electronic Communication Technologies During Trial; see also Memorandum On The Juror Use Of Electronic Communication Technologies (proposing model jury instruction). The new federal model instruction may be part of a new trend.
The Ohio State Bar Jury Instruction (called “The Admonition”) warns about relying on outside information or relying on outside influence. The model instruction also warns that noncompliance with the instruction could result in a mistrial. The new Ohio State Bar Jury Instruction provides:
“1. ADMONITION. It is now my duty to give you what is called “The Admonition”. This is a standing court order that applies throughout the trial. I will try to remind you of The Admonition at every recess, but if I forget to remind you, it still applies.
“Ladies and gentlemen, you (may be) (have been) selected as jurors in this case. We (will take) (have taken) the time to seat a neutral jury so this case can be decided based just on what goes on in the courtroom, and not on outside influences. You are required to decide this case based solely on the evidence that is presented to you in this courtroom. It is my role as the judge to determine what evidence is admissible and what is not admissible. It would be a violation of your duties, and unfair to the parties, if you should obtain other information about the case, which might be information that is not admissible as evidence.
“You must carefully listen to all the evidence, and evaluate all of it. Do not reach any conclusions until you have heard all the evidence, the arguments of the attorneys, and the judge’s instructions of law. Otherwise you will have an incomplete picture of the case.
“Do not discuss this case among yourselves or with anyone else. The reason for this is you might be given information or an opinion that could alter the way in which you view the evidence or the instructions or even how the case should come out. Such an opinion or conclusion would be based on an incomplete or inaccurate view of the evidence and therefore would be clearly unfair.
“2. WARNING ON OUTSIDE INFORMATION. In addition, you absolutely must not try to get information from any other source. The ban on sources outside the courtroom applies to information from all sources such as family, friends, the Internet, reference books, newspapers, magazines, television, radio, a computer, a Blackberry, iPhone, smart phone, and any other electronic device. This ban on outside information also includes any personal investigation, including visiting the site, looking into news accounts, talking to possible witnesses, re-enacting the allegations in the (Complaint)(Indictment), or any other act that would otherwise affect the fairness and impartiality that you must have as a juror.
“3. WARNING ON OUTSIDE INFLUENCE. The effort to exclude misleading outside influences information also puts a limit on getting legal information from television entertainment. This would apply to popular TV shows such as Law and Order, Boston Legal, Judge Judy, older shows like L.A. Law, Perry Mason, or Matlock, and any other fictional show dealing with the legal system. In addition, this would apply to shows such as CSI and NCIS, which present the use of scientific procedures to resolve criminal investigations. These and other similar shows may leave you with an improper preconceived idea about the legal system. As far as this case is concerned, you are not prohibited from watching such shows. However, there are many reasons why you cannot rely on TV legal programs, including the fact that these shows: (1) are not subject to the rules of evidence and legal safeguards that apply in this courtroom, and (2) are works of fiction that present unrealistic situations for dramatic effect. While entertaining, TV legal dramas condense, distort, or even ignore many procedures that take place in real cases and real courtrooms. No matter how convincing they try to be, these shows simply cannot depict the reality of an actual trial or investigation. You must put aside anything you think you know about the legal system that you saw on TV.
“4. WARNING ON OUTSIDE CONTACT. Finally, you must not have contact with anyone about this case, other than the judge and court employees. This includes sending or receiving e-mail, Twitter, text messages or similar updates, using blogs and chat rooms, and the use of Facebook, MySpace, LinkedIn, and other social media sites of any kind regarding this case or any aspect of your jury service during the trial. If anyone tries to contact you about the case, directly or indirectly, do not allow that person to have contact with you. If any person persists in contacting you or speaking with you, that could be jury tampering, which is a very serious crime. If anyone contacts you in this manner, report this to my bailiff or me as quickly as possible.
“5. CONCLUSION. You should know that if this Admonition is violated, there could be a mistrial. A mistrial means that the case is stopped before it is finished and must be retried at a later date. This can lead to a great deal of expense for the parties and for the taxpayers, namely you and your neighbors. No one wants to see money, especially tax dollars, wasted. If a mistrial were to be declared based on a violation of this Admonition, the juror responsible could be required to pay the cost of the first trial, and could also be punished for contempt of court.”