Still No Cure for the Malady of Jurors’ Social Media Use During Trials and Deliberations

Having recognized the challenges regarding jurors’ use of social media in the courtroom, the Committee on Court Administration and Case Management requested that the Federal Judicial Center (“FJC”) survey district court judges to identify effective mechanisms to curtail this growing problem. In response, the FJC queried 952 district judges and issued Jurors’ Use of Media During Trials and Deliberations, which demonstrates that despite the various strategies devised, it is virtually impossible to prevent jurors’ use of social media and is equally difficult to detect each and every impropriety. This issue is not novel; in fact, this blog has previously reported on instances where jurors’ use of social media had a significant impact on a proceeding as well as suggestions on how to avoid such pitfalls.

The General Response

Of the 508 judges who responded to the electronic questionnaire at issue, only 30 judges or 6% reported detecting jurors’ use of social media. This discovery occurred more often during trials rather than deliberations and in criminal trials than civil trials. The social media at issue in these instances were Facebook, Google, instant messaging (“IM”) services, Twitter, Internet chat rooms, Internet bulletin boards, and MySpace.

Nature of the Use

Among the jurists who identified how jurors used social media during trial and deliberations, the most common was through jurors’ “friending” or attempting to “friend” participants in the case (meaning witnesses, parties, attorneys or judges) as well as communicating or attempting to communicate directly with participants. In addition, the judges discovered that jurors used social media to reveal parts of the deliberative process; provide information about other jurors; conduct research; generally share information about the case by, for example, revealing the likely verdict; allow someone else to hear live testimony; and conduct personal business.

Challenges with and Consequences of Detection

Of the 28 judges who indicated how they learned of a juror’s improper use of social media, the most common sources of that discovery were fellow jurors, attorneys or information learned in post-trial motions or interviews. Judges also learned of the malfeasance through court personnel or a party. Most notable is the fact that in only two instances did judges report personally observing jurors utilizing electronic devices in the courtroom. Upon learning of such improprieties, those judges have removed the juror, cautioned the juror about removal, declared a mistrial, held the juror in contempt, fined the juror, questioned the juror and/or held a hearing to determine the scope and nature of information shared.

Strategies for Preventing Jurors’ Use of Social Media Solutions

Fortunately, the majority of the judges who responded to the questionnaire have taken measures to prevent jurors from using social media during trial and/or deliberations, though surprisingly, 30 judges (6%) admitted not specifically addressing the issue with jurors. To prevent use of this media, judges have employed model jury instructions; reminded jurors during voir dire and through various points in the trial of the prohibition and the rationale behind it; confiscated phones and electronic devices during deliberation and/or at the start of each day of trial; articulated potential consequences of disobeying instructions; and/or required jurors to sign a certifications or statements promising not to use social media while serving on a jury or that they adhered to the instructions.

How do we know what, if any of those procedures are effective? The answer is we don’t. As conceded by almost half the jurists who responded to questions about preventive measures and whether they were effective, they simply do not know whether the steps taken were successful. In the meantime, while recognizing there is no panacea, judges, attorneys and fellow jurors must police the use of social media by jurors during trials and deliberations.

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