Introduction: The Problem of Jurors
on Social Media
Over the past fifteen years, the rise of social media has
created a growing concern for trial attorneys and for courts. Specifically, sites
such as Twitter, Reddit, and Facebook have allowed people to freely share thoughts,
ideas, photos, and videos. And while the freedom to share expressions and ideas
is a cherished ideal in the United States, it is a major hindrance to the idea
of an “impartial jury.”
The dangers of impartiality not only linger in what a
juror could see from other social media users, but problems have arisen out of
jurors’ improperly divulging information as the trial and jury deliberations
were under way. Such was the case in Arkansas, back in 2011, when a murder
charge was overturned because a
juror tweeted out “its (sic) over” during the course of the trial.
In another example of social media impropriety out of
Mississippi, a juror posted on Facebook that “I guess all I need to know is
GUILTY. lol.” That specific juror also friended a trial witness on
Facebook. Luckily for the trial attorneys, the Court of Appeals denied a
mistrial; however, the judicial system is certainly not something that
attorneys and judges wish to be left up to chance. Indeed, many such instances
of juror misconduct on social media do result in a mistrial, as evidenced by a
juror/witness exchange in State
v. Smith out of Tennessee. In that case, a juror contacted a witness
with whom they were familiar to congratulate them on “explain[ing] things so great.”
Although the Court of Appeals left the guilty verdict alone, the Supreme
Court of Tennessee vacated the decision by stating “[l]ike judges, jurors
must be—and must be perceived to be—disinterested and impartial.”
What can the Courts do to Minimize
Juror Impropriety?
So, what can be done to minimize the risk of juror
impropriety as it relates to social media? Admittedly, the court cannot control
juror activity once they’ve left the courtroom. So the onus is put on each
juror to maintain that impartiality. And the courts can certainly drive that
point home in a more effective way.
For example, the Maryland Courts have put together an article for jurors to read
that explains what they cannot do on social media during trial, and more importantly,
the article gives reasons as to why that is the case. That non-exhaustive list
of guidelines provides a useful tool for jurors to read through and take note
of the seriousness with which the court takes social media use during a trial. Indeed,
it was noted in a Duke
Law Review article that jurors are more willing to adhere to the instructions
if they are explained why those regulations exist.
As of 2020, the Federal Courts have proposed a set of Model
Jury Instructions that explicitly state the prohibitions on blogging or taking
to social media at each stage of the trial. Additionally, within each paragraph,
the instructions lay the groundwork for why this is so important. But such
instructions are simply a preemptive strike against potential juror impropriety
on social media. There is no recourse for the juror’s actual violation of the
rules.
Implementing some form of punishment for the individual
juror who fails to adhere to the guidelines appropriately set out prior to
trial could provide the courts with a handy way to limit the use of social
media. Indeed, a hefty fine would certainly deter such conduct, and the
fine would certainly be far less expensive for the judicial system than having
the case go through the appellate process as a result of an individual juror’s
misconduct. In 2016, California implemented a $1,500.00
fine for any juror caught using social media. But such a fine could further
harm the idea of jury service for potential jurors who are already reluctantly
appearing for their summons’.
Conclusion: Courts Must Find a Way
to Prevent Continuing Problems with Social Media and the Jury
Regardless of how courts go about preventing
improper use of social media during trials, it is very important to make jurors
understand why. Such an explanation gives the jurors a better idea of ownership
over their actions as they pertain to their service on a jury. And when the
jurors take that ownership and decide not to act inappropriately, the
entire judicial system is greatly improved. The costs of appeals for juror
misconduct would be diminished, and verdicts would be left untouched and
unchanged—a result that each party to the trial is always hoping for.
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