Jurors’ use, or I should say misuse, of social media such as Twitter and Facebook during trials is leading to the overturning of court rulings, convictions and mistrials. These improper juror postings on social media websites is yet another weapon in attorneys’ arsenals for creating grounds for an appeal. Criminal defense lawyers, among others, comb through Facebook and Twitter entries for comments from jurors, and if they find such postings, they argue for the overturning of a criminal conviction.
Approximately two years ago, the federal judiciary finally woke up to the issue of jurors’ use of social media during trials, and the U.S. Judicial Conference, the policy-making body of the federal courts, released the following model jury instructions:
You may not communicate with anyone about the case on your cellphone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, MySpace, LinkedIn and YouTube.
U.S. District Court Judge Robinson of Kansas, the chair of the Judicial Conference Committee on Court Administration and Case Management, explained that these model jury instructions
address the increasing incidence of juror use, of such devices as cellular telephones or computers, to conduct research on the internet or communicate with others about cases…more explicit mention in jury instructions of the various methods and modes of electronic communication and research would help jurors better understand and adhere to the scope of the prohibition against the use of these devices.
There is no uniform jury instruction for state courts on a nationwide basis because each state has its own set of jury instructions.
Using social media during a trial is very enticing to jurors. The use of smartphones to communicate on social media websites has made it so much easier for jurors to violate the rules of conduct during a trial which prohibit them from discussing the trial. Even if a court bans jurors from using their smartphones while they are sitting through trial testimony, courts do not restrict the use of such smartphones outside of the courtroom. Indeed, it would be hard, if not impossible, for the court to prohibit a juror’s use of smartphones once they leave the confines of the courthouse.
While not everyone is addicted to Tweeting and Facebook posting, approximately 66% of adult internet users use social media, according to a Pew Research Center survey. The popularity of these sites make it incredibly difficult to police a juror’s conduct vis a vis social media communications during the trial.
Typically, judges instruct jurors at the outset of a trial that they must decide the facts of the case based solely upon the evidence presented inside the courtroom. The jurors are not allowed to do their own research into the topics at issue, and they cannot communicate with anyone (except for their fellow jurors during jury deliberations) about the trial. This ban extends not just to interpersonal communications but also, as can be seen from the aforementioned federal model jury instructions, to using social media to communicate with people about the ongoing trial. Naturally, courts are worried about what might be said online about the case and whether such utterances reveal a bias about the case before all the facts have been presented and the jury has rendered its verdict. Therefore, even the most innocuous postings about an ongoing trial are prohibited. It leads people to wonder what other communications the juror might have had regarding the trial, and it also raises the question whether a juror is even capable of following the most basic instructions.
One famous case involving jurors’ use of social media involved the corruption trial of former Mayor Dixon of Baltimore, Maryland. During the trial and before jury deliberations, jurors improperly communicated with each other on Facebook. When the improper activity was revealed, the mayor-defendant sought a new trial. The jurors were not sanctioned in any way because they reached a plea deal.
The reason jurors’ use of social media is so problematic is because it is hard to discover. The overwhelming majority of judges who responded to a survey by the Federal Judicial Center conducted several months ago indicated that they had no way of knowing whether jurors were using social media during a trial or not. Unless someone on behalf of the court gained access to a juror’s postings (which might be restricted and hence unavailable) and combed through them to reveal improper postings about the trial, the judges would have no way of knowing about a juror’s improper use of social media.
In the case of the corruption trial against the former Baltimore mayor, a reporter did the legwork and found the improper Facebook posts. In the Arkansas case, where the criminal conviction was overturned, someone on the defense team found the juror’s tweets.
The trend of jurors’ use of social media during a trial is growing at an alarming rate, and attorneys and judges are grappling with the problem of how to deal with the issue when it arises and how to prevent it from occurring in the future.
The aforementioned Federal Judicial Center survey of federal judges revealed that 31% of the judges surveyed would remove the juror from the trial if it was discovered that he was using social media during the trial. 27% of the judges surveyed would caution the juror but allow him to remain in the trial; 13% would declare a mistrial; 3% would hold the juror in contempt of court, 3% would fine the juror and 23% would take other measures.
Although judges have some discretion regarding how to handle the situation, courts can mete out harsh punishment if they catch a juror using social media during the trial. For example, a Florida court recently held a juror in contempt and sentenced him to three days jail time after he inappropriately used Facebook to ‘friend’ a defendant in the personal injury case on which he was a juror. In another case, a Texas judge sentenced a juror to two days community service for “friending” the plaintiff in a car accident case. A state appeals court in Sacramento is in the process of deciding whether a juror in a gang-beating case must disclose his Facebook records to defense attorneys who are seeking to overturn their clients’ convictions because of the jurors’ use of social media during the trial. Such juror misbehavior does not always result in a mistrial, however. During the prosecution of former Pennsylvania state senator Vincent Fumo for graft a juror was found to be tweeting and publishing trial updates on Facebook. The court rejected a request for a mistrial.
The Arkansas case involving the overturning of the criminal conviction presented an even more outrageous situation. The juror in question had previously been reprimanded by the trial judge after his use of social media came to light. The judicial reprimand did not stop him though. He continued to tweet. On the day the jury returned the guilty verdict, which carried a death sentence, the juror in question sent at least two tweets, one of which suggested what the verdict was before it was made public. As a result, the Arkansas Supreme Court overturned the conviction and ordered a retrial. The tweeting, according to the Supreme Court, amounted to jury misconduct. Surprisingly, the juror was not punished for his misconduct.
One proposed method of preventing such juror misconduct is to have the court require jurors to disclose their i.d.’s on social media websites before the trial commences so that their activity on such sites can be monitored during the trial. This is not a fool proof method since it relies on the integrity of the jurors to disclose accurately and fully their social media i.d.’s.
What steps would you suggest courts undertake to prevent jurors from using social media to communicate during trials?