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American Bar Association

Trial Evidence Committee

#Justice? Social Media's Impact on the U.S. Jury System

By Katie L. Dysart and Camalla M. Kimbrough – August 22, 2013

 

A death row inmate’s murder conviction tossed because of a juror’s tweets during trial. Dimas-Martinez v. State, 385 S.W.3d 238, 249 (Ark. 2011). A Kentucky murder conviction reversed when two jurors Facebook-friended the victim’s mother during trial. Sluss v. Commonwealth, 381 S.W.3d 215, 229 (Ky. 2012). A Michigan juror removed after posting a “guilty” comment on Facebook before the conclusion of trial. Martha Neil, “Oops. Juror Calls Defendant Guilty on Facebook, Before Verdict,” A.B.A. J., Sept. 2, 2010.


The evolution of Internet-based real-time communication is stressing one of America’s most fundamental institutions. Plainly, our jury system’s creators could not have envisioned instantaneous mass communication available through social media and Internet-based research and media applications. Given the explosive growth of social media, the bar must prepare to counter the potential adverse impact social media has on our juries.


While this article acknowledges social media’s benefits to the legal profession, it focuses on the challenges it presents to maintaining one of the hallmarks of our justice system, i.e., a trial by a jury composed of competent, fair, and impartial individuals, unbiased and free from outside influence. This article discusses examples of the consequences posed by social media challenges, and litigation tips for adapting to counter the threat of injustice posed by jurors’ social media use.


Jury Trial Challenges Posed by Social Media Use
Given the rapid growth of social media and online networking, selecting an unbiased jury with little to no exposure to cases, issues, and/or individuals in a particular trial has become increasingly difficult. This particularly holds true for highly publicized cases, such as the Jodi Arias death penalty trial and, more recently, the trial of George Zimmerman, where opinion-driven media seemingly had spread to all areas of the web even before jury selection began.


In addition, concerns over the fairness of trial proceedings remain even once a jury has been impaneled. Jurors are charged with rendering a verdict at the end of trial based solely on the evidence presented and the law, as instructed by the judge, without regard to any outside influences. For that reason, jurors are instructed not to engage in any communications about a pending case, save for discussions with their fellow jurors during private deliberations. While it is inevitable that some jurors disregard these instructions and, for example, engage in such communications with family members at the dinner table, the widespread and extensive use of social networking sites has “exponentially increased the risk of prejudicial communication amongst jurors and opportunities to exercise persuasion and influence upon jurors.” United States v. Juror No. One, 866 F. Supp. 2d 422, 451 (E.D. Pa. 2011) (citation omitted). As one court recognized, the risk of exposure to prejudicial communication is exponentially higher “when a juror comments on a blog or social media website . . . given that the universe of individuals who are able to see and respond to a comment on Facebook or a blog is significantly larger.” United States v. Fumo, 655 F.3d 288, 305 (3d Cir. 2011), as amended (Sept. 15, 2011).


Examples of Consequences Resulting from Social Media Use by Jurors
A plethora of recent cases highlights the prevalence of social media use and juror misconduct, along with the costly (literally and figuratively) consequences that follow. In one instance, a Florida juror sitting on a civil trial was held in criminal contempt of court and incarcerated after contacting the defendant via Facebook after being dismissed from the jury. Martha Neil, “Juror Who Sent Defendant Facebook Friend Request and Joked About Being Booted by Judge Gets 3 Days,” A.B.A. J., Feb. 17, 2012. Several other instances involve jurors’ use of social media to, inter alia, connect with parties, counsel, judges, and witnesses, and divulge confidential information about the trial or deliberations and/or personal information of other jurors, as well as to offer opinions as to a party’s innocence or guilt prior to returning a verdict.


Perhaps the most noteworthy case involving juror misconduct and social media is Dimas-Martinez v. State, in which the Supreme Court of Arkansas overturned a murder conviction because a juror posted messages about the case on his Twitter account even after being reprimanded by the trial judge. 385 S.W.3d at 249. The court emphasized that jurors should “not be allowed to post musings, thoughts, or other information about trials on any online forums,” noting that “the possibility for prejudice is simply too high.” Id. at 248.
Although juror misconduct resulting from social media use does not always lead to strong consequences such as dismissal of a sworn juror, a mistrial, or even an overturned verdict, the potential for unfairness remains, undermining the integrity of our judicial system and placing the general public in distrust of this great American institution.


Countering the Effects of Social Media Use by Jurors
Litigators are in unique positions to counter any negative effects posed by social media use in jury trials, and may employ strategies before, during, and even after a trial to combat any unfairness or misconduct that may result from a juror’s social media use.


    Jury selection. Litigators may screen prospective jurors based on their social media profiles in an attempt to exclude those with undisclosed biases or prejudices. For example, potential jurors in the George Zimmerman trial were provided questionnaires that specifically asked whether the potential juror had used Facebook or received or posted information on the site about the February 2012 death of Trayvon Martin or the case against Zimmerman. Rachel Delinski, “Facebook Plays Role in Zimmerman Case, Jury selection,” Beacon Online, June 19, 2013. In addition, the New York City Bar opined that litigators may use social media websites for prospective juror research, as long as no communication occurs between the litigator and the prospective juror resulting from such research. Ass’n of the Bar of the City of N.Y. Comm. on Prof’l Ethics, Formal Op. 2012-2 (2012).


    Through voir dire, litigators have additional opportunity to screen potential jurors by questioning the social media websites they use, their Twitter “followers” or Facebook “friends,” the frequency with which they login to each site, and the frequency with which they post content on each site.


    Jury instructions. Litigators may propose specific jury instructions to counter any negative effects from social media use. In fact, the ABA’s Judicial Conference Committee on Court Administration and Case Management recently updated and released proposed model jury instructions designed to deter jurors from using social media to research or communicate about the cases on which they serve. Press Release, U.S. Courts, Revised Jury Instructions Hope to Deter Juror Use of Social Media During Trial (Aug. 12, 2012). These instructions explain that jurors must decide a case based solely on the evidence presented during the course of trial, and they also prohibit jurors from using social media to communicate about a case. Id. These instructions should be urged repeatedly throughout the course of the trial, including before trial, at the end of each day before jurors return home, at the end of a case, and at other times as appropriate.


    Additional safeguards. Litigators should employ additional safeguards, when necessary, to mitigate juror misconduct arising out of social media use. When circumstances warrant—for example, in high-profile courtroom battles—litigators should request the confiscation of electronic devices in the courtroom, request issuance of fines for violation of judicial instructions, file motions for contempt regarding any juror who violates instructions, and encourage a system to report any potential misconduct to guarantee, inter alia, the freedom of debate and independent thinking in the deliberation process.


Conclusion
Concerns of preserving the sanctity of our jury system are not new. But with the rapid infusion of social media into our daily lives, litigators are faced with new challenges to ensure their part in a fair and impartial trial process. Certain safeguards should be employed by litigators to ensure that jurors decide cases free from outside influence, i.e., social media. Specifically, litigators should properly screen jurors during jury selection; request certain jury instructions both before and after presentation of the trial to ensure that jurors understand the admonition against social media use; and, finally, request electronic device bans, fines, or contempt charges in appropriate instances. Litigators imposing such safeguards (in addition to those employed by judges and courtroom personnel alike) in turn assist the effort to combat any threat of injustice posed by jurors’ social media use.


Keywords: litigation, trial evidence, social media, trial by jury, fairness, prejudicial communication, jury misconduct, bias, jury selection, prejudice


Katie L. Dysart and Camalla M. Kimbrough are associates in Baker Donelson Bearman Caldwell & Berkowitz's New Orleans, Louisiana, office.


 
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