New Threat to American Jurisprudence: Social Media.

October 20, 2015

In the days where the smartphone follows us around every moment of the day, there is an increasing potential for their use by jurors during trials. This poses a major threat of juror misconduct occurring. Juror misconduct happens when a juror discusses any part of the trial with another party.  Jurors are also not allowed to bring in outside information as evidence bearing on a potential outcome. So why does this suggest a potential problem?
A 2014 Pew Research Center study states that 74% of adults that are online, use social networking sites. Being constantly connected to one another through technology has become an integral part of our everyday lives. It has become an automatic behaviorthat has permeated our society, affected how we interact with each other and how we navigate our daily lives. Once behaviors become second nature, it takes a concerted effort to stop or limit that behavior. Thus, the temptation to “google” a defendant is now more prevalent than ever, as well as the possibility to post particular details of the case on Facebook. Furthermore, this may not be done maliciously, just simply part of a juror’s normal daily routine. Not realizing the implication of their actions, they simply act without contemplating their duty as a juror.
Juror misconduct initiates serious legal consequences for the defendant, plaintiff, lawyers, judges, and the entire justice system. The Federal Rules of Evidence established guidelines that must be followed before evidence is admitted into trial, for example, to avoid potential unfair prejudice toward the defendant, under Rule 403. The Rules of Evidence exist to uphold the Constitutional rights of individuals and preserve the propriety of American jurisprudence. One such example is if a juror assigns great value to information found online, that normally should and would be suppressed at trial due to hearsay issues. If a juror finds this information by “googling” a party to the case, the lawyers and judges may not be aware of this, and therefore will not be able to object to the introduction of this information. There is also a procedural error that may prevent justice from being delivered and could create inefficiencies in our justice system. If a juror’s misconduct is discovered after a conviction, the court’s only available course of action would be to reverse the conviction. It is plausible that the misconduct may never be discovered, due to the proliferation of online activity and the ease of anonymity the internet allows.
So how do we address the evolving issue of jurors using online social sites during trial? Some have suggested jurors sign a written agreement pledging to obey any instructions (regarding internet use) given by the court, illustrating the grave risks associated with this conduct.  Another suggestion is to remove the temptation altogether by restricting the WiFi access and blocking social media sites or confiscating mobile devices during trial. Judge Nygaard of the United States Court of Appeals for the Third Circuit, suggested, in an opinion, ways to stop jurors from engaging in juror misconduct, which go a step further.

Examples include “fining jurors, holding them in contempt, increasing the frequency of jury instructions, and screening out potential jurors during the voir dire process based upon their social media habits.”

Perhaps, all of this behavior can be prevented by simply educating the jury, explicitly through jury instructions with detailed explanation. This is the position the U.S. Judicial Conference Committeetook in 2012. However, as internet use continues to increase, Law Technology Todaywould like to see these instructions revised. Simply instructing jurors not to engage in a behavior is only half the task. People will be more inclined to follow instructions if they knew why it is so important. One possible instruction offered by Law Technology Today is: “I order you to decide the case only on the evidence presented at this trial. The reason is because the information from outside sources, both online and offline, might be wrong, incomplete, or inaccurate. I order you not to talk with anyone, other than your fellow jurors during deliberations, about this trial. The reason is because other people, whether they are talking to you in person or are an online friend, could bias your thinking.”
As technology continues to saturate every aspect of our lives, it is imperative that our legal system continues to evolve, procedurally, to continue to uphold the values of American jurisprudence.