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Trial Evidence Committee

Juror Use of Social Media: Closing the Evidentiary Back Door

By Andrew B. Flake – November 14, 2013

 

With the mobile-device market exploding, it is certain that most of the jurors on your next panel will possess Internet-enabled smartphones—and that those phones will be loaded with social media applications. Facebook reports 198 million monthly active users just in the United States and Canada, with more of them accessing their accounts today from mobile devices than from desktops. See Facebook Quarterly Earnings Slides Q2 2013; Donna Tam, “Facebook by the Numbers: 1.06 Billion Monthly Active Users,” CNET News, Jan. 30, 2013. The trend is similar for other social media services; on Twitter, for example, 43 percent of Twitter users access the service by mobile device. See Twitter Statistics, statisticbrain.com (May 7, 2013). For jurors conditioned to access social media regularly, often about even mundane topics, the temptation to use these devices to post about a trial will be strong. And that is in an ordinary case; in a high-profile matter, it will be almost irresistible. In this article, we look at this problematic reality from the perspective of trial counsel and then suggest some practical means of addressing it.


The Risks to the Trial Process
To begin with, why is it that social media use by a juror is a problem? In general, the parties in a jury trial have a right to expect that the only evidence considered by the jury has been submitted by their lawyers and approved by the court. In the criminal context, the Sixth Amendment’s guaranty of an impartial jury means one that is able to decide the case only on the evidence introduced during the trial. Smith v. Phillips, 455 U.S. 209, 217 (1982). The smartphone, though, is a pocket-sized entryway to a wide-open and uncontrolled electronic frontier and its potential prejudicial effect. At a minimum, the smartphone makes access to extra-judicial information immediate: It is tempting for a juror to scan a news feed, look at the crime scene on Google Maps, or use Wikipedia to search for content about the technology at issue in the trial. The practical risk of exposure to such information—for example, a juror’s review of a Wikipedia article about the defendant or a scan of media coverage—is that it shapes the juror’s views without any opportunity for the lawyers in the case to evaluate that influence or to frame questions or argument. See, e.g., State v. Abdi, 45 A.3d 29 (Vt. 2012) (reversing verdict based on independent research about Somalia); Russo v. Takata Corp., 774 N.W.2d 441 (S.D. 2009) (verdict set aside because of juror Google search). Normally, through discovery, pretrial motions practice, motions in limine, and evidentiary rulings, the lawyers with the court’s assistance have vetted the evidence to that which is relevant for trial. The voir dire process is then designed to permit lawyers to understand as much as possible about how jurors may react to the evidence and to adjust their cases accordingly.


By contrast, if a juror conducts his or her own Internet searches or queries, neither the lawyers nor the court have any way to control the accuracy of the information independently obtained. The court cannot issue appropriate curative instructions, and counsel cannot adapt their theories of the case or openings and closings to such information. And even if it is not shared explicitly with fellow jurors, the extraneous information can make its way into jury deliberations through the opinions of the juror who has been tainted.


The interaction of our experiences, beliefs, values, and knowledge that we gain is a complex one, and there is no telling what the ultimate impact of such information will be.


Social media then adds another dimension. Although the problems with accessing the Internet or reading social media are clear, the problem with external communications may be less so. Certainly, if there is a confidentiality order in the case, the harm is obvious. But if one juror is posting and another happens to read it, that is also an indirect circumvention of the prohibition against jurors discussing the case before deliberations. Jurors are not supposed to make up their minds until the evidence is closed and they have been instructed on the governing law. By posting and expressing a view about the case, a juror is doing exactly that. Or jurors may be communicating with each other outside the jury room, as they did in the trial of former Baltimore mayor Sheila Dixon. See Martha Neil, “Juror Facebook Contact, $324 Food Prize Could Cause Mistrial in Baltimore Mayor’s Case,” A.B.A. J., Dec. 7, 2009. By communicating outside the jury room concerning a trial, the jurors are engaging in premature deliberation, which is not fair to the parties. It is also possible that witnesses to the case, who would otherwise be sequestered, may read information about testimony in the case.


Preventive Measures
What are the best measures to prevent these problems from occurring in the first place? Start a dialogue early. Prior to trial, raise and discuss the issue of juror social media use with opposing counsel and raise the concerns, jointly if possible, with the court. Counsel has an important role to play here in educating the court. The level of technological familiarity and awareness of social media varies from court to court. Most judges will welcome assistance from trial counsel, and for those less receptive judges, some statistics about the frequency of the problem and a reminder about the implications for the stability of a verdict should suffice.


With the court’s leave, even before voir dire, trial counsel can research the social media profile of prospective jurors by including appropriate topics in a jury questionnaire. How many accounts does a juror have? How actively does he or she post? A court-approved questionnaire can avoid the appearance that one side or the other is prying unnecessarily, for example, by asking about which social media services prospective jurors use and what their user names are. And certain questions can identify jurors at risk for inappropriate social media access, by inquiring about frequency of use; certainly, there are users for whom the need to post becomes compulsive, and for those prospective jurors, abiding by the court’s instructions becomes more difficult. Voir dire can then be used to follow up on individual responses, which the court, to preserve neutrality, may wish to conduct itself.


Jury Instructions
Next, the court should provide and enforce detailed preliminary jury instructions concerning Internet and social media use in the interests of all parties. Increasingly, and positively, many courts include such instructions in their standard package of preliminary matters. The federal Judicial Conference Committee has proposed some instructions that are a useful starting point. For sample instructions employed by different federal district judges, see Meghan Dunn, Fed. Judicial Ctr., Jurors’ Use of Social Media During Trials and Deliberations (Nov. 22, 2011). The instructions themselves should be comprehensive in identifying the types of conduct that are prohibited, from “friending” participants in the trial, to blogging, tweeting, posting any other form of update, or conducting independent research. Repetition of these instructions throughout the trial is important, beginning and ending each day with a reminder to eschew any social media use related to the trial, communication about the trial, or independent research. Especially in a high-profile case, it can also be useful for trial counsel to mention the prohibition in opening statements and closing arguments.


In instructing the jury from the beginning, the court should explain to the jurors why their behavior is restricted. More than anything else, explaining the purpose of the restriction helps to deter unauthorized research and posting. Jurors do take their jobs seriously and, with explanation, tend to understand that fairness to the parties dictates that jurors weigh only the information that is admitted into evidence. The court should enlist and empower the jurors, asking them to be observant for and report any such use or beliefs about such use by other jurors.


To indicate the seriousness of the admonition, the court should also warn jurors of the consequences of a violation, including imposition of punishments like fines, contempt, or imprisonment. See, e.g., United States v. Juror Number One, 866 F. Supp. 2d 42 (E.D. Pa. Dec. 21, 2011) ($1,000 criminal contempt fine for juror who emailed thoughts on guilt of defendant to other jurors). The court may even go further, mandating jurors to agree in writing to refrain from the prohibited conduct; the court can warn the jurors that violation of the pledge is punishable by contempt or even perjury. See, e.g., In re Kaminsky, 2012 N.J. Super. Unpub. LEXIS 539 (N.J. Super. Ct. Ch. Div. Mar. 12, 2012) (directing juror to show cause why he should not be held in contempt for Internet research during trial). Correspondingly, courts must be prepared to enforce the restrictions—not least of all because of the deterrent effect such sanctions will have on future juries.


A question that trial counsel and courts frequently have is whether it would be simpler to just eliminate any Internet access during trial entirely. Let’s say a juror has her cell phone ready at hand, with the temptation to use it throughout trial. Certainly, the court could avoid real-time postings or Internet access by directing jurors to turn in their phones during trial. But, unless the case is the rare one in which the jury is sequestered, even confiscation of phones and other mobile devices during the trial does not prevent after-hours conduct. And there may be business or family reasons that jurors may need to have phones nearby. Finally, and just as important, experience suggests that the very act of restricting access completely may create resentment in jurors, leading to a stronger desire to break the rules. It is far better to combine updated and regularly repeated jury instructions, reinforced by trial counsel, and backstopped with the possibility of meaningful negative consequences.


Dealing with Violations
Of course, not every juror follows instructions, and despite these precautions, violations will occur. Social media use is very hard for the court to police. Of 508 federal judges surveyed in late 2011, only about 30, or 6 percent, had detected juror use of social media. SeeDunn, supra. Does this mean that no use was occurring? It is unlikely, given the prevalence of Internet-enabled and technology-savvy users, whose attitude is that Internet research is a common and necessary adjunct to individual evaluation of a question or issue. The same judges surveyed acknowledged that they have no effective means of policing any use outside the courtroom. Then, too, the court has other demands on its time and attention after trial concludes for the day.


For all of these reasons, the burden of monitoring potential improper use of social media by jurors during trial devolves mostly on trial counsel. During trial, someone on the trial team should, on a daily basis, run searches for party names and information about the trial, to identify whether or not any improper communications appear to be emanating from the jury. If through this process, observation during trial, or the reporting on or self-reporting of a juror, it comes to trial counsel’s attention that improper information has been accessed, several steps are recommended.


The first is a full assessment of the situation. What exactly was viewed, with whom, and was it shared or discussed with other jurors? Was their conversation about the content, and if so what were the specifics of the conversation? The court will need to question the jurors on these topics, and trial counsel should offer to provide the court with a script to do so. The questioning should be on the record. If for some reason the court does not want to ask the questions that trial counsel thinks are important to assess the extent of the problem, a copy of those questions should be introduced into the record as a proffer following an objection by trial counsel. The court will have to determine whether there was prejudice, United States v. Fumo, 655 F.3d 288 (3d Cir. 2011), and the parties will need to guide the court in that determination. Virtually all judges concerned with the integrity of the process will attempt to ask appropriate questions.


If a material violation is discovered, the court will have a range of remedial options. The court can remove a juror or jurors, leaving the options of proceeding with a smaller jury or using alternates, if alternates were selected; the court can give a curative and/or cautionary instruction; or the court can declare a mistrial. The latter has the most serious implications and is the one that the court typically will be most hesitant to choose. A Reuters Legal study of 10 years of reported decisions from 1999 to 2010 revealed 90 decisions in which a court granted or denied a request for new trial or reversed a decision based on alleged improper Internet use by jurors, with half of those coming in the last two years of the study. SeeBrian Grow, “As Jurors Go Online, U.S. Trials Go Off Track,” Reuters,   Dec. 8, 2010. The possibility of a mistrial also affords cold comfort to the parties who have invested their time, money, and resources preparing for a jury trial. It is even less helpful for trial counsel who at that time had anticipated a favorable verdict.


In some cases, unfortunately, it is not until after the verdict is rendered that trial counsel discovers that improper information has made its way into the jury panel. Often this occurs during post-trial questioning of jurors, a good practice in any event and, in the era of social media, a necessity for the losing party. If the court permits such questioning after trial, and not every judge makes it a practice, trial counsel should pose questions about whether anyone saw or read anything online about the trial or subject matter. The standard for impeaching the verdict is a challenging one; trial counsel must not only show the outside influence but  also must demonstrate prejudice. Further, by virtue of the governing rules, the scope of questioning is constrained. A juror may not be asked about his or her mental processes, the effect of any information on his or her vote, or deliberations, but only about whether “extraneous prejudicial information was improperly brought to the jury’s attention” or whether “an outside influence was improperly brought to bear on any juror.” See Fed. R. Evid. 606(b). If trial counsel discovers a potentially prejudicial violation, it is possible to request a post-verdict hearing, but the court will require an adequate threshold showing of possible harm. United States v. Nieto, 721 F.3d 357 (5th Cir. 2013) (“ultimate inquiry” is whether intrusion affected jury’s verdict). Not every violation of the rules will be considered substantial. And if the court calls a juror in for a post-verdict interview, it should be recorded. An appellate court reviewing the matter will consider only what is in the record. Robinson v. Polk, 438 F.3d 350, 363 (4th Cir. 2006) (discussing need to demonstrate existence of extraneous prejudicial information or outside influence on partiality of jury).


Once trial counsel is armed with evidence of a violation and resulting harm, the vehicle for raising a challenge is a motion for a new trial.Denhof v. City of Grand Rapids, 494 F.3d 534, 543 (6th Cir. 2007); see also Fed. R. Civ. P. 59(b) (motion for new trial must be filed no later than 28 days after entry of judgment). To bolster the motion, include with it an affidavit from a jury member or members with knowledge of the violation or, at a minimum, an affidavit concerning what trial counsel heard from the juror(or jurors) about the outside influence. See Fed. R. Civ. P. 59(c) (affidavits must be filed with motion for new trial). It is important that the affidavit be specific and, if possible, include copies of the website or materials referenced by the juror, along with any postings. And the motion should emphasize the harm that resulted from the improper reference.


Conclusion
It has always been challenging to deal with a juror’s natural inclination to want to know more about a case and thus to talk with a spouse or colleague with some knowledge of the subject matter involved in a trial. Today, however, for a juror with a smartphone and a cellular or wireless signal, information is readily accessible. With more than a billion people using Facebook and hundreds of millions on various other social media, it is a near certainty that jurors will be not only consumers of social media content but also, in many cases, posters themselves.


The combination of ubiquitous and easy information access, with near universal social media use, now poses a real threat to the integrity of the jury system. As trial counsel, we cannot put our heads in the sand and ignore this phenomenon. Preservation of a meaningful right to jury trial is too important. Instead, we must take the problems head-on, educating ourselves and, in turn, educating courts and opposing trial counsel. Working with them, in the interests of fairer and more robust trial verdicts, we can bolster the current Rules of Evidence and Procedure against the strain of new technological uses and effects.


Keywords: litigation, trial evidence, social media, Internet, juror, jury instructions, mistrial


Andrew B. Flake is a partner in the Atlanta, Georgia, office of Arnall Golden Gregory LLP.


 
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