The United States Supreme Court heard oral argument on October 13, 2021 in the case of Dzokhar Tsarnaev, the sole survivor of the Boston Marathon. While much of the media coverage has focused on whether the court will uphold the death penalty for Tsarnaev, the case also poses a fundamental question for this time: is it possible to find citizens impartial to sit on a jury in high-profile cases in an era of ubiquitous social media?
This aspect of the case focuses on the âvoir direâ process, which uses a French term that roughly translates to âtell the truthâ. The voir dire takes place before the trial begins, when lawyers or the judge, depending on the jurisdiction, question potential jurors to determine if they harbor any bias or prejudice against either party.
Tsarnaev has been charged with 30 counts relating to the bombing of the marathon. The case had received wide attention, including comments online about the accused and photos of him carrying a backpack full of bombs to the finish line. The voir dire in her case was extensive, lasting 21 days and involving 1,373 potential jurors, each of whom filled out a 28-page questionnaire.
At one point during the voir dire, Tsarnaev’s lawyer asked the judge to put a two-part question to the potential jurors. First, whether they had seen the media coverage of the case, and second, what they had seen in particular. The judge asked the first part of the question, but not the second.
Tsarnaev’s lawyers have appealed the death penalty, claiming in part that the trial judge should have asked what media coverage the jurors had seen or read about the case in order to ensure a fair jury.
The First Circuit Court of Appeals blamed the judge, saying asking jurors “only if they had read something that might influence their opinion” is not enough “because that question alone does not determine” that ” Did they, if any, learn? âDuring the argument before the Supreme Court, Judge Sonia Sotomayor noted thatâ there had been a lot of different advertisements here â.
Now it is up to the Supreme Court to decide who was right.
Since this appeal is only for the death penalty, Tsarnaev’s guilty verdict and life sentence without parole remain in effect.
The dilemma the Supreme Court faces is to what extent it wants the voir dire process to be normative. He could issue an opinion requiring lower courts to ask jurors more probing questions about their exposure to media accounts in high-profile cases.
Some believe that trial judges should have some flexibility and autonomy in the way they conduct the voir dire. Others want the Supreme Court to step in and clarify exactly how the voir dire is to be conducted.
Supporters of the latter approach point out that Tsarnaev risked a death sentence and made four requests to relocate to move the case from Boston because, according to his lawyers, it would be impossible to get impartial jurors in the area. As an expert in criminal law and jurors, I believe a strong argument could be made that any trial judge in this situation should take extra steps to uncover the bias of potential jurors.
Those on the other side believe that demanding more questions will unduly lengthen the voir dire process and invade the privacy of jurors. Despite these fears, courts across the country are increasingly questioning jurors on topics such as social media and their use of the internet.
Impossible to disconnect a juror
The question the Supreme Court faces here is part of a larger discussion of whether courts in the digital age can find objective jurors.
Finding impartial jurors in the pre-digital age, even in high-profile cases, wasn’t too difficult. Once chosen, jurors were to maintain this impartial status and were told not to discuss the case with anyone and to avoid radio, television and newspapers. If the case involved the death penalty, the jurors could be sequestered.
Today, that same approach will not work.
Few jurors can spend eight hours, let alone a whole week, without using their smartphone or social media. Many people share aspects of their lives with others in real time via social media, which is incompatible with jury service. In fact, being a juror makes their social media posts more interesting to others.
In Tsarnaev’s case, the appeal court opinion referred to juror No.138, who had an ongoing dialogue about the case on Facebook with his friends.
Jurors today also have a lot more information at their disposal. Where reports of a crime or the accused would have been difficult to discover or access before, they are now just a click away. This information does not disappear outside of the news cycle; it stays online and accessible. In fact, the information is often pushed to the juror or appears in their news feed.
Judges across the country are taking a variety of approaches to combat the negative influences of the digital age on the jury.
Lawyers and judges will ask questions of potential jurors. In addition, lawyers will investigate jurors to find out what they know about the case. This happens both in the courtroom during the voir dire and online, where lawyers look for the juror’s digital fingerprint to include social media posts. The question of how far to leverage during the voir dire is the main concern in Tsarnaev’s case.
Once chosen, jurors are urged to follow court instructions, but the allure of social media can be far too tempting. Thus, courts impose penalties on jurors who are unable to follow the rules for seeking information or discussing the case.
These penalties include contempt of jurors, taking their devices or imposing forcible confinement when jurors are placed in hotels away from their families and devices. The common theme of all sanctions is that once imposed they make citizens less inclined to want to serve as jurors.
Some legal experts believe that if jurors are given enough information about the case, they will be less likely to break court rules and go online to research information or discuss the case. One way to improve the proper flow of information to jurors is to allow them to ask questions during the trial.
Finally, there are calls to modify the jury instructions to suit modern times. Since jurors today are so receptive to learning information online, it is necessary to explain to them why the practices they regularly use are prohibited while on jury service.
The jury, throughout its nearly 400-year history in America, has witnessed many changes in society. Through each, the jury adapted and survived. So, I think it’s highly likely that the jury will weather the storm of the digital age.
Thaddeus Hoffmeister is Professor of Law at the University of Dayton.
This story first appeared on The Conversation, an independent source of information and perspectives from the academic and research community.