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Do judges who instruct jurors to avoid social media have an impact?

Monday, April 9, 2012
posted by Rita Handrich

Yes, says Amy St. Eve  (a federal judge in Chicago). While the judge doesn’t do either Facebook or Twitter herself, she has polled jurors in her courtroom by asking two questions embedded in a larger written survey:

“Were you tempted to communicate about the case through any social networks, such as Facebook, MySpace, LinkedIn, YouTube or Twitter?”

“If so, what prevented you from doing so?”

Judge St. Eve acknowledges the sample of 140 actual jurors from both civil and criminal trials (drawn from her courtroom and the courtroom of a colleague, her co-author) is not a scientific one and thus open to criticism around basic issues such as generalizability. She writes in the description of the survey itself: “We expect a Daubert challenge from some in the blogosphere”.

The findings were recently published in the Duke Law and Technology Review and give a positive response to the question of the influence of the courtroom judge on individual jurors. [She also cites our work on jurors and the internet so we know she’s done her homework!] The lengthy introduction to the survey results is a good review of what has been published on the issue to date.

The vast majority (92%) of the jurors completing the survey reported no temptation (none at all!) to communicate about a case through social media.

Only six of those completing the survey said they were tempted and four did not do so because of the judge’s orders. However, not one of these six reported they actually did communicate about the case via social media.

“Our key takeaway from the informal survey is that courts should routinely and frequently instruct jurors not to communicate about the case through social networking services, because jurors tend to follow the judge’s social media instructions.”

From our perspective, Judges St. Eve and Zuckerman’s survey results paint a very rosy picture indeed. We imagine there is pressure to report obedience when you are filling out a survey for the judge and a quick search of Twitter using the hashtag meant to group tweets together finds a plethora of tweets indicating jurors are being quite disobedient and sometimes quite amusing.

There is nothing funny, however, about mistrials resulting from social media quips and insults. What we do agree with the authors on is the right of the jurors to respect from the court. They quote Judge Linda Giles in a 2011 Boston Bar Journal column:

“If jurors are going to be asked to sacrifice some of their personal freedom and forego their case-specific e-mailing, texting, blogging, instant messaging and social networking for the duration of their service, they are entitled to a clear and thoughtful explanation of the reason.”

We would go even further than this. If Judge St. Eve and Judge Zuckerman have demonstrated the sort of thoughtfulness in the courtroom that their carefully prepared paper reflects–we would think their respective jurors probably do listen well and take their roles seriously.

We would urge Judges St. Eve and Zuckerman to carry their research to the next logical step and ask about doing internet research.  Our work with jurors suggests that this is a  much more pervasive temptation, and logically it is of greater potential harm to  justice. The prospect of a juror being guided by evidence gathered outside the courtroom (and outside the ability of the parties to challenge) needs to be thwarted, and a careful study of  how and when this occurs would help judges craft effective instructions.

Jurors are not easily fooled. When a judge carefully explains the rationale behind the ‘no social media’ or ‘no online research’ policy, it will make sense. Every juror can relate to the desire for a fair trial. The problem is that they  don’t have the experience as jurors or litigants to appreciate the reasons that justice is undermined when the rules are broken. The recent death penalty verdict overturned by a series of careless tweets, despite warnings by the judge to stop, only underscores the very real cost and unfairness of social media involvement in cases very serious to the parties involved.

St. Eve, A., & Zuckerman, MA (2012). Ensuring an impartial jury in the age of social media. Duke Law and Technology Review, 11 (1)

Read the full article here.


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