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The Advantage Blog

  • Tsongas Litigation Consulting


Updated: Jul 14, 2023

Consider for a moment how frequently you search the internet in a given day. While some of the searches are probably just for fun (like this one of bulldog puppies), most of your searches are probably conducted to learn more about a given topic. These days, it’s effortless and somewhat automatic given that nearly everyone has access to the internet and over half of adults have smart phones. Now consider the temptation that your jurors may face when they’re presented with legalese they don’t understand, or inadmissible facts are hinted at, or they simply want to know more about an expert witness.

Instances of juror misconduct involving social media use, juror internet use, or general media consumption are becoming more and more common (or perhaps are more easily discoverable) these days. Three jurors were recently dismissed from the James Holmes jury, after the judge suspected that they had potentially been biased by media reports.[1] One of the jurors had been told about a tweet that the prosecutor posted, and that juror subsequently talked about it to the other two jurors. Another recent verdict was overturned when the judge discovered that multiple jurors had done internet research on the defendant.[2]

Juror misconduct tends to get attention through headlines, but it’s hard to know exactly how prevalent it is. Most instances of juror misconduct are discovered because the jurors are policing each other. That is, one juror will slip up during deliberations and admit that they did internet research on the case, or went to the scene of the crime, or simply read a news article about the case, and that juror will get turned in by another juror.

A few years ago, the Federal Judicial Center conducted a survey of Federal judges to determine the prevalence of juror media use during trial and strategies for combating it.[3] The report indicates that most jurors do not use social media during trial, with only 6% of judges reporting that this occurred. Of course, this number should be taken with a grain of salt, since it is only the percentage of time that judges discovered that a juror has violated this part of their oath. It’s safe to assume that jurors violate this oath much more often than is noticed.

The report lists many of the strategies that judges have employed to help ensure jurors comply with the rules. Most judges used the model jury instructions that were distributed by the Committee on Court Administration and Case Management, or another set of instructions. Only approximately 6% of judges did not specifically address this issue with jurors (incidentally, this is not the same 6% who reported that jurors engaged in social media use or media consumption).

Other strategies for preventing jurors from using social media or seeking out extralegal information about the case included warning jurors of the personal consequences of violating this rule, confiscating cell phones during trial, and repeating the instructions throughout trial. As a social scientist with an interest in persuasion, I found the most interesting strategy a few judges used was to require the jurors to sign a statement or a pledge that they would not violate their instruction. It’s difficult to know whether any of these strategies are effective, or whether some are more effective than other, but I suspect that getting a signed agreement would be one of the better strategies. Getting a commitment from someone (verbally or in writing) has been shown to be an incredibly effective method for gaining compliance.

We’ve written before about the potential for instructions to backfire, but a strong admonition from a judge, along with a few other strategies listed here, will certainly help. The report contains instructions from a number of different judges that could be used as a recommendation for your judge if you are concerned about juror media use during trial. The most effective are likely the ones in which jurors are told why the instruction is important, and the consequences of violating it. For example, take this language from Judge Dale Fischer (who happens to be female):

“It is common for the media, whether television, radio, newspaper, or online source, to report about lawsuits, parties to lawsuits, witnesses in lawsuits, and their lawyers. This media coverage may be accurate or it may be inaccurate. For example, the media often refer to me as a man. The coverage may be complete and thorough, or it may be incomplete, and not thorough. The coverage may portray both sides of the story fairly, or it may be one-sided. If you do your own research, look on the internet, or view media coverage relating to this case, you will have no way of knowing whether what you are reading is accurate, complete, or fair.”

“In addition, the parties and the court will have no way of knowing what you have seen or read, and they will be deprived of the opportunity to confront and explain whatever is said in those accounts. And you will have more information—possibly inaccurate information – than your fellow jurors. That is why your information about this case must be limited to what is presented in this courtroom. That way, all the jurors will see and hear the same evidence, and the parties will have an opportunity to address that evidence, engage in cross-examination, and talk to you about the evidence in their opening statements and closing arguments. And you can’t fix the problem by sharing with your fellow jurors information that you shouldn’t have in the first place. A juror who violates these restrictions jeopardizes the fairness of these proceedings, and a mistrial could result. A mistrial means that no matter how far we are into the case, we have to start over. It means that the jurors, the court staff, the attorneys and the parties will have wasted their time. You will also have wasted the tax dollars—your tax dollars—that it takes to provide this trial.”

Finally, while you cannot possibly know if a juror is violating the instructions regarding researching the case on their own, you can make efforts to ensure that they are not violating the instruction to keep their thoughts and opinions to themselves during trial. If a juror has a public social media presence, it is best to regularly check on it. A number of cases have been overturned recently because a juror posted their thoughts to Facebook or Twitter.

[1] [2] [3]$file/dunnjuror.pdf


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