The Judicial Conference Committee on Court Administration and Case Management (CACM) has proposed model jury instructions regarding electronic technology use during trial. They come in response to a recent study by the Federal Judicial Center that found social media misuse by jurors to be a real and significant (if manageable) problem.
These instructions are just the latest in a string of efforts by courts across the country to rein in social media use during trial. Although all such efforts emphasize the importance of preserving juror neutrality and avoiding improper influence and the appearance of impropriety, a few things stand out about these instructions. First is their repetition. The committee recommends that judges read these instructions to jurors "before trial, at the close of a case, at the end of each day before jurors return home, and other times, as appropriate." There was clearly a concern that once would not be enough, and that the warnings needed to be drilled into jurors' heads. Anecdotal evidence of juror misconduct certainly bears out that concern.
Second is the invitation to tattle on other jurors. The instructions convey that any juror who discovers a violation by another juror must report that to the court.
Third, the instructions have one significant hole in them. Although they are admirably broad in covering all of the various technological means that jurors might use to communicate about the case, the instructions do not say anything about using social media to communicate with litigants or attorneys in the case. That sort of behavior--e.g., jurors sending friend requests to defendants--has been a significant source of juror misconduct as well, and ought to be expressly prohibited.
Here are the model instructions in their entirety:
Proposed Model Jury Instructions
The Use of Electronic Technology to Conduct Research on
or Communicate about a Case
Prepared by the Judicial Conference Committee on
Court Administration and Case Management
June 2012
[Note: These instructions should be provided to jurors before trial, at the close of a case, at the end of each day before jurors return home, and other times, as appropriate.]
Before Trial:
You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in the case, and the individuals or corporations involved in the case. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Please do not try to find out information from any source outside the confines of this courtroom.
Until you retire to deliberate, you may not discuss this case with anyone, even your fellow jurors. After you retire to deliberate, you may begin discussing the case with your fellow jurors, but you cannot discuss the case with anyone else until you have returned a verdict and the case is at an end.
I know that many of you use cell phones, Blackberries, the internet and other tools of technology. You also must not talk to anyone at any time about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. 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, including Facebook, Google+, My Space, LinkedIn, or YouTube. You may not use any similar technology of social media, even if I have not specifically mentioned it here. I expect you will inform me as soon as you become aware of another juror’s violation of these instructions.
I hope that for all of you this case is interesting and noteworthy.
At the Close of the Case:
During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as the telephone, a cell phone, smart phone, iPhone, Blackberry or computer, the Internet, any Internet service, any text or instant messaging service, any Internet chat room, blog, or website such as Facebook, MySpace, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict. In other words, you cannot talk to
anyone on the phone, correspond with anyone, or electronically communicate with anyone about this case. You can only discuss the case in the jury room with your fellow jurors during deliberations. I expect you will inform me as soon as you become aware of another juror’s violation of these instructions.
You may not use these electronic means to investigate or communicate about the case because it is important that you decide this case based solely on the evidence presented in this courtroom. Information on the internet or available through social media might be wrong, incomplete, or inaccurate. You are only permitted to discuss the case with your fellow jurors during deliberations because they have seen and heard the same evidence you have. In our judicial system, it is important that you are not influenced by anything or anyone outside of this courtroom. Otherwise, your decision may be based on information known only by you and not your fellow jurors or the parties in the case. This would unfairly and adversely impact the judicial process.
