More From the #Jury Box: The Latest on Juries and Social Media

The rampant use of social media on the part of jurors presents an on-going challenge to the impartiality of the jury system. A recent article entitled “More From The #Jury Box“ by U.S. District Court Judge Amy J. St. Eve, Illinois Judge Charles P. Burns, and attorney Michael A. Zuckerman published in the Duke Law & Technology Review reports their findings from an informal survey of 583 jurors in federal and state court regarding the use of social media during their service as jurors.

Making the point that the jury system has “survived the telephone, the radio, the automobile, and the television” and view the era of social media as just one more obstacle to impartiality, the authors call on judges and lawyers to be both “proactive and vigilant” to avoid misconduct by jurors. The authors cite the countless difficult issues raised by social media, such as researching jurors on social media, judges’ social media profiles, social media activity and personal jurisdiction, and public awareness of judicial proceedings. They also analyze a number of recent cases in which social media has had an impact on the jury and the potential to “undermine the fundamental fairness of jury trials.”

When analyzing the informal post-trial surveys of the jurors, they found a small percentage (“8.06%”) were “tempted” to communicate about the case in social media. The majority of the jurors mentioned the judge or the judge’s instruction as the reason they did not communicate. The authors further state that jurors from both state and federal courts based their decision not to communicate on social media on “their oath, respect for the judicial process, and integrity.” And like the “tempted” jurors, the jurors who were not tempted to communicate “overwhelmingly related to the court’s social-media instruction,” while others were concerned that such communications would “threaten their impartiality.” Further, jurors mentioned the effectiveness of repetitive instructions by the judge not to use social media to communicate about the case.

The authors conclude with a suggested approach to avoiding juror misconduct through the use of social media:

  • Social media instruction is necessary and may be enough by itself to prevent juror use of social media to communicate about the case.
  • Jury Instructions must “explicitly admonish jurors against using Facebook, Twitter.”, etc.
  • Instruction to juries on social media must take place “early and often”—taking place during the judge’s opening remarks to the jury, the judge’s closing instructions before deliberations, and daily at multi-day trials.
  • Jurors must be given an explanation as to why the restrictions exist—to preserve the fairness of the jury process.

The authors close with the thought that reminding jurors of their oath and appealing to “civic pride, respect, and democratic ideals” is far more effective than the threat of contempt charges.

Amy St. Eve et al., More From the #Jury Box: The Latest on Juries and Social Media, 12 Duke Law & Technology Review 64-91 (2014)

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