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March 2012

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This article is in the news archives --- for current news go to the Third Branch News.


Most Federal Judges Warn Jurors About Social Media

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Most federal judges have taken steps to ensure that jurors do not use social media to discuss the trial in which they are involved, a survey of trial judges in all of the nation’s 94 judicial districts indicates.

The Federal Judicial Center was asked by the Judicial Conference Committee on Court Administration and Case Management (CACM) to survey federal judges on the issue. Its report said that 94 percent of the 508 judges who responded said they formally have warned jurors about any case-connected use of social media.

“The most common strategy is incorporating social media use into jury instructions—either the model jury instructions provided by CACM or judges’ own personal jury instructions,” the report said.

“Also common are the practices of reminding jurors on a regular basis not to use social media to communicate during trial or deliberations, explaining the reasons behind the ban on social media, and confiscating electronic devices in the courtroom,” the report added.

As a result of the survey, CACM has asked a subcommittee to consider whether the model jury instructions the committee issued in December 2009 should contain additional language. The subcommittee also was asked to explore additional options mentioned by some judges, such as having jurors sign a pledge promising to avoid social media. (Read the existing model instruction at http://www.uscourts.gov/uscourts/News/2010/docs/DIR10-018-Attachment.pdf.)

The survey, conducted in October 2011, found that the detected use of social media by jurors during trials and deliberations is not a common occurrence. Of the 508 responding judges, only 30 reported any detected instances. Twenty-eight of those 30 judges said they discovered social media use in only one or two trials.

Of the 17 judges who described the type of social media used by jurors, three judges reported that a juror “friended” or attempted to “friend” one or more participants in the case, and three reported that a juror communicated or attempted to communicate directly with participants in the case. One judge reported that a juror revealed identifying information about other jurors.

Two judges described situations in which a juror contacted a party with case-specific information. In one, the juror contacted the plaintiff’s former employee to reveal a likely verdict. In the other, an alternate juror contacted an attorney during jury deliberations to provide feedback and the likely verdict.

Action taken by judges who learned of jurors’ social media use varied. Nine judges reported that they removed a juror from the jury; eight said they cautioned the wayward juror but allowed them to remain on the jury. Four judges declared mistrials because of such juror conduct; one judge held a juror in contempt of court; and one judge reported fining a juror.

Asked about what specific measures they had taken to prevent the use of social media by jurors, 60 percent of the judges who responded—304 judges —said they have used the model jury instructions during a trial, and most of them had used the instructions in both civil and criminal trials.

Confiscation of jurors’ telephones and other electronic devices at the start of each day of trial was a strategy employed by 113 judges, and 147 judges reported confiscating phones and other electronic devices during the jury’s deliberation.

“Although the use of social media is a relatively new phenomenon, judges have responded in timely fashion to address its use in the courtroom,” the report said. “. . . Judges admit that it is difficult to police jurors, and therefore use of social media is difficult to detect.”

The survey questionnaire was sent to all active and senior federal district judges, 952 in all. The response rate was 53 percent. The survey report is posted on the Federal Judicial Center’s website, at http://www.fjc.gov/public/pdf.nsf/lookup/dunnjuror.pdf/$file/dunnjuror.pdf.