The National Law Review recently published an article about Jurors and Social Media, written by Carolyn M. Wendel of Barnes & Thornburg LLP:
It is estimated that in 2011, 64 percent of U.S. Internet users utilize social networks—Facebook, Twitter, MySpace, LinkedIn, and the like—on a regular basis, amounting to nearly 148 million people. In addition, with the expansion of the smartphone market to the general populace from more limited business usage, people can access their social networks virtually anytime and anywhere, including the courtroom. Such access creates a host of problems and recent years have seen a dramatic increase in the number of mistrials and overturned verdicts as a result of jurors’ use of social networking and other Internet sites.
Jurors sharing too much information.
Until recently, what went on behind the closed doors of the jury room remained largely a secret. For better or worse, the ability of jurors to instantly share thoughts and observations via blogs and social networks has offered a glimpse into the decision making process. While these instances are often used as grounds for an appeal, they account for a very small portion of the cases that are actually overturned.
The Illinois Appellate Court recently upheld an award of $4.75 million to the widow of a blind man killed by a Metra commuter train despite the fact that a juror was blogging about the case throughout the trial. Eskew v. Burlington Northern & Santa Fe Ry. Co., 2011 IL App. (1st) 093450. The defense argued the verdict must be overturned because the juror’s blog entries showed she had discussed the case with her husband, the jurors had discussed the case among themselves prior to deliberations, and, before all the evidence was in, one juror had stated, “All that’s left now is deciding how much.” The Court, however, noted that the blog entries showed the other jurors had chastised the juror who made the statement, were generally keeping an open mind, and had been offered no outside information that would influence their decision making process. The Court upheld the verdict, concluding, “The blog entries on which the defendants rely do not indicate that premature deliberations resulted in a jury that was biased when it commenced its deliberations or that the jury’s actual deliberations and verdict were affected by any discussions during trial. In fact, the entries indicate just the opposite.”
Generally, allegations involving jurors’ texts, tweets, or blogs do not necessitate declaring a mistrial or vacating a verdict. In a few extreme cases—such as where jurors posted pictures of a murder weapon, blogged about fellow jurors by name, or hosted a chat room where people could ask questions about the case—the courts have taken action. Overall, however, relatively few cases have been overturned because of jurors sharing general thoughts or experiences via posts and blogs.
Jurors seeking out impermissible input and information.
Seemingly more prevalent, and responsible for the majority of mistrials and overturned verdicts, is the situation where jurors impermissibly access the Internet to bring outside information into the jury room. In 2009 a federal judge in Florida was forced to declare a mistrial eight weeks into a drug trial after learning that jurors were using Internet search engines, Wikipedia, and other Internet sites to research issues associated with the case. Other cases show that jurors have conducted Internet searches of defendants, researched sentencing guidelines, and looked up the social networking profiles of alleged victims. In one extreme case, a juror in England posted key facts from the case and asked her Facebook friends to vote on whether the defendant was guilty or innocent. More often than not, where jurors have conducted their own research or solicited outside opinions, judges have been forced to declare mistrials or overturn verdicts.
How courts are responding.
Courts across the country continue to struggle with how to curtail jurors’ use of the Internet and social networking sites. Some courts have banned jurors from using cell phones or similar electronic devices in the courtroom and jury room. Other courts are warning jurors that violations could lead to jurors being held in contempt. At this point, however, the majority of courts addressing the issue are focusing on updating their jury instructions to emphasize the impermissible uses of the Internet and social networking sites.
In 2010, a committee of the Judicial Conference of the United States endorsed a set of model jury instructions for district judges aimed at deterring jurors from electronically communicating or researching about their case. The committee issued separate instructions to be given before trial and at the close of the case, specifying that during the course of the trial and deliberations, jurors “may not use any electronic device or media, such as a telephone, cell phone, smartphone, iPhone, Blackberry or computer, the Internet, any Internet service, or any text or instant messaging service; or any Internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case.”
A 2011 survey of federal and state jury instructions revealed a majority of circuits and states have such “modern” civil jury instructions that address the Internet, social media, or specific social networking sites by name. See Eric P. Robinson, Jury Instructions for the Modern Age: A 50-State Survey of Jury Instructions on Internet and Social Media, 1 Reynolds Courts & Media Law Journal 307 (2011). A minority of the circuits and states retain “archaic” instructions that either have no language addressing jurors’ access to media, or only reference newspapers, radio, and television.Only one circuit and 10 states offer an explanation in their civil instructions as to why jurors should refrain from using the Internet and social networking sites during a trial.
As an example, Indiana’s Model Civil Jury Instructions represent one of the most thorough set of instructions. The instructions start out by informing jurors that their decision must be based only on the evidence presented in the courtroom and the judge’s instructions. After listing general activities that are forbidden, the instructions specifically emphasize electronic communication and research:
[Y]ou must not communicate with anyone or post information about the case, or what you are doing in the case, by any means, including telephone, text messages, email, Internet chat rooms, blogs, or social websites, such as Facebook, MySpace, or Twitter.
You also must not Google or otherwise search for any information about the case, or the law that applies to the case, or the people involved in the case, including the parties, witnesses, lawyers, or Judges.
Finally, the instructions offer an extensive explanation of why it is important that jurors not discuss the case with anyone outside of the jury, visit any place discussed in the testimony, or access any media coverage about the case or conduct their own research. The concept of fairness is repeatedly emphasized. “These rules are designed to guarantee a fair trial” and jurors should not conduct independent research because to do so “would not be fair.” Jurors should not talk with anyone outside the jury because, “Only you have been found to be fair, and only you have promised to be fair – no one else has been so qualified.”
Not many instructions are as thorough in the conduct they prohibit or the rationale behind the rules as the Indiana instructions. However, more and more states will likely move in this direction as there is a growing belief that only if jurors are told specifically what they cannot do and, more importantly, why they cannot do it, will the increasing trend of juror violations be reversed.
© 2012 BARNES & THORNBURG LLP
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