Juries are supposed to decide a case based only on the evidence produced by the parties, but how do we limit the facts they are exposed to when we all have vast amounts of information at our fingertips?
Social media causes a tug of war between two pillars of trial law – in one corner, the right to a fair trial, in the other the right to an open trial. A juror might Google the lawyers involved, the defendant, legal definitions, and evidence excluded from the lawsuit without understanding the ramifications of doing so. Moreover, the court may not even catch these behaviors until it is too late.
By giving everyone access to a global platform, social media empowers anyone to be a publisher. It blurs the boundary between professional court journalists and citizen observers and makes it increasingly impossible to shield jurors from either one. And when jurors use social media, they can easily influence whether a verdict will stick.
In 2011, the Arkansas Supreme Court threw out a death-row inmate’s murder conviction because of a juror’s Twitter use during the trial. Although the juror did not post any details about the trial, he did tweet shortly before the verdict announcement saying, “It’s over.” This statement was enough for the Arkansas Supreme Court to call for a new trial.
To prevent social media use from impacting a trial, lawyers may need to go on the offensive. Although attorneys cannot send “friend” or access requests to jurors’ social media accounts, they can monitor those accounts during trial. Although this feels like just another item to add to an already full “to-do” list during trial, it may be worth the time. Jurors breaking the rules can be removed before their actions cause a mistrial.
Even though jury instructions inform jurors what they are and are not allowed to do during the trial, they seem to have little effect on social media use. After seeing a sharp rise in mistrials linked to jurors using the internet to research legal terms or check social media, California legislators enacted a law in 2016 allowing judges to issue a $1,500 fine to jurors caught using social media. Giving teeth to the rules for the jury may help to curb outside influence, but it also could make jury duty even less appealing than it already is.
As internet use is about as likely to go away as the opposable thumb, it may be time to start re-examining the rules regarding jury trials.