Jurors, Internet Research and Social Media

Researchers

Cases of Internet-related juror misconduct fall into two main categories. The first involves using the Internet to research terms, concepts or factual issues that arise during a trial, while the second involves jurors using social media to communicate with parties or participants, or to express their feelings about the merits or progress of the trial. These two distinct forms of misconduct have different causes, involve different kinds of jurors, and present different kinds of challenges for the jury system.

Jurors who resort to the Internet for assistance in understanding the issues arising during a trial are generally conscientious individuals who take their role seriously and are determined to reach a just result. To reach these jurors, it is important to explain in plain language and common-sense terms the reasons behind the prohibition on outside research and the possible consequences ' both for the successful conduct of the trial and potentially for the jurors themselves ' if this prohibition is disregarded.

The confusion and frustration that commonly tempts jurors to resort to independent research outside the courtroom is best addressed by allowing jurors to advise the court if they have questions that counsel have not effectively answered. All of the federal courts that have considered the question have now held that it is within a district judge's discretion to allow jurors to submit questions during trials. United States v. Richardson, 233 F.3d 1285, 1288-89 (11th Cir. 2000) (collecting cases). A comprehensive study in September 2008 by the Seventh Circuit Bar Association found that this practice causes few problems and substantially increases jurors' comprehension and satisfaction with their experience. Particularly in longer or more complex trials, counsel should consider affirmatively urging the judge to permit jurors to submit questions for witnesses or counsel, if he or she does not already do so.

Too Plugged In

Jurors who engage in improper use of the Internet to communicate with participants in the trial or to trumpet their own feelings about the case or its progress present a different set of challenges. Some of these jurors fundamentally fail to appreciate the nature of their role; this group includes jurors who communicate suggestions in an attempt to help one party to the case, or who develop a personal interest in one of the parties or their counsel. A second group do not seem to understand that the celebration of “self” that social networking sites encourage and thrive upon needs to be dialed back once a person takes the oath as a juror.

These jurors appear to be either impulsive or simply lacking in maturity, and they may therefore be less responsive to a judge's precatory instructions. Counsel may wish to propose voir dire questions that ask if jurors frequently post updates about their daily activities through social networking sites, and whether they could comply with instructions requiring them to abstain from such postings with regard to the trial. This would provide the court another opportunity to emphasize the need for refraining from trial-related communications, as well as allowing counsel to evaluate whether venire members who are compulsive Twitterers, bloggers, or updaters of their Facebook status should be struck from the panel.

Court-Imposed Restrictions

Other practices that courts have experimented with or adopted in an effort to prevent Internet-related misconduct include depriving jurors of electronic communications devices, either while in court, during deliberations, or both. Such measures can never be fully effective, however, since jurors may always use their devices or computers to communicate or conduct research after the court day ends. And these practices will certainly add to many jurors' frustrations with jury duty, while also exposing the courts to the risk that jurors' personal property may be lost or damaged.

But the primary tool the courts have employed against Internet-related juror misconduct is the easiest and most obvious: broadening existing judicial admonitions against independent research or communications with trial participants or outsiders to encompass the new technologies of the digital age. It is an appellate commonplace that jurors are presumed to follow the instructions they receive (Zafiro v. United States, 506 U.S. 534, 540-41 (1993)), and a recent study by the Federal Judicial Center (FJC) suggests that this most basic of prophylactic measures may be having a positive effect.

In January 2010, the FJC's Committee on Court Administration and Case Management issued a model jury instruction that addressed the new technologies and temptations of the Internet age. Then, in October 2011, the FJC conducted a follow-up survey to assess the types and effectiveness of measures used by federal judges to discourage juror misconduct involving the use of social media. (The survey did not focus on jurors' use of the Internet as a research tool, although some judges provided responses addressing this type of misconduct as well.) Just over half of all active and senior federal district court judges responded, and the results were encouraging. (The FJC's model instruction is available online at www.uscourts.gov/uscourts/News/2010/docs/DIR10-018-Attachment.pdf), while the report of the follow-up survey can be found at www.fjc.gov/public/pdf.nsf/lookup/dunnjuror.pdf/$file/dunnjuror.pdf.)

The judges' responses indicated that detected instances of jurors improperly using social media to communicate during trials were relatively rare: only 30 judges (6%) reported such experiences, and most had encountered this problem only once or twice. Six of the 30 reported instances of misconduct involved jurors “friending” or otherwise attempting to contact directly participants in the trial, including two reported instances of jurors contacting a party or an attorney with information about the likely outcome.

Three instances were reported of jurors publicly posting information about the progress of deliberations, but none of these involved the disclosure of confidential information or expected outcomes. Nine judges reported dismissing a juror due to improper use of social media, but only four judges out of the 508 responding reported that they had declared a mistrial based upon jurors' use of social media.

Fully 94% of the responding judges reported taking steps to discourage jurors from improper use of social media. The most popular preventative measure was the FJC's model instruction, although a number of judges had independently developed their own preferred alternatives. The judges acknowledged some level of uncertainty about the effectiveness of these admonitions, with roughly half opining that the instructions were effective and the other half admitting that they could not be completely sure. But the reported instances of discovered misconduct were so few as to suggest that fears of an epidemic of Internet-related misconduct have been overstated.

Further support for this conclusion can be found in a study conducted by Reuters Legal in late 2010 using searches in both federal and state court directories on WestLaw. The Reuters study reported that, over the previous decade, at least 90 verdicts had been challenged based upon Internet-related juror misconduct, with more than half of those instances occurring in the previous two years alone. Mistrials were granted in 28 cases, with 21 of those occurring in 2009 and 2010. While initially startling, when considered against the total number of state and federal court jury trials occurring each year, these numbers are hardly overwhelming. Moreover, they happened at a time when judges were only just beginning to appreciate the need for special measures to discourage Internet-related juror misconduct.

Conclusion

Going forward, counsel will need to continue to work with the courts to ensure that jurors properly understand their obligations and refrain from misuse of the Internet while serving. But as Senior U.S. District Court Judge John L. Kane, Jr. of Colorado has observed, the emerging evidence suggests that the phenomenon of Google or social media mistrials “is correctable with an appropriate amount of energy and a willingness to try cases other than as they were tried in the reign of Henry IV.”

Jefferson M. Gray (Jefferson.M. [email protected]), a member of this newsletter's Board of Editors, is an Assistant U.S. Attorney in the District of Maryland. This article reflects only his individual analysis and conclusions and does not purport to speak for the Department of Justice or any of its divisions.

Starting three years ago, so-called “Google mistrials” ' soon supplemented by Facebook and Twitter mistrials ' became a hot media topic as accounts began to surface of trials torpedoed or threatened by jurors' use of the Internet to conduct improper trial-related research or to communicate about the trial's progress, the evidence, or the jury's deliberations. Initially publicized by a widely noted story in The New York Times in March 2009, this phenomenon has since been the subject of articles in practically every bar publication that includes litigators among its target audience.

The federal courts and more than 30 states subsequently adopted model jury instructions warning jurors against improper Internet use, and some have implemented policies restricting jurors' access to electronic communications devices during trials. A handful of jurors have been sanctioned for Internet-related misconduct, and courts have begun to issue decisions reflecting the collision between young, tech-savvy “digital natives” summoned to jury duty and the traditional rules governing juror research and communications. See, e.g., United States v. Fumo , 655 F.3d 288 (3rd Cir. 2011) (affirming the denial of a mistrial in a high-profile public corruption case where a juror made a succession of trial-related posts on his Facebook wall and also tweeted as the verdict approached); United States v. Juror Number One , ___ F. Supp.2d ___, 2011 WL 6412039 (E.D. Pa. Dec. 21, 2011) (dismissed juror was fined $1,000 for communicating her views about the appropriate outcome of the case to a still-sitting juror, who indicated she would “share your message with the gang”); Dimas-Martinez v. State, 2011 WL 6091330 (Ark. Dec. 8, 2011) (reversing a trial judge's decision denying a mistrial in a capital case where a juror sent tweets while the jury was deliberating).

The evidence now emerging from court decisions, judicial surveys, and other studies suggests that while new communications technologies and the Internet's research capabilities will present an ongoing challenge for the jury trial system, the initial blare of publicity about Google, Facebook and Twitter mistrials may have been unduly alarmist. There will continue to be occasional proceedings that go off the rails because of Internet-related misconduct by jurors. But as long as both advocates and judges remain sensitive to the risks of such episodes and cooperate to address them, the jury trial system should be able to successfully manage the challenges spawned by the communications revolution of the past two decades.

Researchers

Cases of Internet-related juror misconduct fall into two main categories. The first involves using the Internet to research terms, concepts or factual issues that arise during a trial, while the second involves jurors using social media to communicate with parties or participants, or to express their feelings about the merits or progress of the trial. These two distinct forms of misconduct have different causes, involve different kinds of jurors, and present different kinds of challenges for the jury system.

Jurors who resort to the Internet for assistance in understanding the issues arising during a trial are generally conscientious individuals who take their role seriously and are determined to reach a just result. To reach these jurors, it is important to explain in plain language and common-sense terms the reasons behind the prohibition on outside research and the possible consequences ' both for the successful conduct of the trial and potentially for the jurors themselves ' if this prohibition is disregarded.

The confusion and frustration that commonly tempts jurors to resort to independent research outside the courtroom is best addressed by allowing jurors to advise the court if they have questions that counsel have not effectively answered. All of the federal courts that have considered the question have now held that it is within a district judge's discretion to allow jurors to submit questions during trials. United States v. Richardson , 233 F.3d 1285, 1288-89 (11th Cir. 2000) (collecting cases). A comprehensive study in September 2008 by the Seventh Circuit Bar Association found that this practice causes few problems and substantially increases jurors' comprehension and satisfaction with their experience. Particularly in longer or more complex trials, counsel should consider affirmatively urging the judge to permit jurors to submit questions for witnesses or counsel, if he or she does not already do so.

Too Plugged In

Jurors who engage in improper use of the Internet to communicate with participants in the trial or to trumpet their own feelings about the case or its progress present a different set of challenges. Some of these jurors fundamentally fail to appreciate the nature of their role; this group includes jurors who communicate suggestions in an attempt to help one party to the case, or who develop a personal interest in one of the parties or their counsel. A second group do not seem to understand that the celebration of “self” that social networking sites encourage and thrive upon needs to be dialed back once a person takes the oath as a juror.

These jurors appear to be either impulsive or simply lacking in maturity, and they may therefore be less responsive to a judge's precatory instructions. Counsel may wish to propose voir dire questions that ask if jurors frequently post updates about their daily activities through social networking sites, and whether they could comply with instructions requiring them to abstain from such postings with regard to the trial. This would provide the court another opportunity to emphasize the need for refraining from trial-related communications, as well as allowing counsel to evaluate whether venire members who are compulsive Twitterers, bloggers, or updaters of their Facebook status should be struck from the panel.

Court-Imposed Restrictions

Other practices that courts have experimented with or adopted in an effort to prevent Internet-related misconduct include depriving jurors of electronic communications devices, either while in court, during deliberations, or both. Such measures can never be fully effective, however, since jurors may always use their devices or computers to communicate or conduct research after the court day ends. And these practices will certainly add to many jurors' frustrations with jury duty, while also exposing the courts to the risk that jurors' personal property may be lost or damaged.

But the primary tool the courts have employed against Internet-related juror misconduct is the easiest and most obvious: broadening existing judicial admonitions against independent research or communications with trial participants or outsiders to encompass the new technologies of the digital age. It is an appellate commonplace that jurors are presumed to follow the instructions they receive ( Zafiro v. United States , 506 U.S. 534, 540-41 (1993)), and a recent study by the Federal Judicial Center (FJC) suggests that this most basic of prophylactic measures may be having a positive effect.

In January 2010, the FJC's Committee on Court Administration and Case Management issued a model jury instruction that addressed the new technologies and temptations of the Internet age. Then, in October 2011, the FJC conducted a follow-up survey to assess the types and effectiveness of measures used by federal judges to discourage juror misconduct involving the use of social media. (The survey did not focus on jurors' use of the Internet as a research tool, although some judges provided responses addressing this type of misconduct as well.) Just over half of all active and senior federal district court judges responded, and the results were encouraging. (The FJC's model instruction is available online at www.uscourts.gov/uscourts/News/2010/docs/DIR10-018-Attachment.pdf), while the report of the follow-up survey can be found at www.fjc.gov/public/pdf.nsf/lookup/dunnjuror.pdf/$file/dunnjuror.pdf.)

The judges' responses indicated that detected instances of jurors improperly using social media to communicate during trials were relatively rare: only 30 judges (6%) reported such experiences, and most had encountered this problem only once or twice. Six of the 30 reported instances of misconduct involved jurors “friending” or otherwise attempting to contact directly participants in the trial, including two reported instances of jurors contacting a party or an attorney with information about the likely outcome.

Three instances were reported of jurors publicly posting information about the progress of deliberations, but none of these involved the disclosure of confidential information or expected outcomes. Nine judges reported dismissing a juror due to improper use of social media, but only four judges out of the 508 responding reported that they had declared a mistrial based upon jurors' use of social media.

Fully 94% of the responding judges reported taking steps to discourage jurors from improper use of social media. The most popular preventative measure was the FJC's model instruction, although a number of judges had independently developed their own preferred alternatives. The judges acknowledged some level of uncertainty about the effectiveness of these admonitions, with roughly half opining that the instructions were effective and the other half admitting that they could not be completely sure. But the reported instances of discovered misconduct were so few as to suggest that fears of an epidemic of Internet-related misconduct have been overstated.

Further support for this conclusion can be found in a study conducted by Reuters Legal in late 2010 using searches in both federal and state court directories on WestLaw. The Reuters study reported that, over the previous decade, at least 90 verdicts had been challenged based upon Internet-related juror misconduct, with more than half of those instances occurring in the previous two years alone. Mistrials were granted in 28 cases, with 21 of those occurring in 2009 and 2010. While initially startling, when considered against the total number of state and federal court jury trials occurring each year, these numbers are hardly overwhelming. Moreover, they happened at a time when judges were only just beginning to appreciate the need for special measures to discourage Internet-related juror misconduct.

Conclusion

Going forward, counsel will need to continue to work with the courts to ensure that jurors properly understand their obligations and refrain from misuse of the Internet while serving. But as Senior U.S. District Court Judge John L. Kane, Jr. of Colorado has observed, the emerging evidence suggests that the phenomenon of Google or social media mistrials “is correctable with an appropriate amount of energy and a willingness to try cases other than as they were tried in the reign of Henry IV.”

Jefferson M. Gray (Jefferson.M. [email protected]), a member of this newsletter's Board of Editors, is an Assistant U.S. Attorney in the District of Maryland. This article reflects only his individual analysis and conclusions and does not purport to speak for the Department of Justice or any of its divisions.