In the current age of digital and social media, juror use of social media is perhaps among 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.
THE DANGERS OF TWEETING, POSTING, SENDING MESSAGES OR BLOGGING DURING TRIAL
The basic concerns surrounding social media use by jurors are not new – communication during trial proceedings or deliberations divides the juror’s attention and distracts others. But that is only the beginning. In addition to presenting another convenient mechanism to publish information related to the trial, social media is a direct route for the introduction of jurors to “extraneous information” from a virtually unlimited number of people. The ability others have to comment on and to forward posts by jurors invites feedback, which provides an opportunity for extraneous information or influence and may affirmatively attempt to influence the outcome of the trial.
Juror use of social media disregards the court’s typical instructions on communicating with others about the case. In Dimas-Martinez v. State, the appellant raised the issue of a juror tweeting during the trial contrary to the court’s instructions. The Arkansas Supreme Court concluded that the “appellant was denied a fair trial where the juror disregarded the circuit court’s instruction and tweeted about the case.”
The court noted that the appellant’s claim was not that the juror tweeted about the case, rather, the appellant argued that the juror continued to disobey the trial court’s instructions, which prejudiced the appellant. “The circuit court’s failure to acknowledge this juror’s inability to follow the court’s directions was an abuse of discretion.”
Another example of juror misconduct is a juror’s (or venire member’s) deception regarding social media activity. In Commonwealth v. Sluss, the Supreme Court of Kentucky avoided the question of whether being Facebook friends with parties to the case is itself prejudicial, holding that any prejudices resulted from the juror’s deception in response to voir dire questions. However, the court held that the “appellant could not have reasonably ferreted out the information regarding the juror’s apparent falsehood during trial. He is at least entitled to an adequate post-trial hearing to examine this issue. In many cases, proof of juror falsehoods by themselves has been enough to require reversal.” That being said, it is worth noting that the court’s sympathy for trial counsel’s reluctance to explore the jurors’ social media behavior may no longer be consistent with best practices and ethical duties of trial counsel.
The basic concern with social media contact is a traditional one regarding extraneous influence. Courts have held that if even one juror is led to prematurely decide a case or to make a decision based upon extraneous information, the parties are deprived of a fair trial. This concern is magnified by social media’s instantaneous nature and because of how many people such communication can reach, which presents many more opportunities to influence the juror, and does not even touch upon the increasing rate at which juror’s conduct online research during trials or deliberation.
Because of the difficulty a litigant faces in demonstrating sufficient prejudice and the increased risks associated with social media, the preferred strategy is to prevent the issue from arising at all. Furthermore, even if the misconduct cannot be entirely prevented, correcting the misconduct through further admonishment or dismissing a juror, is much more likely than obtaining a mistrial or a new trial.