Tsarnaev’s appeal: do impartial jurors exist in the age of social media?


Djokar Tsarnaev.

The Supreme Court of the United States heard the plea October 13, 2021, in the case of Dzokhar Tsarnaev, the only surviving bomber of the Boston Marathon. While a large part of media coverage focused on whether the court will maintain the death penalty For Tsarnaev, the case also presents a fundamental question for this time: is it possible to find impartial citizens to sit on a jury in high-profile cases in the age of ubiquitous social media?

This aspect of the case focuses on “see say“, Which uses a French term which roughly translates as” telling the truth “. The voir dire takes place before the trial begins, when lawyers or the judge, depending on the jurisdiction, question potential jurors to determine whether they harbor any bias or prejudice against either party.

Tsarnaev has been charged with 30 counts related to the bombing of the marathon. The case had received wide attention, including online commentary on the accused and photos of him carry 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, if 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.

‘Not enough’

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 Court of Appeal of the First Circuit found fault with the judge, asserting that it is not enough to ask jurors “only if they have read something that might influence their opinion” is not enough “, because that question alone does not provide” what they have learned, where applicable ”. During the argument before the Supreme Court, Judge Sonia Sotomayor noted that “There were a lot of different ads here. “

Now it’s up to the Supreme Court to decide who was right.

Since this appeal concerns only the death sentence, 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 be given a certain flexibility and autonomy in how they conduct the voir dire. Others want the Supreme Court to step in and explain exactly how the voir dire is to be conducted.

Proponents of the latter approach point out that Tsarnaev risked a death sentence and made four requests to change location to move the case from Boston because, according to his lawyers, it would be impossible to have impartial jurors in the area. Like a specialist in criminal law and juries, I believe it could be argued forcefully that any trial judge in this situation should take additional steps to uncover the bias of prospective 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 apprehensions, courts across the country are increasingly questioning jurors about topics like social media and their internet usage.

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 they were told not to discuss the matter with anyone and to avoid radio, television and newspapers. If the case involved the death penalty, jurors could be held captive.

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 opinion of the court of appeal referred juror # 138, who had a routine conversation about the affair 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, often the information is pushed to the juror or appears in their news feed.

Dealing with the connected juror

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 at see say 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, the courts impose penalties on jurors who are unable to follow the rules for seeking information or discussing the case.

These penalties include detaining jurors for contempt of court, taking their devices or imposing forcible confinement when jurors are placed in hotels. away from family and devices. The common theme of all sentences is that once imposed, they make citizens less inclined to want to serve as jurors.

Question time

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 appropriate flow of information to jurors is to to allow them to ask questions during the trial.

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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 one, the jury adapted and survived. So, I think it’s highly likely that the jury will weather the storm of the digital age.The conversation

By Thaddeus Hoffmeister, professor of law, University of Dayton

This article is republished from The conversation under a Creative Commons license. Read it original article.

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