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

• NCJ Number: 251632
• Date Published: January 2018
• Author(s): Justin C. Dawson, Duren Banks, Michael J. D. Vermeer, Shoshana R. Shelton
• Agencies: NIJ-Sponsored
• Publication Series: NIJ Identifying the Highest Priority Criminal Justice Needs
• Award: Identifying the Highest Priority Criminal Justice Technology Needs

Annotation

This report covers the proceedings and recommendations of a panel of judges, lawyers, educators, and other relevant experts convened to recommend ways to protect trial witnesses from intimidation and jurors from compromising their independence due to the capabilities of modern electronic devices and electronic communications.

Abstract

The panel was convened by the National Institute of Justice’s Priority Criminal Justice Needs Initiative due to the threat to fair trials posed by the capabilities and proliferation of modern electronic communication facilitated by electronic devices. 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/her on the Internet. Such capabilities can be used to identify a juror and attempt to influence his/her thoughts about trial issues. Current court practices and procedures are not sufficient to counter these potential efforts to undermine a fair trial. The panel developed four recommendations for addressing these potential threats to the right to a fair trial. First, conduct research on how the expanding volume of electronic data could affect the protection of various rights. Second, develop methods that better assess the effect on trial outcomes of jurors’ “outside research” during trials. Third, develop procedures that both limit juror use of mobile devices to do “outside research” during trials and educate jurors about restricting their access to case-related information to what is presented in court proceedings. Fourth, develop methods for monitoring juror and defendant social-media activity due to efforts on social media to influence judicial processes.