STRATEGIES TO MITIGATE THE IMPACT OF ELECTRONIC COMMUNICATION AND ELECTRONIC DEVICES ON THE RIGHT TO A FAIR TRIAL

By Justin C. DawsonDuren BanksMichael J. D. VermeerShoshana R. Shelton

The proliferation of electronic communication and electronic devices throughout modern society presents new challenges to the judicial system in protecting the right to a fair trial. Electronic communication, including texts, emails, blogs, social network posts, and other information accessed through the Internet, provides opportunities to expose confidential witnesses or informants, intimidate witnesses and victims from testifying, and bias jurors. Electronic devices can be used to record an image of a witness, identify that witness and expose him or her on the Internet, or communicate with a juror in an attempt to influence the outcome of a case. Jurors may also compromise their own independence by using electronic devices to access or share information about trial proceedings before the case is resolved. Court practices to protect the right to a fair trial have not kept pace with rapidly evolving electronic communication and devices, and traditional approaches to identify and protect against witness intimidation and to preserve juror impartiality are likely insufficient in the face of their near universal use, which facilitates access to information about nearly anything and anyone.

On behalf of the National Institute of Justice, the Priority Criminal Justice Needs Initiative convened a panel, including judges, lawyers, educators, and other experts, to identify ways that electronic communication can impact the right to a fair trial and to recommend strategies to protect witnesses from intimidation and jurors from compromising their independence. The panel proceedings and recommendations are presented in this report.

KEY FINDINGS

Judges Should Have Authority to Use Their Own Discretion to Find Solutions for Their Courtrooms

  • Legislation may help mitigate some of the problems introduced by electronic communication, but judges need discretion in their own courtrooms.
  • Judges and attorneys need flexibility in engaging with jurors, who are used to communicating electronically throughout the day but must be limited during trial proceedings.

Electronic Device Bans in the Courtroom Are Viewed as Effective in Mitigating Witness Intimidation

  • However, jury sequestration to minimize or eliminate misconduct with electronic communication is considered to be generally impractical and counterproductive.

More Public Education Would Clarify the Importance of Due Process and How Electronic and Social Media Communication May Violate the Constitutional Rights of Defendants and Other Parties to a Case

  • Continuing education is also needed for the judiciary and court practitioners on evolving modes of electronic communication.

Recommendations

  • Undertake fundamental research on how the exploding volume of electronic data could affect the protection of rights.
  • Develop methods to better assess the effect on the judicial process of jurors’ “outside research” during trials.
  • Identify approaches both to limit juror use of mobile devices to do “outside research” during trials and to educate jurors on this issue.
  • Develop methods to monitor juror and defendant social media activity, given concerns about the use of social media to influence judicial processes.