By Dr. Ken Broda-Bahm:
The vast majority of jurors are conscientious and careful, and at least aim to be compliant with instructions. At the same time, there are a few examples in recent years that would seem to challenge that perception. For example, there is the widely reported story of the Miami mistrial in which fully nine of the twelve jurors admitted to using the internet to collect or share information. Or the UK juror who conducted on online poll asking her friends how she should vote in a child abduction and sexual assault case. Or the 2011 North Texas juror who Facebook "friended" the defendant during trial.
At this point, stories of the risks posed by social networks have successfully infiltrated the legal networks, and nearly all U.S. and state courts have adopted some form of instruction on the limits on jurors’ social media and internet use. And there is at least some research supporting the belief that these instructions work to a large extent. But a recent review of court practices across the country, by Florida Judge Antoinette Plogstedt (2013) and soon to be published in the Cleveland State Law Review, reveals that there is some spottiness to the instructions themselves. Nearly all will tell jurors to not communicate about the case, the parties, or the process via social media. Some, however, will communicate the reasons for that avoidance and others will not. Some will explicitly identify the main services to avoid – e.g., Google, Facebook, Twitter, and blogs – and others will not. Some will talk about the consequences of violating the instruction, like mistrial and sanctions, and others will not. Judge Plogstedt recommends a thorough and repeated instruction, and includes an example in the final appendix of her article, and also recommends adapting practices like juror note-taking, questions to witnesses, and predeliberation in order to address juror curiosity and need to be an active consumer without yielding to the temptation to violate their instructions. There are good reasons to believe that relatively rare situations of misconduct would be even more rare if the instructions were more specific and concrete. This post takes a look at Judge Plogstedt’s article and offers a checklist of the features every social media instruction should include.