Judges have used various types of jury instructions to keep jurors away from social media and the Internet, both inside and outside the courtroom. Their goal, of course, is to keep jurors away from outside information and research—materials that jurors are not supposed to consult, but on which they may surreptitiously base their findings.
Still, even despite such instructions, some cases have demonstrated that jurors may nonetheless feel tempted to do Google searches on a defendant or on witnesses, or to post a comment on Facebook about the trial in which they are participating.
In this column, I will describe the new model jury instructions relating to this important issue, and assess whether those instructions will likely be effective in restraining juror behavior.
The New Model Jury Instructions Regarding the Use of Electronic Technology by Jurors
Just last week, on August 21, the federal judiciary published updated model jury instructions, via the Judicial Conference Committee on Court Administration and Case Management (CACM), regarding jurors’ use of electronic technology to conduct research on, or communicate about, a case.
Among the social media “dos” and “don’ts” for jurors are the following: “You may not communicate with anyone about the case on your cell phone, through e-mail, BlackBerry, iPhone, text messaging, or on Twitter, through any blog or website, including Facebook, Google+, My Space, LinkedIn, or YouTube.”
Current Judicial Experience Regarding Jurors’ Use of Social Media: A Survey and Its Results
The CACM is a standing committee of the Judicial Conference of the United States. The Judicial Conference serves as the principal policymaking body concerned with the administration of the U.S. federal courts.
The CACM issued the new model jury instructions in response to a national survey of federal trial judges by the Federal Judicial Center. The survey led to a report, Jurors’ Use of Social Media During Trials and Deliberations, which was prepared at the request of the CACM.
The committee’s Chair, U.S. District Judge for the District of Kansas Julie A. Robinson, explained in a written statement that “[t]he overwhelming majority of judges take steps to warn jurors not to use social media during trial, but the judges surveyed said additional steps should be taken[.]”
The Federal Judicial Center developed and administered a brief survey for federal district court judges in order to assess the frequency with which jurors use social media to communicate about cases during trial and/or deliberations. The survey also sought to identify strategies that judges have found to be effective in curbing social-media communications and Internet use.
The report presented the survey’s findings. Surprisingly, reported juror use of social media during a trial is currently quite low. Of the 508 judges who responded to the survey, only 30 (6%) reported any instances of jurors using social media during trial or deliberations. (News reports and blog posts insinuate, however, that juror use of social media is much more frequent than the survey found.)
The report also noted that, of the 30 judges who did detect juror use of social media during trials and deliberations, the majority of those 30 (28 judges, or 93%) had seen social-media use by a juror in only one or two trials.
Moreover, instances of social-media use by jurors were more commonly reported during trials (23 judges reported at least one instance) than during jury deliberations (12 judges reported at least one instance). Jurors also appear more tempted to use social media during criminal trials (22 judges said they had experience of such social media use) as compared with civil trials.
While these statistics are useful, they likely do not reflect the true incidence of juror reliance on social media, as the 500-plus judges who participated in the survey acknowledged, for social-media use by jurors—especially in their own homes—may be difficult or impossible to detect.
The study also revealed that many judges are cautioning jurors about the prohibitions on the use of social media—through their jury instructions. Ninety-four percent of the respondent judges also use some form of jury sanction if a juror breaks the social-media rules—whether those rules are the judge’s own, or are those set forth in the existing CACM model instructions. (There are various models out there from which judges can choose.)
Judges have also noted that they take extra steps to caution jurors regarding their use of the Internet, and especially of social media. These techniques include, among other measures, (1) explaining the rationale behind the social-media ban; (2) instructing jurors on the ban at multiple points throughout the trial; and (3) confiscating phones and other electronic devices at the start of each day of trial.
The Upshot of the Juror Social-Media Study
In sum, the juror social-media study revealed that the problem of jurors’ using social media may not be a large one if—and this is a big if—jurors are honest about their social media use while at home. Googling the trial on which one is sitting as a juror is likely a huge temptation for many.
The study concluded as follows: “The judges recommended that jurors frequently be reminded about the prohibition on social media before the trial, at the close of a case, at the end of each day before jurors return home, and other times, as appropriate. Jurors should be told why refraining from use of social media promotes a fair trial.”
The new guidelines also advise that jurors should be advised of the financial and legal consequences of violations of the social-media rules during trial, including declarations of mistrials, and wasted time for parties, counsel, and other jurors.
Finally, along with the social-media guidelines, trial judges are provided with a poster stressing the importance of jurors’ making decisions based solely on information presented in the courtroom. The poster is meant to be displayed in the jury deliberation room, or other areas where jurors congregate.
The New Revisions to the Model Jury Instructions Regarding the Ban on Jurors’ Use of Social Media
Based on the report, CACM has revised its previous model instructions. In a new, updated two-page set of jury instructions, judges are advised to use the following statement in instructing jurors:
I know that many of you use cell phones, BlackBerrys, the Internet and other tools of technology. You also must not talk to anyone at any time about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone, through e-mail, 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 CACR study described real-life juror social-media use as follows: “[It] most often took the form of posts about the progress of the case or the juror’s service in general.”
It’s possible in such cases that a clueless juror might misunderstand the scope of the social-media instructions and make such posts innocently. However, the study also reported that “[t]here were several instances of jurors attempting to contact participants in the case via social media”—obviously a very grave transgression on the juror’s part, and one that seems motivated by something other than cluelessness. Such jurors seem to want to do the lawyers’ jobs, and investigate the case, finding and interviewing witnesses themselves.
Consider, for instance, a case tried in Florida earlier this year, where a 29-year-old juror sent a Facebook friend request to a defendant during a trial, then boasted about being dismissed from jury service. The juror is now himself in hot water—with a jail sentence for contempt of court.
In the U.K. last year, a juror who contacted a defendant via Facebook was jailed for eight months for contempt of court. Because other defendants were still on trial at the time of the contact, the judge discharged the jury and the drug case, which cost 6 million British pounds, collapsed. This was the first incident of its kind in Britain, with respect to juror communication via social media
The new model instructions also caution jurors not to use the Internet or electronic communications to conduct research on a case. On this point, they state, “You may not use these electronic means to investigate or communicate about the case because it is important that you decide this case based solely on the evidence presented in this courtroom. Information on the Internet or available through social media might be wrong, incomplete, or inaccurate.”
Notably, in Florida in 2009, a U.S. federal judge declared a mistrial in a federal drug case after learning that nine jurors had conducted improper Internet searches about the case. At the end of an eight-week trial, one juror contacted the judge to say that another juror had admitted to searching on the Web to find out more about the defendant. The judge subsequently judge found that eight other jurors (for a total of 9 out of 12!) had also conducted Internet research, ranging from conducting Google searches on the lawyers and defendant, to reading news articles about the trial online, and even checking definitions of key terms via Wikipedia.
An Interesting Aspect of the New Juror Social-Media Instructions: Instructing Jurors to Turn in Fellow Jurors Who Flout the Instructions
The most striking new component of the new model jury instructions relates to jurors policing one another. A judge is supposed to tell a jury panel, “I expect you will inform me as soon as you become aware of another juror’s violation of these instructions.”
This new instruction, directing jurors to turn in other jurors who violate the social-media ban, arises from judges’ actual experience. The CACM report indicated that a peer informant on the jury is the means by which many judges have learned about social media use.
As I’ve described above, most of the changes to the juror social-media rules focus on judges’ reinforcement of the ban on the Internet and social media. As I have also noted in a prior column, one federal judge has made jurors take a personal “No Internet” pledge—as a way of holding them personally accountable. And many commentators have applauded this move, as it personalizes each juror’s commitment, rendering it that individual’s particular promise, to be honored by him or her alone.
The new jury social-media instructions also ask us all to do more than police ourselves. We are asked to also police one another—and to turn in fellow jurors if they make a misstep and resort to social-media use.
Granted, jurors have always been expected to report misconduct by fellow jurors during deliberations. But are we, as citizens, going to be effective gatekeepers for our colleagues in the jury room? Is it our job to figure out who is going on Facebook? Will the instructions create a situation where we all cautiously try to spy on one another, and catch fellow jurors behaving badly?
At this point, it’s too early to tell—with only 30 reported instances, so far, of jurors going astray and accessing social media, contrary to the rules. In 28 of these 30 instances, moreover, the offending jurors were then turned in by their fellow jurors.
Even though fellow jurors have already played a key role, in some cases, in enforcing the social-media ban, do we really want to play the role of being of fellow jurors’ keepers?
I doubt, moreover, that our fellow jurors will serve as the best deterrent to banning the use of social media. The personal-contract/pledge approach seems more honest and straightforward to me.
In this column, I’ve mentioned a number of possible solutions to the juror social-media issue. But some experts believe that there is no real solution. Jurors, say those who take this rather extreme position, simply will not be deterred from using Google to search on the Internet, or even tweeting about their experiences. These habits, some say, are so deeply ingrained, by now, that it is tough for many to remain unplugged and off the grid for the duration of an entire trial.
For now, I think this extreme position is too pessimistic. But as time goes on, assuming that social media remain ubiquitous, this extreme position may come to be the norm. If it does, it will fundamentally change the character of our justice system—and may even cause some litigants or defendants to opt for a bench (judge-only) trial, where damning Internet evidence can be excluded.