New Judicial Survey Concerning The Use Of Social Media By Jurors And Attorneys

A new survey of federal trial judges reviews the use of social media by jurors at trial; the survey also provides sample jury instructions used by several trial judges to discourage social media use during a trial, in a recent FJC publication: Jurors’ and Attorneys’ Use of Social Media During Voir Dire, Trials, and Deliberations: A Report to the Judicial Conference Committee on Court Administration and Case Management, Federal Judicial Center (May 1, 2014)

Over the past few years, concerns over the use of social media by jurors during trial have been raised. To mitigate against the reliance on social media information at trial, many federal courts have used jury instructions to remind jurors that they must decide the case solely based on the evidence introduced at trial and not based on external information including through the use of social media. Some cases have been reversed after juror research has been uncovered. See, e.g., Juror Internet Research Leads To Reversal. In other cases, courts have had to consider whether a new trial should be granted based on juror access to Internet information during trial. See, e.g., Juror Review Of Summary Article On The Internet Did Not Warrant New Trial.

Prior 2011 Survey And Report

In November 2011, a report provided survey results of federal judges concerning the use of social media at trial. A small number of judges (30) reported that they had discovered juror use of social media during trials and deliberations. At the time, sixty percent of the responding judges noted that they were using jury instructions to discourage juror use of social media during trials. See Jurors’ Use of Social Media During Trials and Deliberations: A Report to the Judicial Conference Committee on Court Administration and Case Management (Nov. 2011); see also New Report On The Use Of Social Media By Jurors.

New 2014 Survey And Report

A new survey of federal judges provides an update on the judicial perspective of juror use of social media during trials. The survey was requested by the Judicial Conference Committee on Court Administration and Case Management and conducted by the Federal Judicial Center. The recently released survey of trial judges sought "to assess the frequency with which jurors used social media to communicate during trials and deliberations in the past two years, and to identify strategies for curbing this behavior." See Jurors’ and Attorneys’ Use of Social Media During Voir Dire, Trials, and Deliberations: A Report to the Judicial Conference Committee on Court Administration and Case Management, Federal Judicial Center, at 3 (May 1, 2014); Appendix. An electronic questionnaire was sent to "all active and senior federal district judges" (totaling 1,021 judges). Nearly half, 494 responded (reflecting 48 percent). See Appendix B (Survey Document: Use of Social Media in Courtrooms). The responses included all 94 districts and the Court of International Trade and the Court of Federal Claims. See Appendix A (Responding Judges by District).

Social Media Remains An Uncommon Occurrence

The responding judges reported that the "use of social media by jurors during trials and deliberations is still not a common occurrence, and has not increased in frequency over the past two years," only seven percent compared with six percent in the 2011 survey. Report, at 4. According to the report, there was a change in the types of social media used by jurors:

A comparison with the 2011 survey shows that the social media forms used by jurors have changed—at least as reported by the judges—with more jurors using Facebook (9 judges, or 30%, in 2011) and personal blogs (0 instances in 2011), and fewer jurors using instant messaging services (7 judges, or 23%, in 2011). Detected usage of Twitter (3 judges, or 10%, in 2011) and Internet chat rooms (3 judges, or 10%, in 2011) has remained the same over the intervening two years. We cannot determine whether this is a true change in the social media used by jurors or a change in judges’ ability to detect and recognize different types of social media used by jurors.

Of the 16 judges who described the type of social media use jurors engaged in, six judges reported that a juror divulged confidential information about the case (see Table 3). This is a change from the findings of the 2011 survey, in which no judge reported any instances of jurors using social media to divulge confidential information about a case. Additionally, three judges reported that a juror communicated or attempted to communicate directly with participants in the case, and two revealed aspects of the deliberation process. Judges could select “other” as an option for identifying additional
ways in which jurors inappropriately used social media; the nine who did listed case-related research (five judges), sharing general jury-service information (three judges), and texting (one judge).

Report, at 5.

Summary Of Results

The report summarized the survey results:

The detected use of social media by jurors during trials and deliberations is not common, but does occur. Thirty-three out of the 494 judges who responded reported instances in which jurors were detected using social media, most often during criminal cases. Social media use most often took the form of revealing confidential information about a case. There were several instances of jurors attempting to contact participants in the case via social media. When social media use was detected, it was most likely to be reported by a fellow juror.

Although the overall incidence of detected social media use by jurors has remained the same in the two years since the original survey was conducted, the specifics of what jurors are communicating has changed, with an increase in the divulgence of confidential case information. Judges are aware that some jurors are using social media and have taken steps to address its use in the courtroom. The majority of judges have taken at least some precautionary steps to ensure that jurors do not use social media in their courtroom. The most common strategy is explaining to the jury in plain language the reason behind the social media ban, followed closely by incorporating social media use into their jury instructions and reminding jurors at voir dire to refrain from using social media. Judges admit that it is difficult to police jurors, making it hard to evaluate frequency and assess the impact of preventive measures.

Attorneys’ use of social media to research prospective jurors during voir dire is difficult to both detect and quantify; most judges do not know whether attorneys are accessing potential jurors’ social media profiles during voir dire, and most do not address the issue with attorneys.

Report, at 15.

Sample Jury Instructions Concerning The Use Of Social Media At Trial

The Report provided several sample jury instructions to discourage the use of social medial at trial.

For more jury instruction examples, consider:

Conclusion

While it is encouraging to learn that the use of social media is not significant on the whole, in any particular case it can result in reversal of a jury verdict. Preventative steps -- such as jury instructions and education about the role of jurors in deciding the facts based on the evidence presented and in applying the law provided by the trial judge -- will continue to be essential to avoid this risk.

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