How do you stop two jurors from communicating with each other or with the outside world via Facebook or Twitter while sitting on a trial? That is the question some courts are beginning to ask themselves with the rising popularity of social media and the increasing accessibility of the Internet. In this day in age, when people are connected 24/7 through the use of laptops, netbooks, smartphones, tablets, etc., could a court reasonably expect to keep tabs on and prevent ex parte communications between jurors?
Some jurisdictions, such as the San Francisco Superior Court, have already adopted jury instructions which explicitly prohibit electronic communications between jurors. Courts in Georgia, Indiana, Florida, and Texas are all making updates to their instructions as well.
In January, the Model Jury Instructions were rewritten by the Judicial Conference Committee on Court Administration and Case Management to include language addressing juror’s use of electronic communication technologies. These instructions are now being recommended from the Federal level to all lower courts for express or modified adoption. This has been done not only to call attention to contact between jurors on social networking sites such as Facebook, Myspace, etc., but also to prevent jurors from using their cell phones or computers to connect with each other, publicize trial aspects or to do Internet research regarding the cases on which they serve. The instructions now read:
“You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any Internet chat room, or by way of any other social networking websites, including Facebook, MySpace, LinkedIn, and YouTube.”
It is incredibly important to the rules of justice that the jury decides the case based on the evidence presented to him within the four walls of the courtroom, and not by “googling” any term or doing any independent research on the case. No news articles or blog posts should be read. These infractions might seem minor, but the insulation of information from which a jury can draw on to decide a verdict is inherently essential to the function of the court system. If these rules were to be violated, not only would it prevent a defendant from getting his constitutionally guaranteed impartial trial by his peers, but it would be a waste of community resources. Careless or ignorant jurors could taint results and cause a mistrial, resulting in a trial start-over that wastes taxpayer time and money. Jurors also may be excluded from the case or fined for such conduct.
The question still remains, however, how exactly a court would enforce this new rule. Could jurors be forced to give up their login information and passwords? What if two jurors know each other, or are already “Facebook friends” or follow each other on Twitter prior to the trial? Even if login information could be collected, could personal inbox messages be screened without some sort of privacy invasion? What is a reasonable amount of surveillance compared to the threat that jurors are having unauthorized electronic contact? How likely is it that jurors are conducting independent research? As more jurisdictions consider and adopt or ignore these model jury instructions, these issues will continue to unfold as law and technology continue to intersect.