The survey of all active and senior federal district court judges, in which more than half responded, reveals that six percent had detected the use of social media during the trial process; the use of jury instructions barring the use of electronic social media and other steps to discourage access during the trial are noted, in a new Report to the Judicial Conference Committee on Court Administration and Case Management
We previously noted that model jury instructions have been developed to address the problem of jurors using social media and internet resources during jury services. See Model Jury Instruction Recommended To Deter Juror Use Of Electronic Communication Technologies During Trial. The Judicial Conference Committee on Court Administration and Case Management issued model instructions “to help deter jurors from using electronic technologies to research or communicate about cases on which they serve.” See Memorandum On The Juror Use Of Electronic Communication Technologies"; see also Other Model Jury Instructions.
A recent report noted the results of an October 2011 survey of federal district courts on this issue. 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). According to the report, six percent of the responding judges reported that they had determined that jurors had used social media during the trial process. As the report explained:
Of the 30 judges who have detected juror use of social media during trials and deliberations, the majority (28 judges, or 93%) have seen social media use by a juror in only one or two trials. The instances of social media use were more commonly reported during trials (23 judges reported at least one instance) than during deliberations (12 judges reported at least one instance), and were more commonly reported during criminal trials (22 judges with experience) than during civil trials (5 judges). Three judges encountered jurors using social media during both criminal and civil trials.Report, at 2.
Sixty percent (or 304 judges) indicated that they have used model jury instructions to discourage the use of social media by jurors. Report, at 6. Other measures were identified:
The most common measure used by judges, other than the model jury instructions, was to explain, in plain language, the reason behind the social media ban; 63% of the respondents to the survey (or 317 judges) use this approach. The next most common approach, used by 53% of the judges (or 271 judges),was to instruct jurors at multiple points throughout the trial (i.e., at the end of each day of testimony).Some judges use their own jury instructions and instruct the jury before trial (45%, or 227 judges) and before deliberations (35%, or 176 judges). Seven judges provided copies of their social media jury instructions when they submitted their questionnaires. …Report, at 8-9.
An additional 39% of judges (199 judges) remind jurors at voir dire to refrain from using social media while serving as a juror, and 20% (103 judges) alert the jury about the personal consequences of inappropriate social media use (i.e., personal fines or being held in contempt of court). Approximately one quarter of the responding judges reported confiscating cell phones and other electronic devices, with 22% (113 judges) doing so at the start of each day of trial and 29% (147 judges) doing so during deliberations. Few judges ask jurors to sign formal statements of compliance; only 3 judges indicated they required jurors to sign a statement of compliance, and 3 indicated they required jurors to sign a written pledge. Other strategies for preventing jurors’ use of social media include administering a separate oath to jurors (5 judges) and posting reminders in jury assembly and deliberation rooms (3 judges).