After hearing all of the frighteningly careless stories of social media use by jurors, it is nice to finally read some encouraging news on the topic. A recently published article in the Duke Law and Technology Review titled “More From the #Jury Box: The Latest on Juries and Social Media,” has revealed that juror instructions on the use of social media appear to be highly effective in deterring juror use of social media during trial. The authors’ conclusions are based on the results of a survey of jurors in federal and state courts on their use of social media during their jury service. The surveys began in 2011 and have continued through the publication of this article in order to get a complete picture of juror attitudes toward social media and determine whether the landscape is changing. The results of the survey strongly supported the notion that jury instructions are the most effective tool in mitigating the risk of juror misconduct through social media. This is certainly a step in the right direction, as the surveys have helped to identify a potential solution to this recent problem that the rise of social media use has ushered in.
The article points out that “[t]he impartial jury has survived the telephone, the radio, the automobile, and the television. There is no reason why it cannot survive Facebook and Twitter, too.” Though jurors have always been instructed to refrain from discussing the trial with anyone, practically speaking there was nothing to stop a juror from going home and calling everyone in their phonebook to chat with them about the trial. Tweeting or posting on Facebook about the trial would not only likely reach a much wider audience, but this misconduct can also be more easily detected due to the lax privacy settings of many social media users. Social media has also simply given jurors additional opportunities to disobey the law, particularly when many are accustomed to alerting all of cyberspace to their every move and thought.
The good news is that jurors appear to respond well to instructions—the survey results indicated that those who were tempted to use social media during trial but refrained from doing so, acted accordingly based on admonishments from the court to abstain from using social media. Specifically, the authors of the article offer three suggestions regarding when and how to administer these instructions to the jury, including early and often, as well as recommending that relevant content be included in the instructions and examples of prohibited activities be provided.
What I find odd about these suggestions is that they indicate that jurors are not willfully disobeying the court’s instructions, but instead are simply forgetting—or worse, not knowing—that they are not supposed to be tweeting or posting about the trial. I had always assumed that jurors who participated in these prohibited activities knew that their social media use was unlawful and were either maliciously attempting to sabotage the trial, or, more likely, merely hoping or assuming they wouldn’t be caught. What the reality of the situation is, according to this survey, might be more troubling to me than what I had initially assumed, because it points to a disturbing level of ignorance about the legal system and the importance of their role as a jury member.
Therefore, it seems that until jurors intuitively assume that they should refrain from using social media during trial, specific and frequent instructions on the matter is the best solution to prevent this misconduct.