I’m excited to report on the latest addition to the scholarship on jurors’ use of social media. As reflected in my Wassom on Social Media e-treatise, juror misuse of social media has been rampant, and courts have tried various strategies to mitigate the problem.
A new article called “More From The #Jury Box” by U.S. District Court Judge Amy J. St. Eve (author of this opinion on social media and publicity rights), Illinois Judge Charles P. Burns, and attorney Michael A. Zuckerman in the Duke Law & Technology Review presents the results of a survey of jurors in federal and state court on their use of social media during their jury service. The authors began surveying federal jurors in 2011 and reported preliminary results in 2012; since then, they have surveyed several hundred more jurors, including state jurors, for a more complete picture of juror attitudes toward social media.
This data is a delight to read, because it covers such a broad spectrum of respondents and conveys a very tangible sense of what it is like to be a juror in the social media age. Of course, it contains copious, colorful quotations of juror posts that were discovered during litigation. I was particularly intrigued by the responses of those who reported being “tempted” to post about their jury duty to the question “what prevented you from doing so?” Feedback like this supports what the authors describe as “the growing consensus that jury instructions are the most effective tool to mitigate the risk of juror misconduct through social media.”
They conclude with their own set of recommended best practices for using a social-media instruction. These include:
- Employ a Social-Media Instruction
- Instruct on Social Media Early and Often
- Make the Instruction Effective
Tips for achieving this latter goal include:
- Hit Social Media on Its Head (“Specificity is critical and is becoming the new reality in American courtrooms”)
- Include a Meaningful Explanation (“it is important to tell the jury why the restrictions exist.”)
- Remind Jurors of Their Oath and Its Importance (“Jurors generally want to do the right thing”)
- Don’t Forget the Basics (“social media is not the only vehicle through which they can commit misconduct”)
The article is quite succinct for a law review article, and makes for an informative read. I recommend it to anyone interested in the subject.