USE OF SOCIAL MEDIA AND OTHER INTERNET SERVICES by jurors has caused a minor earthquake for trial lawyers and judges. The past few years have seen an increasing incidence of juror misconduct using social networking sites such as Facebook, Twitter, YouTube, and LinkedIn.1 Social networking sites provide jurors with not only another means for independent research but also a new venue for unauthorized communication. Improper use of social media can expose jurors to extraneous prejudicial information from their Facebook friends or Twitter followers, constitute prohibited ex parte communication, and, in some cases, subjects jurors (rightfully) to judicial inquiry.
Sensationalistic stories of jurors misusing social media appear regularly.2 And the rate at which verdicts are challenged on the basis of juror misuse of the internet has increased.3 With every trial that takes place, more judges and trial attorneys experience firsthand how internet use affects jury trials. As my one “war-story” for this article, a jury panel member in a recent trial commented during voir dire and in the presence of other members of the jury panel that he questioned why the case was being tried in an American court rather than in a Mexican court. The tone of this comment seemed more like that of an informed opinion than an innocent query. And it was. Counsel and the judge later questioned the gentleman separately and learned that he had researched pleadings on the court’s website during the weekend after receiving the jury panel questionnaire. The panel member had read pretrial briefing and disagreed strongly with the court’s rulings on earlier-filed motions to dismiss: an easy strike for cause.
Use of social media by jurors during trial has prompted initial, but not comprehensive, study among professional and academic communities on how to best address juror Internet use. Solutions commonly suggested in the literature include restricting access to the Internet (whether by sequestration or prohibition of electronic device use in the courthouse), penalizing jurors who improperly use the Internet, investigating juror Internet use, modifying jury instructions, and most controversially, implementing a variety of “active jury” reforms such as permitting jurors to ask questions of witnesses. Before attorneys, judges, and policy makers decide on how to best approach this issue, however, they should consider first how much we actually know about jurors’ online behavior. The data is less than complete.