Strategies to Mitigate the Impact of Electronic Communication and Electronic Devices on the Right to a Fair Trial

by Justin C. Dawson, Duren Banks, Michael J. D. Vermeer, Shoshana R. Shelton

Download Free Electronic Document

FormatFile SizeNotes
PDF file 0.4 MB

Use Adobe Acrobat Reader version 10 or higher for the best experience.

Research Questions

  1. How can electronic communication impact the right to a fair trial?
  2. How can witnesses be protected from intimidation?
  3. How can jurors be prevented from compromising their independence?

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.

The research reported here was conducted by the Justice Policy Program within RAND Justice, Infrastructure, and Environment.

This report is part of the RAND Corporation research report series. RAND reports present research findings and objective analysis that address the challenges facing the public and private sectors. All RAND reports undergo rigorous peer review to ensure high standards for research quality and objectivity.

Permission is given to duplicate this electronic document for personal use only, as long as it is unaltered and complete. Copies may not be duplicated for commercial purposes. Unauthorized posting of RAND PDFs to a non-RAND Web site is prohibited. RAND PDFs are protected under copyright law. For information on reprint and linking permissions, please visit the RAND Permissions page.

The RAND Corporation is a nonprofit institution that helps improve policy and decisionmaking through research and analysis. RAND's publications do not necessarily reflect the opinions of its research clients and sponsors.