In an informal study on juror attitudes toward social media, U.S. District Judge Amy J. St. Eve of the Northern District of Illinois, Judge Charles P. Burns of the Circuit Court of Cook County, and Jones Day associate Michael A. Zuckerman, have surveyed 538 jurors to date. The study began with a small pool of federal jurors in 2011 and has been expanded by several hundred jurors, including state court jurors. The updated findings are published in the Duke Law & Technology Review, in an article titled "More From The #Jury Box: The Latest on Juries and Social Media." The authors urge the judiciary to employ specialized instructions strongly, and frequently, in order to combat the risks of juror misconduct. But is this enough?
According to Judge St. Eve, "a small but significant number of jurors . . . were tempted to communicate about the case through social media. Almost all of these jurors ultimately decided not to do so because of the court's social media instruction."
That finding is telling considered against present practices and the future jury pool.
As one reputable blog noted in May 2012, model instructions prohibiting the use of social media to research or communicate about a case were distributed to the federal bench in 2010. In a study conducted by the Federal Judicial Center in late 2011, nearly all (94 percent) of the responding judges indicated they were aware of the model instruction. Yet, astoundingly, almost half (40 percent) of the judges reported that they do not routinely issue the instruction.
That silence is startling in view of Judge St. Eve's findings.
When "asked what 'prevented' them from communicating about the case on social media," the vast majority of jurors cited "the court's social-media instruction." For example, one juror reported that she "wanted to talk about the case on Facebook," but refrained from doing so "because of 'the Judge's orders.'" Those sentiments were echoed by other jurors who credited an explicit instruction with their decision to refrain from social media (i.e., "Because the Judge instructed us not to," "We were told not to," and "I was tempted but told not to, so I followed the rules").
With an eye toward the future, Judge St. Eve urges courts to institute "best practices" in order to ensure an impartial jury in the age of Facebook and Twitter. She notes that repetition is important, particularly in lengthier trials, quoting jurors who attributed their restraint to the judge's "daily warnings," and "repeated directions not to communicate about the case on social media."
Additionally, Judge St. Eve sheds light on the tip of a potential iceberg.
The average juror in the United States is over 35. As such, jurors are overwhelmingly comprised of baby boomers and Gen Xers. Those generations were not raised on modern technology or social media but have adapted. Yet they are able to recall a world without mobile phones and Facebook. As the jury pool cycles to include Generation Y and millennials, that will not be the case. The jury pool will eventually be comprised of generations who have never known a world without social media, likely held their first tablet as a toddler, and obtained their grade school homework via Twitter.
As strong as a verbal instruction may be, the mere request to eliminate a formative, self-defining facet of one's life may not be enough. Just as social media is a learned behavior and cultural expression, so too is hand gesturing and eye contact. If someone, even a judge, asked you to cease all hand movements while speaking, could you do that? Have you tried? At some point, deeply engrained cultural behaviors become so entwined with our ability to function that stopping is not an option, even if desired. The task of isolating a habitual, "reflexive" behavior is complex.
In response, courts in New Jersey have begun to institute practices of their own. For example, in Mercer County, one jury manager collects all laptops and tablets at the door, and ensures that jurors to turn off their mobile phones before entering the courtroom. A judge in the same court has instituted a pledge in which jurors agree in writing, under penalty of perjury, not to engage in any online communication pertaining to their trial.
While best practices may require a more invasive intervention, Judge St. Eve's words resound: “Born out of a common-law tradition and guaranteed by the U.S. Constitution, the impartial jury is one of the most fundamental American institutions. It is also one of the most resilient. The impartial jury has survived the telephone, the radio, the automobile, and the television. There is no reason why it cannot survive Facebook and Twitter."
Author: Christine Emery