Jury's Still Out on Juror Internet Use

A recently-released report from the Federal Judicial Center says that in a survey of 494 federal trial judges (48 percent of all 1,021 sitting federal trial judges), only 33 of the judge (seven percent of respondents) reported that they were aware of instances of juror use of social media to communicate during trials or deliberations in their courts

This result is virtually the same as a similar 2011 FJC survey, in which 5.9 percent of the judges surveyed were aware of juror use of social media in their courts.

Yet it is clear that use of the internet and social media is now ubiquitous in everyday life, with 87 percent of adults (age 18 and above) using the Internet, most on a daily basis, and 74 percent using social media. And there are numerous anecdotal instances (collected here; here; and in my own article here) in which jurors have been found to be using social media, both to communicate trial information and to undertake independent research.

With internet and social media usage so ingrained in American society, it strains credulity that such activity essentially stops once someone becomes a juror. For this reason, I was skeptical of the results of the 2011 survey. Yet other studies have found similar results.

As I previously discussed, a pilot study of potential (prior to voir dire) and seated jurors in six criminal and seven state civil trials found some contradictory results. A large majority of the potential jurors understood that it was improper for them to research or communicate about the case online, although a "substantial portion" of the seated jurors did not recall the admonishment.

Nevertheless, none of the seated jurors surveyed admitted to improper activity either communicating about or researching their case online, although 10 percent said that they had discussed the case with fellow jurors before deliberations and six percent had discussed the case with friends and/or family. But this did not mean that they did not want to do so: 28 percent of seated jurors said that they would have liked to research the case online, and 29 percent said that they would have liked to communicate online with friends or family about the case.

A federal judge and a state judge in Illinois collaborated in a separate study of 358 federal jurors and 225 state jurors in trials in their courtrooms, incorporating a prior study by the federal judge. Only 45 (8 percent) of the jurors said that they were tempted to do research or communicate online about the case, and 43 reported that they had resisted the temptation. (The other two did not say whether they had succumbed to temptation or not.)  Almost all of the jurors who resisted said that they had not done so because the judges' admonitions against social media use.

Of course, quantifying jurors' use of social media during trial or deliberations are difficult to detect and quantify. Thus the authors of all the studies cautioned that their results were anecdotal, not scientific. As the 2014 FTC report itself notes, "the data from the survey represent judges’ reported experiences and perceptions of jurors’ ... use of social media. The data are not actual empirical measures of such behavior."

So perhaps a more meaningful statistic in the 2014 survey is that of the 228 judges who answered an open-ended question regarding effectiveness of measures to deter juror use of social media, a whopping 89 percent "indicated that they had no way of knowing if jurors have violated the social media prohibition but assumed full compliance."

The various surveys do agree that frequent, specific jury instructions against use of social media seem to be effective in reducing juror use of these technologies, or at least in making them aware that it is improper.

But courts have been giving such admonitions against exposure to traditional media during trial and deliberations for decades, and ex parte communication and research by jurors is still a persistent problem. And it seems that so will juror use of social media and other electronic devices and resources, even if it may be impossible to quantify.