By Dr. Ken Broda Bahm:
The “Googling Juror” has emerged as a massive concern in the courts with plenty of stories on the process being thrown into mistrial by panelists who had to look up a fact, couldn’t take their finger off the Tweet button, and felt the need to “friend” parties, attorneys, and other jurors. While the issue has been driven largely by these anecdotes, there is a new article in the Duke Law & Technology Review (St. Eve & Zuckerman, 2012) that supplements the discussion with a survey of 140 former jurors. Some of the coverage of this study has sounded like an alarm bell, with WSJ’s Law Blog for example, quoting one juror’s comment that “nothing” could prevent her from using social media during the trial, without mentioning that the same juror also insisted that she wasn’t tempted to use, and in fact didn’t use social media during her own trial.
In fact, of the full sample of 140 jurors surveyed, only six reported a temptation to use social media during their trial, and none of the six succumbed to the temptation. Of course, former jurors may be reluctant to admit misconduct even in an anonymous survey, and it remains true that “all it takes is one” in order to cause a mistrial. However, I’d like to inject a dose of realism into the discussion. Yes, it is safe to assume that most jurors are socially networked, but at the same time the trial can survive. Based on the study, it turns out that the best defense against juror misconduct in this new media age can be found in the most traditional of remedies: Instruct the jury. But not all instructions are equally effective. This post makes some recommendations on the specific kinds of instructions that attorneys should ask for in order to keep the case in the courtroom and off the social networks.
What Do Jurors Think?
The article in the Duke Law & Technology Review was written by Amy J. St. Eve, a Federal Judge from the Northern District of Illinois, and her law clerk Michael Zuckerman. The article includes all of the anecdotes that those of us watching this issue should be familiar with: the Arkansas death sentence set aside by a tweeting juror, the British juror who conducted a Facebook poll on how she should vote in deliberations, or the Florida juror who may face jail time for “friending” a defendant. The examples are important, but they don’t define the common experience of most jurors. In order to address that experience, St. Eve and Zuckerman over the course of 16 months asked jurors to fill out a short questionnaire at the end of their service asking whether they were tempted to use social media, and if so, what prevented them from doing so.
While the authors take pains to stress that the survey is informal rather than scientific, the responses provide a useful window into the jurors’ perspective on the issue. Fully 92 percent reported no temptation to use social media. Out of those who were tempted (six), the instructions, their oath, and their interest in a fair process persuaded them not to research the case or to otherwise use social media in a way that was related to the case. As Judge St. Eve told today’s Chicago Tribune, “It reaffirmed the importance of giving a jury instruction in the area of social media, and the fact that jurors do follow our instructions.”
What Instructions Should You Ask For?
This is obviously an evolving area, but we feel that there are a few basic principles that should guide the instructions that you ask for. It helps to be specific about what jurors can and can’t do, to give them reasons why, and to check to see if they are following instructions.
1. Ask for Specific Social Media Instructions
The old instructions to avoid news coverage and conversations about the case is not enough. With more than 800 million around the globe now using resources like Facebook on a daily basis, the idea of using these tools to narrate our lives has become as natural to some as breathing. It is as if juries are now composed of media representatives, each of which has access to their own newspapers. In that context, the prohibition needs to be specific. The most widely used instruction on social media, for example, seems to be that offered by the United States Judicial Conference Committee on Court Administration and Case Management (“CACM”). Quoted in full in the article (p. 18), the instruction refers to a prohibition on using social media tools for communication “about this case.” For generations, that has been clear enough, but with jurors now writing constantly about their life, and the trial being a point where their life and the case intersect, we may need to be more clear on what “about this case” means in practice. For example, is a juror posting a status update, “I’m bored toda,” just before the start of jury service writing about the case? Maybe, maybe not.
When we are convincing mock trial jurors to understand and respect their confidentiality agreements, one thing that helps is to tell them both what they can and cannot say, so it is neither a blanket prohibition nor an unrestricted license. We say, “you can tell friends and family that you were in a research project, that you heard presentations, answered questionnaires, and talked with other participants. You can ‘t refer to any of the names, events, or facts that you heard today…” We have never had a known confidentiality breach, and part of the reason is that we give participants a template. Courts could do the the same, for example, by telling jurors that they can continue to update status, tweet, blog, etc., as long as they make no mention of the parties, the proceedings, the judge, attorneys, witnesses, court personnel, other jurors, or the facts or testimony learned in trial. That would obviously require careful and comprehensive wording, but the more specific the instruction, the easier it is to follow.
2. Ask for Justified Social Media Instructions
Another way we instruct our mock trial participants is not only to tell them what they need to do or avoid doing, but to also tell them why they are being asked to do that. For example, we tell them that we are requiring their confidentiality not because there is anything secretive or improper about the project, but because we need to avoid influencing the venue out of respect for any future actual jury in this case. We typically get head nods from the mock jurors as we explain this, and we think it makes them much more comfortable in following the instructions.
Despite this basic fact that people generally like to know why they’re being asked to do, or to refrain from doing something, most court instructions are written to focus on the “what” rather than the “why.” The CACM model instructions referred to above, for example, include no reason for the social media prohibition. The juror responses in the St. Eve and Zuckerman survey tend to follow suit, emphasizing “the law,” “the judge,” and “the instructions” as the reasons they didn’t succumb to temptation. We can only expect better compliance if the justification is more explicit. As one judge quoted in the article noted, “If jurors are going to be asked to sacrifice some of their personal freedom and forgo their case-specific emailing, texting, blogging, instant messaging, and social networking for the duration of their service, they are entitled to a clear and thoughtful explanation of the reason.” On these grounds, the instructions proposed by the American College of Trial Lawyers are better to the extent that they focus on the need for “a fair trial based on the evidence” presented in court, and also explain that outside information may be inaccurate or inapplicable, and would deprive the parties of an opportunity to respond.
3. Trust, But Verify
This is one area where we shouldn’t simply presume compliance. We’ve written in the past that jury instructions tend to be taken seriously by most jurors, and followed when they are clear and understood. Supplementing this advice with the Illinois court’s survey results, it seems that courts and counsel are on safe ground assuming that most jurors are following the instructions most of the time. But given the high stakes involved, as well as the number of easy routes to social media mischief, counsel should pay attention to the public side of jurors’ on-line communication before and during trial.
It should be a standard step to complete once you have the list of potential jurors: Look at their public on-line information. Concerns about intrusiveness are important, but don’t apply to public information. Ignoring public on-line content is a little like learning that your potential juror is a newspaper columnist but not bothering to read any of the columns. Using a questionnaire or an in-court interview to ask about blogs, Facebook pages, Twitter feeds or other social media uses, you should know who among your jurors is active, and then you’re able to review those sources during trial just to make sure that the jurors are staying true to the instructions.
Obviously, we’ve left behind the era in which the biggest worry was that a sitting juror would read a local newspaper article on a case, or strike up a conversation about the trial at the local barbershop. Today, the average person can search the world’s information with a couple finger taps on a palm-sized box, or use the same tool to instantly address an audience of hundreds, thousands or more. In that context, the law needs to adopt to the times and lawyers need to be assertive in asking for the most effective instructions.
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Other Posts on Social Media:
- Best Trial Idea of 2011: Apply “Social Listening” To Your Case
- Conduct a Social Media Analysis on Your Potential Jurors (But Beware of False Expectations of Privacy)
- Parties, Witnesses and Jurors: Don’t Be Afraid to Meet Them Face to Face(book)
- Take a Discovery Lesson From ‘The Social Network’
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St. Eve, Hon. Amy J. & Zuckerman, Michael A. (2012, March). Duke Law & Technology News 11, 1-29. URL: http://dukedltr.files.wordpress.com/2012/03/stevefinal_31.pdf
Photo Credit: Xjs-Khaos, Flickr Creative Commons