How serious of a problem is the use of social media by jurors? Intense reporting by news outlets and commentators (including me) could give the impression that it is a widespread phenomenon plaguing every court in the nation, and threatening to unravel the reliability of the entire jury system. Or is it just hype?
That's the question that the Federal Judicial Center recently set out to answer. The FJC is the research and education agency of the federal judicial system, established by Congress in 1967. Its purpose is to educate federal judges and court staff, research court operations, and develop recommendations for improvement.
To assess the scope of the juror social media problem, the FJC surveyed 508 federal district court judges across the country. The results--described in a November 22, 2011 report--may surprise some people. It concluded that "social media use by jurors is infrequent, and that most judges have taken steps to ensure jurors do not use social media in the courtroom."
So it's under control then, right? Maybe. But digging a little deeper into the data complicates that conclusion. First, the report is based entirely on the feedback of judges, which means it only reports social media use that got found out. This survey says nothing about juror posts that never got reported back to the judge. Given the number of other things that a court and lawyers have to manage during a trial and the decentralized, semi-private nature of social media, it's reasonable to suspect that the unreported social media use eclipses the instances that get discovered.
Second, the consequences of even one juror misusing social media remain high. In over 13% of reported cases, the juror's actions caused a mistrial. That means the hundreds of thousands of dollars of private money and public resources that had already gone into preparing witnesses and evidence, conducting the trial, and paying employees were wasted and had to be repent--all because one person couldn't resist sharing their thoughts on Facebook.
In 30% of reported cases, the judge removed the juror from the panel. 26.7% were cautioned, but allowed to stay on the panel. So regardless of how the trial finally resolved, this conduct likely gave the losing party one more argument to make on appeal--i.e., that the juror's actions tainted the result of the trial. In some cases, such as the recent decision in Diminas-Martinez v. Arkansas, 2011 Ark 515 (Dec. 8, 2011), this can mean that the entire trial is thrown out. Other recent appellate decisions in California, Connecticut, New Jersey, and the Third Circuit, among others, considered the argument but still upheld the decision. Even in these cases, however, thousands of dollars in extra attorney and judicial time was spent dealing with something that was entirely preventable.
Third, fully 94% of the judges surveyed said they had adopted measures to prevent jurors from misusing social media, such as adding extra jury instructions or giving frequent reminders. While these steps are low-cost, they again make the trial process that much more cumbersome, adding yet another layer of detail to a process that is already incomprehensible to many lay people.
In sum, this report underscores the prevailing wisdom that juror misuse of social media is a problem to be taken seriously and addressed where necessary. It doesn't pose a fundamental threat to our system of justice, which will adapt accordingly just as it has with previous challenges. Still, a little personal responsibility and decorum from jurors would go a long way toward making the system more efficient and fairer for everyone involved.
