In the current age of digital and social media, juror use of social media is perhaps one of the greatest challenges facing courts and litigants. In this four-part series, Paul Zimmerman highlights some of the problems associated with juror use of social media, including juror misconduct, disregard for courts’ instructions and threats to impartiality. Paul offers suggestions for minimizing misconduct and stresses the need for specific jury instructions to address social media concerns.
Action must be taken to decrease the jury’s social media contact and to simultaneously preserve issues for appeal. But what action accomplishes both of these tasks? Restricting jurors from using or accessing cell phones during trial or even solely during deliberations may not be practical for a an extended trial. But an argument can be made that this is no different from sequestration before the age of cell phones and smart phones, which was not so long ago. More and more commentators are calling for the exclusion of cell phones from the jury room during deliberation.
In the absence or modification of an appropriate pattern jury instruction, a formula should be followed to prepare specific jury instruction regarding social media. These specific instructions should:
- inform jurors specifically what is prohibited and why;
- be scalable to characteristics of the case, such as the duration and level of media attention;
- be balanced so as to not place too much emphasis on social media to the marginalization of the court’s other instructions to the jury; and
- be given or referenced each time the jury is dismissed, even for short breaks.
Many states have developed pattern jury instructions regarding social media use – but case law testing the appropriateness or sufficiency of these instructions is lacking. Also, failure to admonish a jury at a particular recess is unlikely to be reversible error when the jury was properly instructed on other occasions.
Admonishments specifically referencing social media should be requested every time the court instructs the jury not to discuss the case or perform outside research because many jurors do not associate this instruction not to “communicate” about or “discuss” the proceedings with posting on social media. Reminders should specifically mention social media outlets such as Facebook, Twitter, Instagram, and blogs, as some jurors may not associate a general admonishment with their Facebook, Twitter or Instagram habits, or refrain from their habitual postings.
When social media communications are discovered or suspected, obtain detailed information about the communication. The lawyer should request an instruction by the court regarding the prohibited contact and request that the juror be questioned on the record and away from other jurors regarding:
- the subject matter of the contact;
- to whom it was directed;
- the medium of the exchange;
- whether any responses were received; and
- the content of the communications.
This inquiry should not be delayed. Obtaining any inquiry beyond such questioning is likely to be seen as an imposition on the juror, and most courts will not allow an inquiry regarding discussions among jurors about the contact. Parties may never know the harm caused due to the inherent difficulty in accessing a juror’s private social media messages. Preventing such communication is better than trying to assess or remediate any damage to the trial process after it occurs.
In conclusion, the fundamental issue of social media interference in trial proceedings is juror misconduct. At its core, a juror’s social media use about a trial violates the court’s instructions against communicating about a case. Using social media for such communication adds a magnified risk through its opportunity for wide, contemporaneous distribution, and attorneys must work to prevent or correct it in their trial practice.
While the courts must tackle the difficulties that social media and any related technologies impose, no solution will be perfect, and no solution will fit all situations.