Courts and Social Media

In recent years there has been an increasing (and therefore somewhat alarming trend) of mistrials being declared or jury verdicts being thrown out on appeal because of impermissible use of social media by jurors or others in court.  It is increasingly common for juror use of or commenting on social media has increasingly led to attempts by one side or another in a case to have a mistrial declared or an unfavorable verdict thrown out.

Most of these cases of mistrials or of verdicts being thrown out have been a result of jurors violating instructions that they not discuss the case they were on outside of the jury deliberation process, but this is not always the case.  For instance at least one case has been thrown out simply because a reporter took a picture in court against court rules that happened to show one or more of the jurors and posted the photo to their newspaper’s online and social media accounts, causing the presiding judge to ultimately declare a mistrial.   

Impermissible social media is now so highly scrutinized that even the mere possibility that a member of a grand jury may have talked to members of the public can prompt calls for investigations, though in case earlier referenced this claim of impermissible contact was apparently a hacking hoax.

There seems to be an increasing trend in the courts to consider and treat social media, as well as the internet more broadly, as if they were the same as old media in terms of their ability to impermissible influence jury decisions and violate the constitutional right to a fair trial.  This is not all that shocking when one thinks about it as social media and the internet incorporate many aspects of both traditional media and older communications technologies which jurors are already explicitly banned from using.  

Ultimately this trend will probably end with jurors firmly banned from both social media and internet use and that ban becoming an ingrained part of the judicial process and the public’s awareness of—and therefore compliance with—it.  One can only imagine such an occurrence is something that any court that has had a mistrial or a ruling reversal because of jury social media use looks forward to almost as excitedly as a child looks forward to opening presents on their birthday.