Jurors Cannot Escape Social Media

Out of the world’s population of nearly 7.8 billion people, almost 3 billion (or 35% of the entire world) are active social media users each using about 5.54 platforms. It’s safe to say that many potential and former jurors fall within this 35 percent. What’s the issue with jurors utilizing social media? More than you think.

(Photo credit: www.law.com/therecorder/almID/1202784626601/Should-You-Facebook-the-Jury-Yes-No-Probably/)

Jurors’ activity on social media during a trial may make it impossible to have a fair trial depending on the level of media attention. There are several factors impacting the impartiality of jurors, which in turn could sway their vote and the votes of other jurors:

•            Irrelevant outside information from social media can cause a juror to conclude differently than they would if they drew a conclusion from the evidence presented during trial.
•        Ideas and beliefs from friends, family, and followers, who are not jurors, may influence a juror’s beliefs and cause them to come to a different conclusion.
•        The court of public opinion’s take on the law could be different than the definitions and guidance supplied/accepted by the court, which could have the juror relying on incorrect law.

All of these above-mentioned factors were found present in a federal drug trial where “nine jurors conducted Google searches on the lawyers, the defendant, articles about the case, definitions on Wikipedia, and evidence that had been purposely excluded by the judge. When questioned by the judge, one juror stated, ‘Well, I was curious.’” Unfortunately, this curiosity is shared among many jurors. There are many more cases where jurors participated in this type of misconduct and cases where this misconduct has led to mistrials.  

Ways to Curb Social Media Usage

Eliminating social media usage should start during voir dire. Well-tailored voir dire questions may assist in weeding out those who may be addicted to their phone. Depending on the local laws, attorneys may be able to do their own social media research on potential jurors to determine how much screen time they spend on various platforms. (While this research may expose more than their level of activity, such as interests, political beliefs, and more, our focus is frequency of usage.) Maybe the person who averages 25 tweets an hour won’t be the best for your high profile case.

After the voir dire process, sequestering jurors and their electronic devices is ideal, but not at all practical. Even with sequestering jurors and their devices, in 2019, people can access electronic devices to log into their social media accounts almost anywhere. An alternative to sequestration may be a monitoring system. “One commentator has called for the establishment of a system of juror monitoring in which a juror is randomly selected and questioned by the judge about whether anyone on the jury is using social media or conducting Internet research.”

Next, jury instructions may helpful. Many jurisdictions have started the discussion about minimizing the risk of social media activity by jurors. Some jurisdictions have promulgated new and/or modified jury instructions to address the issue. Less than 10 year ago, the Judicial Conference of the United States proposed pre-trial and post-trial instructions, which both reiterate the technological tools not be used and the prohibition of outside communication. If a juror is able to understand the negative impact their social media usage is likely to have on the trial, they may be less likely to avoid scrolling through Facebook or Twitter. The National Center for State offers a poster that summarizes juror protocol regarding social media.

While there are many great ideas regarding abolishing social media usage, we must be realistic. A poster or just one method isn’t going to be extremely effective. Courts will have to apply multiple methods to tackle this issue. At this point in society, we have a reached a time where a great number of potential jurors in the jury pool likely have little to no recollection of life without social media. That being said, many jurors will continue to use social media before, during, and after a trial. Since it’s impossible to eliminate social media usage, what are some ideas to curb it?