Judicial Notebook

In the age of iPads, text messaging and ubiquitous Internet connectivity, Americans depend on state-of-the-art technology to get updates on the latest news, to check in with family and friends, and to entertain themselves. But what happens when technologically savvy jurors get to the courtroom and find themselves cut off from their gadget-laden world, forced to passively absorb trial testimony? Every day in U.S. courts, jurors fall asleep, become frustrated by trial delays, seek out Google or Facebook on their cell phones, or daydream when they should be paying attention to trial testimony. The consequences of such juror misconduct are far-reaching.

On June 25, 2009, the Ohio Court of Appeals overturned the murder conviction of Arif Majid based on extensive evidence that at least one of his jurors slept through portions of the trial, including the testimony of a key eyewitness. Judges in Colorado, Florida, New Jersey and Maryland have also declared mistrials in cases where jurors took it upon themselves to research case information on their cell phones, actions contrary to judicial instructions forbidding jurors from looking at case information not presented in court. In an extreme case of juror misconduct, an Oregon circuit court charged a juror with contempt when he fled the courthouse during the lunch break. When questioned about why he skipped out, the juror responded that he was “extremely bored” and could no longer stand being in court. How can the legal system and social scientists address such juror misconduct?

Psycholegal researchers can glean some insights from studies in school psychology. In many ways, jurors are like students — both absorb a large quantity of information and then apply that information. Yet studies show that students can only be passive recipients of information for so long before becoming inattentive. School psychologists conceptualize student boredom in terms of vigilance decrement, or a drop-off in students’ ability to pay attention to a task. Such research shows that student performance is typically high for the first 15 minutes of a task, but then sharply declines. In the classroom, students in traditional lectures often show signs of vigilance decrement, such as high levels of frustration and boredom. To combat these issues, school psychologists note that frequent breaks and increased student participation improve test performance. A goal of psycholegal research should be to apply such findings to the courtroom.

Relying on psychological research, many courts have already initiated reforms that give jurors a more active role in the trial process. For example, many courts now give jurors permission to take notes, to ask questions during the trial or to discuss evidence while the trial is in progress. Research is ongoing about the efficacy of these reforms, but such active information processing should reduce juror boredom and fatigue. Active processing may also allow jurors to seek legal information from court officers rather than relying on their cell phones for such research.

The methods courts use to prevent juror boredom and frustration vary across jurisdictions, with some judges making adjustments that they believe are necessary. Iowa Judge Mark Bennett, for example, has attempted to combat juror frustration by ruling on the admissibility of evidence before the trial day begins. In addition, Judge Bennett rarely allows sidebars when jurors are present, preferring to give a short ruling to the jury instead. Later, he gives a full explanation for the ruling to the attorneys. As Judge Bennett has said, “I like talking with lawyers [in sidebars]. It’s fun, but not while wasting 12 people’s time.” Judge Bennett has thus attempted to address a common juror complaint: They have other things they could be doing.

As judicial reforms begin to deal with our technology- and entertainment-driven culture, more research is needed to fully understand juror attention. Only then can we ensure that such reforms benefit the legal system. The conundrum of juror attention is not simple, but based on what we know about vigilance decrement, reducing juror frustration and increasing their active processing are important steps in improving the quality of jury decision-making.