Jurors and Social Media

"A jury of one's peers" may not include the jurors' Facebook friends

CHICAGO—October 2013—Jury duty and social media don't mix. Just ask Al Roker. When the affable "Today Show" weatherman was called for jury duty in 2009, he released pictures of fellow prospective jurors to his tens of thousands of followers in the Twitterverse. Roker, who was not seated for a trial, later tweeted that he was "just trying to share the experience of jury duty." Court administrators in Manhattan were not amused.
Al Roker's Twitter faux pas is not the only mishap that can occur when jurors and social media get together. Mistrials, appeals, and contempt-of-court citations have resulted from jurors' online activities. Jurors using social media could compromise defendants' Sixth Amendment right to fair trials, says Professor Nancy S. Marder, director of the Justice John Paul Stevens Jury Center at IIT Chicago-Kent College of Law.

alt"Unfortunately, jurors are accustomed to going online for information, so when they feel they don't have all the information they want in the courtroom, they may go online for it," says Marder. "This is a serious problem because jurors are supposed to base their decisions only on evidence that is presented and tested through cross-examination in the courtroom.

Marder says that the search for information can take many different forms, from looking up something on Google or Wikipedia to asking others using Twitter, Facebook or other social media. There have been occasions when jurors have attempted to "friend" parties in the case—including witnesses, attorneys and the judge.

As a result, jurors' social media accounts are coming under increasing scrutiny before, during and after trial. Duringvoir dire, attorneys and jury consultants often review tweets, blogs and other social media posts of the jury pool looking for signs of attitudes or preconceived notions about cases. Attorneys for Jodi Arias, who was convicted of murder in a high-profile case, recently asked the court to turn over Twitter account information of jurors selected for her new sentencing hearing in an effort to make sure they do not send or receive information about the case.

What can be done to make sure "a jury of one's peers" does not include jurors' online "friends" and associates?

The Judicial Conference Committee on Court Administration and Case Management last year issued model jury instructions for federal cases that includes language emphasizing prohibitions against jurors' use of social media—at the beginning and at the end of each trial. The instructions, which admonish jurors to decide the case solely on evidence presented in the courtroom, include specific language related to technology and social media:

"...[M]any of you use cell phones, Blackberries, the Internet and other tools of technology. You also must not talk to anyone 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, through any Internet chat room, or by way of any other social networking websites, including Facebook, My Space, LinkedIn, and YouTube..."

While Marder thinks the federal model jury instructions are good, she is concerned they do not go far enough in explaining the harm that can be caused if jurors violate the social media prohibition. "If they understand there are good reasons, and it's not just an irrational prohibition, they might be more likely to follow the instructions and avoid communicating and doing online research about the case," she says.

The Illinois Supreme Court Committee on Jury Instructions in Civil Cases revised the cautionary instruction so it now includes the following information for jurors: "It would be unfair to the parties and a violation of your oath to base your decision on information from outside this courtroom... Disobeying these instructions could cause a mistrial, meaning all of our efforts have been wasted and we would have to start over again with a new trial. If you violate these instructions you could be found in contempt of court."

Will these instructions be effective? Marder says it's too soon to tell. "We're still in the experimental phase, and we don't know yet what will emerge as the best practice."

This article was first published by IIT Chicago-Kent College of Law Newsbrief http://www.kentlaw.iit.edu/news/newsbrief/archives/marder-october-2013?u....


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