Social Media’s Attack On The Impartial Jury

If you have ever had jury duty, followed a high-profile case or just watched a half-way realistic lawyer show, you are probably aware that jurors are not supposed to discuss their trial with anyone until after the trial is over. In fact, they are not even supposed to discuss the trial with fellow members of the jury until it is time deliberate over a verdict. Additionally, if jurors have a relationship with any of the parties involved in a trial, they must disclose this information. On the surface, these instructions seem pretty clear. Most jurors do not think they can call their friends to talk about the case or hide a past relationship with a defendant. For those few people who might think this is okay, the judge instructs everyone not to just to be on the safe side.

However, as a new study entitled “More From The #Jury Box” shows, social media has blurred what were once clear lines. Social media is threatening one of America’s most fundamental legal institutions: the impartial jury. In this post, we will highlight some of the trials social media has hindered in the past two years, the findings from the “More From The #Jury Box” study and its suggestions on how to keep the impartial jury intact.

In Stave v. Smith, the Tennessee Supreme Court decided on how a trial court should handle a situation when it discovers “during a jury’s deliberations that a juror exchanged Facebook messages with a witness.” The problem occurred during a murder trial where the medical examiner turned out to know at least one of the jurors. The medical examiner was affiliated with Vanderbilt University, and so were four of the jurors. However, none of them were asked if they knew the medical examiner specifically. During the deliberation, one of the jurors messaged the medical examiner explaining what a great job she did on the witness stand.

At some point, the judge found out, and while he did tell the opposing counsels, he let the deliberations continue. The jury returned a verdict of first-degree murder and the man was sentenced to life in prison. The defense attorney appealed the case, and although it was upheld at the appellate level, the Tennessee Supreme Court remanded the decision. The Tennessee Supreme Court stated that jurors must “base their verdict solely on the evidence introduced at trial” and if there is any inappropriate communication between a juror and another person, then the trial court must “assure that the juror has not been exposed to any improper information or influence.” The case was remanded to conduct a hearing about the communication between the juror and the medical examiner. Regardless of whether or not the conviction is eventually upheld , the immense amount of cost in time and money to all parties involved is staggering. All of which could have been avoided, if the juror just refrained from her Facebook account.

Speaking of Facebook, how many friends would you say you have on there? Now, how many of those people do you actually consider friends? This discrepancy was the subject of Sluss v. Commonwealth, a Kentucky Supreme Court decision. The case involved the unfortunate death of a little girl. She was killed in an auto accident involving an impaired driver. The impaired driver faced murder charges, and before the trial even started, social media outlets caught fire over the case.

As jury selection began, the potential jurors were asked if they knew the victim or the victim’s family. All of the jurors selected exclaimed that they did not know the victim or her family. During additional questioning, one of the jurors stated that she had a Facebook account, but did not disclose she was Facebook friends with the victim’s mom. Another one of the jurors denied even having a Facebook account, although she was also Facebook friends with the victim’s mother. These two ended up being on the jury that found the defendant guilty of murder.

Shortly after the verdict was rendered, the defense attorney discovered the relationship between the two jurors and the victim’s mother. He tried to get a new trial, but the judge refused. Then, he appealed to the Kentucky Supreme Court. At first, it looked like the conviction would be upheld, because the Kentucky Supreme Court stated: Facebook friendships “do not necessarily carry the same weight as true friendships or relationships in the community, which are generally the concern during voir dire [jury selection].”

While that statement makes a lot of sense in general, it does not explain why these two particular jurors did not mention their online relationship to the court? Perhaps, the first juror may not have realized she was friends with the victim’s mom (especially if both had thousands of friends), but it does not explain why the second juror lied about having a Facebook account. The Kentucky Supreme Court undoubtedly recognized this suspicious set of circumstances when they reversed and remanded the trial court’s decision. Regardless of the eventual outcome of this case, it will come at a much higher cost due to social media.

While these two examples, may strike some as obvious violations of jury instructions, there are still other much more innocent posts and tweets that can affect a jury’s impartiality. Simply posting “I have jury today,” or, “I can’t believe they picked me for jury duty” can result in a number of unforeseen circumstances. Even though posting these declarations may seem innocent, they do invite conversation. If anyone responds to these types of posts, they most likely are going to ask what the case is about. And, at that point, the juror is now in danger of divulging confidential information.

For a more stylized example, imagine posting “I got picked for jury today,” the same time the media announces that jury selections have been made for a high profile case. Even if the juror is not on that case, speculation will run rampant. Once again, the juror will be in a precarious position.

Board Certified Criminal Trial Lawyer, Michael Kenny, shared his thoughts on these cases stating: “these cases are examples when it has just been discovered that social media has been a tool to impact the potential impartiality of the jurors verdict. However due to the ubiquitous nature of social media today what concerns me is the potential for instances when the attorneys or the court would be unaware of some contact or independent evidence gathering by a jury. I think the rules are well intended, but it may be very difficult to know when the rules are violated. When jurors render a verdict there’s never a form they fill out to tell you why they came to the conclusion they came to.”

Now that we have discussed the problem long enough, what can be done to resolve the issue? To answer this question, let us take a look at the “More From The #Jury Box” study. This study was conducted by the Hon. Amy J. St. Eve, the Hon. Charles P. Burns and Michael A. Zuckerman, Esq. They surveyed hundreds of state and federal jurors about whether or not they were tempted to use social media during their trial. The surveys were confidential and, while not quite up to scientific rigor, their findings provide a strong place to start the conversation on how to keep social media from tainting an impartial jury.

Roughly ninety percent of the jurors responded that they were not tempted to discuss the case on social media,  and roughly eight percent admitted that they were tempted to discuss the case on social media, but did not do so. What is most compelling about these findings was the predominant reason most did not: because the judge instructed them not to. Just to be clear, this does not mean, because the judge instructed them not to or he would throw them in jail. There were some who were surveyed that did mention jail time or being held in contempt as a deterrent, but they were a small minority. The overwhelming majority stated that it was just the judge’s clear and specific instructions that deterred them. There is strong reason to believe these jurors, because most of them never had instructions that even mentioned the threat of jail time. Thus, the judge’s instructions seem like a powerful motivator.

In addition, the study goes on to note that, “judges who explained how important an impartial jury is to our system and the duty the jurors swore to abide by the legal system, the less their jurors were tempted to discuss the trial on social media.” Finally, for trials lasting several days, the study also suggested it was important for judges to repeat their initial instructions to the jury on a daily basis.

At this time, social media may threaten the impartial jury to a certain extent, but important studies like the one discussed here are already providing compelling evidence on how the American justice system should move forward. This challenge is far from over, and as more cases and information surface, we will be here to inform you about them and what they mean to you. For further updates, check out our social media…unless, of course, you have jury duty!