By Dr. Ken Broda Bahm:
The vast majority of jurors are conscientious and careful, and at least aim to be compliant with instructions. At the same time, there are a few examples in recent years that would seem to challenge that perception. For example, there is the widely reported story of the Miami mistrial in which fully nine of the twelve jurors admitted to using the internet to collect or share information. Or the UK juror who conducted on online poll asking her friends how she should vote in a child abduction and sexual assault case. Or the 2011 North Texas juror who Facebook “friended” the defendant during trial.
At this point, stories of the risks posed by social networks have successfully infiltrated the legal networks, and nearly all U.S. and state courts have adopted some form of instruction on the limits on jurors’ social media and internet use. And there is at least some research supporting the belief that these instructions work to a large extent. But a recent review of court practices across the country, by Florida Judge Antoinette Plogstedt (2013) and soon to be published in the Cleveland State Law Review, reveals that there is some spottiness to the instructions themselves. Nearly all will tell jurors to not communicate about the case, the parties, or the process via social media. Some, however, will communicate the reasons for that avoidance and others will not. Some will explicitly identify the main services to avoid – e.g., Google, Facebook, Twitter, and blogs – and others will not. Some will talk about the consequences of violating the instruction, like mistrial and sanctions, and others will not. Judge Plogstedt recommends a thorough and repeated instruction, and includes an example in the final appendix of her article, and also recommends adapting practices like juror note-taking, questions to witnesses, and predeliberation in order to address juror curiosity and need to be an active consumer without yielding to the temptation to violate their instructions. There are good reasons to believe that relatively rare situations of misconduct would be even more rare if the instructions were more specific and concrete. This post takes a look at Judge Plogstedt’s article and offers a checklist of the features every social media instruction should include.
The Research: Active Jurors and Inconsistent Instructions
There have been a number of articles on the phenomenon of the Googling, Tweeting, and status-updating juror, but Judge Plogstedt’s article is unique not only in its comprehensive scope – 65 pages – but also in its focus. Unlike many of the other pieces of commentary lamenting juror misconduct online, this article looks specifically at why the juror might be led into temptation. And it is not just the ever presence of social media or the fact that everyone has the internet in their pocket these days. It is the more basic fact that jurors expect to be active, not passive, audience members. They want to be hunters and not grazers, information wolves not information sheep. And the message of these instructions has to be: “In some ways you cannot – you need to trust us to gather and select the information.” But another message is that jurors should understand the proper ways they can be active, and should have as many of these legitimate opportunities as possible. “The modern juror is less likely to initiate juror communications and research on social media sites and internet when the prohibited conduct is clearly described, reasons for the prohibition provided, constant reminders offered, and sanctions outlined,” the judge argues. “More active and engaged jurors, progressive and well-informed judges and diligent lawyers should prevent instances of juror misconduct in emerging technology and social trends.”
Another novel point in the article is Judge Plogstedt’s recommendation to address the reasons why a juror could be tempted into violating their instruction. The judge’s proposed version, for example, notes “Despite judges’ instructions, jurors violate the court orders and use the internet and social media to satisfy their own curiosity, to explain matters that may not be explained well in the courtroom, to improve their decision making role, and to fill in the missing gaps in the information. Other times, jurors are bored or cannot break their habits or routines in accessing their phones and computers.” Now, some might fear that language like this is giving jurors ideas, but chances are good that it is nothing jurors haven’t thought of before. And identifying with their state of mind can substantially increase the chances that they’ll comply with the instructions, as long as that identification is followed up with a clear prohibition and discussion of consequences.
The article quotes University of Dayton School of Law Professor Thadeous Hoffmeister’s good observation that the reasons for noncompliance come down to three C’s. Jurors seeking elicit information or communication may be conscientious (wanting all possible information), curious (wondering what information was kept from them), or confused (feeling they need to define a term or investigate a legal concept). Perhaps the best message of the article is that just clarity is not enough if the instructions and the courtroom presentations do not address the other three C’s as well.
The Checklist: Every Social Media Instruction Should…
I want to include a quick distillation of the factors Judge Plogstedt reviews as being key to effective social media instructions.
- Notify jurors that information obtained out of court that might appear relevant to the case has a high likelihood of being inaccurate or irrelevant.
- Inform them that the parties have a right to respond and cannot do so based on information gained out of court.
- Identify the specific devices (laptops, tablets, smart phones, etc.) that jurors should be wary of using improperly.
- Name the actual sites and services that could lead to improper communications: texts; emails; Wikipedia; Google and Google Maps; Tweets; blog posts; Facebook updates, likes, or comments.
- Inform jurors of potential sanctions for electronic misconduct, including mistrial, contempt citation, fines or imprisonment.
- Let jurors know they have an obligation to report any known misconduct.
While this list is fairly comprehensive, there is one additional instruction that courts should consider. Telling the empaneled jurors not to use the internet or social media to communicate about the case would not prevent a ‘friend’ from posting or tweeting to the sitting juror a comment or a question about the case. Indeed, that is exactly what happened in one event Judge Plogstedt relates. During a criminal corruption trial in Baltimore, one nonjuror friend posted a comment reading “not guilty” to the juror’s discussion, and the juror then responded “NO AL, GUILTY AS HELL…SORRY.” To head off this possibility, courts should also consider adding an instruction that would tell jurors what they can say on social media. The instruction might be something like the following:
In view of these instructions, as well as the need to avoid having any of your friends or others in your network initiate communication with you regarding the case, the parties, or your jury service, you may consider providing a status update, a tweet, or some other social media posting that briefly explains these constraints. For example, ” I am in jury duty between the following dates and, during that time, I will not be able to comment on the case, the parties involved, the court personnel, the jury process, or any other aspect of the experience. Also, during that time, please do not message me or post anything on my wall or make any comments that would relate to any of those aspects of my jury service.”
The nature and extent of our electronic connections are still evolving, and it is inevitable that instructions will need to evolve right along with them. For now, the best practice seems to be to use clear, detailed, and comprehensive instructions that let sitting jurors know what is and is not allowed.
______
Other Posts on Jury Instructions:
- Take a Schematic Approach to Jury Instructions
- Just the Instructions, and Nothing But the Instructions: Increase the Salience of Jury Instructions
- Address Your Jury’s Inevitable Difficulty With The Instructions
______
Plogstedt, A. (2013). E-Jurors: A View from the Bench. Available at SSRN.
Image Credit: Marshall Astor – Food Fetishist, Flickr Creative Commons