Wednesday, February 1, 2012
The Administrative Office of the U.S. Courts has recently announced the results of a study conducted by the Federal Judicial Center in which it found that the "vast majority" of federal judges expressly prohibit jurors from using social media to discuss the cases they are deliberating over. The BNA Electronic Commerce and Law Report has a summary of the report here (subscription required). Among the findings:
Communication of case-specific information by way of social media [among jurors] is very infrequently detected: Only 30 of the 508 responding judges say they have actually detected social media use by jurors. Nevertheless, about 94 percent of the 508 judges who responded to the survey have implemented measures to ensure jurors do not use social media in the courtroom.The strategies used by judges to restrict case-related social media communications include:• Use of model jury instructions. The U.S. Judicial Conference's model jury instructions distributed to judges in January 2010 address jurors' use of electronic technologies to research or communicate about a case. Sixty percent of responding judges said that they have actually used the model jury instructions during a trial. The majority of the judges who have used the model have instructed the jury on the issue both before trial begins and again before deliberations.• Use of other jury instructions. Of the judges who have not used the model jury instructions, the majority used a different set of instructions that addressed the use of e-technology by jurors, either instructions provided by their circuit, their court, or instructions they had written themselves.• Reminders to jurors. Federal judges reported using various other approaches in an effort to prevent misuse of social media by jurors, including informing jurors at voir dire and reminding them throughout the trial or deliberations about the social media policy, asking jurors to sign formal statements of compliance with the social media policy, and posting notices of the social media policy in jury assembly and deliberation rooms.• Confiscating e-devices in the courtroom. Approximately one quarter of the responding judges said that they confiscate jurors' cell phones and other electronic devices, with 22 percent of judges doing so at the start of each day of trial and 29 percent doing so during deliberations.
Social Media: Rarely Used or Rarely Detected?Of the 30 judges who have detected juror use of social media during trials and deliberations, 93 percent have encountered the practice in only one or two trials.Reported forms of social media use by jurors include Facebook, Twitter, instant messaging services, and internet chat rooms.Judges reported encountering social media use by jurors more during trials (23 judges reported at least one instance) than during deliberations (12 judges reported at least one instance), and more during criminal trials (22 judges reported at least one instance) than during civil trials (5 judges reported at least one instance).Reported social media misbehavior by jurors included:• “friending” or attempted “friending” of participants in the case;• communication or attempted communication directly with participants in the case;• posting of information about deliberations;• performing case-related research;• sharing general trial information such as the progress of the case; and• allowing another person to listen to live testimony.Judges acknowledged that it is difficult to detect jurors' inappropriate use of social media. Judges recounted learning of an incident when reported by another juror, an attorney, court staff, or a party or when the issue came up in post-trial motions or interviews. Only two judges said that they directly observed a juror's use of social media.Action by judges who have learned of jurors using social media in their courtrooms ranged from cautioning the juror to declaring a mistrial.