In the current age of digital and social media, juror use of social media is perhaps one of the greatest concerns facing courts and litigants. In this four-part series, Paul Zimmerman highlights some of the problems associated with juror use of social media, including juror misconduct, disregard for courts’ instructions, and impartiality. Paul offers suggestions for minimizing misconduct and stresses the need for specific jury instructions to address social media concerns.
Social media has been around in some form for several decades, but usage soared in the early 2000s with the creation of Facebook, Twitter, LinkedIn, Pinterest and blogs. And these social media sites can potentially affect every trial.
Today, social media is frequently the subject of discovery, and attorneys must contend with social media in the courtroom—both in terms of evidence being introduced and with the increasing prevalence of jurors commenting about trial proceedings through their cell phones. And the younger the user, the greater the likelihood of online connectivity. Judges and lawyers who do not use Facebook and do not tweet must still have the ability to address juror perspectives regarding social media and its use.
It is widely recognized that the same rules and requirements of evidence apply to digital communications—but the courts still wrestle with the increasing frequency of jurors communicating through social media during trial and about trial proceedings. Is jury communication through social media any different from the age-old problem of jury misconduct?
Addressing the challenges presented by social media requires appellate guidance and further research regarding jury perceptions of such issues. In the absence of empirical data, judicial remedies will be largely based on assumptions and preconceived notions concerning social media behavior – which may or may not be accurate. Regardless of whether jurors perceive social media differently from traditional communication, juror use of social media presents some different and potentially larger problems than traditional communication. Social media reaches more people with greater speed and its use has become ubiquitous. However, what drives jurors to communicate about the trial via social media may not be any different from the age-old need to prevent outside influence on the outcome of the trial.
This four-part series will examine the continuing development of jury charges and strategies that address new opportunities for jury misconduct through social media.
The hope is that empirical data regarding social media and juror misconduct will either confirm that emerging jury charges effectively limit juror exposure to influence through social media or will assist courts in further developing and refining charges by answering the question of whether the issues implicated by social media are really any different from traditional methods of communication.