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November 26, 2013 Practice Points

Juror Use of Social Media: Closing the Evidentiary Back Door

By Emily J. Kirk

In "Juror Use of Social Media: Closing the Evidentiary Back Door," author Andrew B. Flake, a partner in the Atlanta, Georgia, office of Arnall Golden Gregory LLP, describes the problematic reality of juror access to social media and the harms it can cause to the trial process.  While eliminating juror access to social media is likely impossible, Flake provides several suggestions to trial counsel to address this growing issue.

Juror access to social media creates a host of risks to the trial process. The judicial system is set up such that parties to a jury trial have the right to expect that the only evidence considered by jurors is that which has been presented by the lawyers and approved by the court.  However, with most jurors having access to smartphones, jurors have the ability to access extra-judicial information immediately.  Jurors can scan news feeds, conduct their own research of a crime scene, and read commentary that may influence their views without lawyers being able to evaluate that influence. In such circumstances, the lawyers and the court have no way to control the accuracy of the information obtained. 

Beyond problems with accessing the Internet or reading social media, external communications are also a growing issue. If one juror posts about a trial and another juror happens to read it, there is an indirect circumvention of the prohibition against jurors discussing a case before deliberations. Jurors are prohibited from making up their minds about a case until the evidence is closed, but if a juror posts or expresses a view about a case, they are in violation of that duty.  It is also possible that witnesses and other parties to a trial may read postings and be unduly influenced.

To address these problems, Flake suggests trial counsel and the court utilize the following suggestions:

Preventative Measures
Trial counsel should start a dialogue early with opposing counsel and the court. Trial counsel can work to educate the court on these problems and the implications. With the court's leave, trial counsel can research the social media profile of prospective jurors and include appropriate topics in a juror questionnaire. For instance, trial counsel can ask jurors how many social media accounts they have, how often they post, user profile names, etc. The answers to these types of questions can identify jurors who may be at risk for inappropriate social media access and usage.

Jury Instructions
The court should provide and enforce detailed preliminary jury instructions concerning Internet and social media use.  The instructions should be comprehensive and identify the types of conduct that are prohibited.  The court should be encouraged to repeat these instructions throughout the trial.  Additionally, the court should explain to jurors why their conduct is restricted.  Jurors take their jobs seriously and understanding why social media access is unfair to the parties will help deter unauthorized research and posting.  The court should also warn jurors of the consequences of a violation, including the impositions of punishments like fines, contempt, or imprisonment. 

Dealing with Violations
Despite all precautions that may be taken, violations will still occur.  The burden of monitoring potential improper use of social media by jurors during trial will fall to trial counsel.  Someone on the trial team should, on a daily basis, run searches for party names and information about the trial, to identify whether or not any improper communications appears to be coming from jurors.

If a violation is discovered, a full assessment of the situation should be made.  If a material violation is discovered, the court will have a range of remedial options including removing a juror, issuing a curative instruction, or declaring a mistrial.  Unfortunately, some violations are not discovered until after a verdict is rendered.  If post-trial questioning is permitted, trial counsel should pose questions to determine whether anyone saw or read anything online about the trial or subject matter.  If evidence of a violation materializes, trial counsel may need to pursue a motion for a new trial if the circumstances demand it.

Keywords: litigation, solo practitioners, small firms, social media, Internet, juror, jury instructions, Trial Evidence Committee

Emily J. Kirk is with Thompson Coburn LLP in St. Louis, Missouri.

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