It was simply a matter of time before the courts caught up with the rap. Inappropriate use of social media by jurors, whether to disseminate or gather trial information, has been a recent source of controversy within the legal community.
A juror communicating with others about a case makes that juror susceptible to outside opinions and influence, not to mention potentially compromising key elements of the case. Furthermore, a juror may obtain inaccurate information which taints their judgment. The concept of “due process,” which is central to our judicial system, only works effectively after judges and attorneys have had a chance to thoroughly litigate the evidence offered before presenting it to a jury, and that juror limits their opinion to the evidence presented in court.
The Federal Judicial Conference Committee recently revised the Model Jury Instructions to expand and elaborate on the ban of a juror’s use of social media to communicate about a case while that case is still ongoing.
“You may not communicate with anyone about the case on your cell phone, through email, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, including Facebook, Google+, My Space, LinkedIn, or YouTube. You may not use any similar technology of social media, even if I have not specifically mentioned it here.”
The majority of judges follow the model jury instructions. Those that do not directly utilize the model jury instructions still clearly prohibit the use of social media in their instructions.
Jurors are instructed that they must decide a case based solely on the evidence presented in the courtroom. There are strict prohibitions against communicating with others about the case prior to deliberations or seeking information outside of the courtroom. The emergence of social media websites and the wide-spread use of smart phones have made it easier for jurors to communicate with non-jurors about a case.
Despite the ease of information sharing, thus far, it does not appear that a juror’s use of social media to communicate information about a case is a common occurrence. Based on a sample of 508 judges, only 30 (or 6%) reported an instance of a juror using social media inappropriately. The types of communication reported have included a juror “friending” or attempting to “friend” a participant in the case; or a juror communicating directly with a participant in the case. Judges’ responses have varied depending on the circumstances, mainly, the extent of the communication. A small percentage have declared mistrials, most have removed the juror or warned the juror. In one instance, a juror was held in contempt of court; in another, a juror was fined by the court.
It is important to note the difficulty in monitoring a juror’s actions. Over 45% of judges sampled indicated that they have no way of knowing the success of their instructions. The Model Jury Instructions rely in-part on other jurors to report inappropriate communication of their fellow juror. This presents practical difficulties as a juror’s social media activity may be private and an attorney, judge or fellow juror will likely be outside of their social network.
Although the free flow of information raises the ease in which a juror may inappropriately communicate with others about a case, thus far, it has not raised the likelihood of such an occurrence. For the most part, jurors still abide by jury instructions. Nevertheless, judges can further safeguard a defendant’s right to a fair trial by taking preventive actions, such as: following the model jury instructions; explaining to jurors, in plain language, the reasons for the social media ban; reminding jurors of the social media ban both before the trial and before the deliberations; alerting the jury about the consequences, both personally and for the case, for not abiding by the ban; and, if necessary, confiscating electronic devices during deliberations and/or before the start of each day of trial.
Moreover, if a judge learns or even suspects of inappropriate communications via social media by one of the jurors, the judge must immediately investigate the communication and ascertain the damage to ensure a fair trail. Finally, attorneys must also be aware of the social media activity of jurors to a reasonable extent.
 “Juror’s Use of Social Media During Trials and Deliberations: A Report to the Judicial Conference Committee on Court Administration and Case Management.” Meghan Dunn, Federal Judicial Center. November 22, 2011. http://www.fjc.gov/public/pdf.nsf/lookup/dunnjuror.pdf/$file/dunnjuror.pdf