State officials are drafting an instruction aimed at keeping the World Wide Web out of the jury box.

No Wisconsin proceedings have been reported compromised by jurors’ growing use of text messaging and social networking Web sites, such as Facebook or Twitter, during trial, judges and trial attorneys said.

But state judges and trial lawyers have heard stories from around the country where jurors have posted online or sent text messages about trials. Such stories, and a growing awareness of incidents nationwide, have led state jurists to examine the issue in the hopes of preventing potential problems here, said Milwaukee County Circuit Chief Judge Jeffrey A. Kremers, who also sits on a statewide criminal jury instruction committee.

“We’re working on drafting an instruction that would incorporate this issue and warn jurors not only not to do it, but also give some information on why they shouldn’t do it,” Kremers said. 
Some judges have already started adapting their instructions to address everything from searches on Google Earth to Twitter updates noting jurors’ trial experiences.

“I know that judges are already doing it. I gave a version of one a couple of weeks ago in jury orientation. Judges are doing it on a case by case basis,” Kremers said.

Work on a technology-inclusive jury instruction began this spring and could be done by May, but some wonder if an instruction will be enough.

“I don’t know that there’s a way to stop particular personalities from doing it, other than to sit them with Big Brother,” said Paul Scoptur, a Milwaukee trial attorney and member of the American Society of Trial Consultants.

None of Scoptur’s cases have been affected by text messages or jurors posting online.

But, he said, he has a strong feeling that jurors are turning to the Internet more and more.

“There’s always a spike on my Web site on the first day of trial. There’s no doubt in my mind that it’s jurors or prospective jurors or dismissed jurors checking me out,” Scoptur said. “It’s human curiosity. A judge can tell them all day not to, but they’re going to do it. It’s like telling your kid not to do something. The real question is: what’s the harm?” That’s a concept Waukesha County Circuit Chief Judge J. Mac Davis has tried to convey to jurors in his court.

Problems with jurors seeking outside source material or wanting to talk about their trial experiences are not new, Davis said, which is why he typically goes beyond the traditional instruction advising jurors not to discuss cases or do their own research.

Davis explains why talking about a case or doing outside research is unfair. He also explains potential consequences for crossing those lines.

“I’m more of the opinion that if you give people a reason, they’re more inclined to be fair,” Davis said. “I guess I’m trying to appeal to their senses.”

Kremers agreed. “I think if we tell them why it’s wrong, why it’s not fair to do it, we would have better compliance.”

However, Kremers said, an instruction could help jurors navigate the gray areas of when technology could compromise a case and when it can be used as a tool of everyday life.

For instance, knowing the difference between texting your wife to say you can’t pick up the kids because you have jury duty, versus exposing yourself to another person’s potential bias on Facebook.  

“The danger is if it taints the deliberation, or if it taints the integrity of the case itself,” Scoptur said. “A lot of times it’s harmless error. Does that make it right? Absolutely not. But the real danger is the integrity of the trial.” 

Unfortunately, Scoptur said, court officials might not know the full extent of that danger. “I don’t know how prevalent it is,” he said. “One person gets caught or two people get caught.

But how many people are participating in the process and not getting caught? I think it’s bigger than an isolated issue. How big an issue? I don’t think we’ll ever know.”

But, Scoptur said, “It’s a problem. It’s going to be a problem. And it’s going to be the topic of more discussion.”