Imagine you are at home one night enjoying your favorite pastimes—checking your Facebook page and Twitter feed. Your significant other intrudes, and tells you that there was a jury summons in the mail—and it has your name on it.
You immediately update your statuses (all of them) to “OH NO! JURY DUTY! ):” After all, you know what comes next: if selected, you anticipate weeks of missed work, long-winded lawyers, and uncomfortable seats.
Your worst fears regarding the seats are confirmed while participating in something the judge refers to as “voir dire.” To your chagrin, you are selected for the jury. Then, you are surprised when the judge adds insult to injury by instructing the jury to refrain from mentioning the trial in any social media for the duration of the trial.
But, you were never one to keep your Twitter followers waiting, were you? So—against the judge’s instructions—you live-blog the trial from the jury box. You scour the deepest recesses of Facebook and, mid trial, “friend” the plaintiff. You post what you think the outcome should be before either side rests their case.
It turns out, you are not alone.
Juror misconduct related to social media is far from an isolated occurrence, and lawyers, judges, and commentators have begun to pay attention. The Wall Street Journal and others have reported on jurors being punished with community service and jail time for “friending” the parties in the cases on which they were deliberating. Similarly, a juror has been removed from a jury for posting on Facebook that the defendant was guilty—before the prosecution had rested.
This type of conduct is not without its consequences: cases are being overturned because of juror’s social media use. For example, in one case a murder conviction was thrown out because a juror had tweeted about the trial. Accordingly, instructions to jurors to refrain from using social media to discuss their trial are now commonplace in courtrooms across the United States.
Unfortunately, for every case where a juror’s inappropriate social media use is detected, it is a safe assumption that there are many more where the misconduct goes unnoticed. In a survey of 508 federal judges, 202 admitted they did not know whether their efforts to deter inappropriate use of social media were successful. It is, therefore, not surprising that there are already services with names like “juryscout” that promise to monitor jurors’ use of social media for anxious litigants.
As social media’s popularity continues to grow, juror misconduct related to social media will increase. Litigators should be cognizant of the issues raised by such behavior and, perhaps, pause to wonder what their jurors might be posting about them as they retire for deliberation.