The impact of social media such as Twitter, Facebook and Google+ and others on federal juries is a concern that judges are frequently taking steps to curb.
According to a study 94% of the 508 federal judges who responded said they have specifically barred jurors from any case-connected use of social media. The Federal Judicial Center was asked by a committee of the policy-making Judicial Conference of the United States to survey all 952 federal judges, of whom 53% responded on the issue.
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"The most common strategy is incorporating social media use into jury instructions - either the model jury instruction provided by (the Conference's Committee on Court Administration and Case Management) or judges' own personal jury instructions," the report said. "Also common are the practice of reminding jurors on a regular basis not to use social media to communicate during trial or deliberations, explaining the reasons behind the ban on social media, and confiscating electronic devices in the courtroom."
Some of the findings from the study included:
- Of the 17 judges who described the type of social media use jurors engaged in during trials and deliberations, three judges reported that a juror "friended" or attempted to "friend" one or more participants in the case, and three reported that a juror communicated or attempted to communicate directly with participants in the case.
- Of the 30 judges who have detected juror use of social media during trials and deliberations, the majority (28 judges, or 93%) have seen social media use by a juror in only one or two trials. The instances of social media use were more commonly reported during trials (23 judges reported at least one instance) than during deliberations (12 judges reported at least one instance), and were more commonly reported during criminal trials (22 judges with experience) than during civil trials (5 judges). Three judges encountered jurors using social media during both criminal and civil trials.
- While three judges reported that jurors used social media to post information about a deliberation, none of the responding judges reported any instance in which a juror used social media to divulge confidential information about a case. One judge did report, however, that a juror revealed identifying information about other jurors. Judges could select "other" as an option for identifying additional ways in which jurors inappropriately used social media; the eleven who did listed case-related research (five judges), sharing general trial information such as the progress of the case (four judges), allowing another person to listen to live testimony (one judge) and conducting personal business (one judge).
- In an open-ended follow-up question, judges could describe more fully the ways in which jurors have used social media during trials and deliberations. Overall, the 13 judges who responded to this question reported that jurors share both case-specific information and more generic information about jury service in general during the progress of the trial. Two judges reported jurors sharing non-confidential information about a case (one in a personal blog), and two judges reported jurors sharing information about their jury service in general.
- Though the incidence appears to be small, the judges' responses reveal that at least some jurors have revealed case-specific information through social media. Two judges described situations in which a juror contacted a party with case-specific information. In one, the juror contacted the plaintiff's former employee to reveal likely verdict; in the other, an "alternate juror contacted an attorney via Facebook during juror deliberations to provide feedback and [the] likely outcome."
- When judges have learned of jurors using social media in their courtrooms, reactions have differed. Nine judges (30% of the 30 judges with experience) removed the juror from the jury, and eight judges (27%) chose to caution the juror but allowed him or her to remain on the jury. Four judges declared a mistrial in cases in which jurors used social media during trials and deliberations.
- While strategies differ about when and how to instruct juries about the social media ban, the study found 39% of judges (199 judges) remind jurors at voir dire to refrain from using social media while serving as a juror, and 20% (103 judges) alert the jury about the personal consequences of inappropriate social media use (i.e., personal fines or being held in contempt of court).
- Approximately one quarter of the responding judges reported confiscating cell phones and other electronic devices, with 22% (113 judges) doing so at the start of each day of trial and 29% (147 judges) doing so during deliberations. Few judges ask jurors to sign formal statements of compliance; only 3 judges indicated they required jurors to sign a statement of compliance, and 3 indicated they required jurors to sign a written pledge. Other strategies for preventing jurors' use of social media include administering a separate oath to jurors (5 judges) and posting reminders in jury assembly and deliberation rooms (3 judges).
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