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Posted by Christina Cribbs
It is no secret that electronic devices, such as smartphones and tablets like the iPad, play a large role in the way many people communicate with one another in today’s technology-driven society. Smartphones can be used for texting, internet browsing, keeping up with social media, and yes, even the occasional telephone call. Smartphones and tablets make the internet, and its vast network of information, available nearly any place and any time, including the jury room. Just as they are accustomed to doing in their everyday lives, jurors may want to seek out information or share their daily trial experiences using electronic devices and social media. The temptation to view the scene of an accident on Google Earth or even check out a YouTube video of a medical procedure must be enormous. However, central to preserving the integrity of a trial is the ability to limit the jury’s consideration to the evidence presented in the courtroom. The million dollar question then becomes: How do we stop jurors from using electronic devices and social media during trial and deliberations?

To help answer this question, the Judicial Conference Committee on Court Administration and Case Management (CACM) requested that the Federal Judicial Center (FJC) conduct a survey of district court judges to determine how often jurors use social media during trial and deliberations and the most effective measures for curtailing this conduct. The survey was answered by 508 district court judges from across the country. Only 30 judges reported use of social media by jurors during trial or deliberations. While the survey was clear that it measured only the judge’s experience and perception of jurors’ use of social media, rather than measuring the actual behavior, this number seems surprisingly low given the widespread use of social media in “outside world.”

Judges reported that jurors more often used social media during trial than during deliberation, and more often in criminal cases than civil cases. Jurors who used social media during trial or deliberation most often used Facebook and instant messaging services to communicate about the case. Responding judges reported that jurors used social media to post information about deliberations, “friend” trial participants, do case-related research, communicate general trial information, and even to allow a third-party to listen to live courtroom testimony. Judges most often learned about inappropriate social media use from other jurors serving on the panel.

Based on the findings of the FJC survey, CACM recently re-wrote and distributed an updated version of its Model Jury Instructions on the use of electronic technology and social media.

The August 21, 2012 version of CACM’s Instructions adds two significant provisions that were not included in the previous 2010 version. First, jurors are now instructed to notify the judge if they become aware that a fellow juror has broken the rules preventing the use of electronic devices and social media to communicate about the case or do case-related research. There was no equivalent provision in the prior version of the Instructions. Second, CACM added a full paragraph explaining the reasoning behind the social media ban in the courtroom and in the jury room. This new provision was likely influenced by the FJC study, which found that the most common measure taken by judges to deter the use of social media by jurors was providing a plain language explanation for the rule against the use of social media. Notably, although the FJC survey found that jurors were more likely to use social media during trial rather than during deliberations, the majority of the updates to the Model Jury Instructions were added to the portion of the Instructions applicable after the close of the case.

Since it is our belief that the improper use of technology and social media at trial is far more extensive than the study reveals, we suggest that counsel be aware of what is out there that could impact your case and to remind the trial judge to caution the jurors against using technology every time they leave the courtroom. It may, however, be an uphill battle.