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Feb 16, 2016

New York Bar Association Committee Calls for Jury Instruction Improvements for Digital Age

In my 2011 study of state and federal courts' jury instructions regarding the internet and social media, I observed that New York State's civil and criminal pattern jury instructions were among the most advanced in how they dealt with the issue. Not only do New York's instructions admonish jurors not to use these resources to research or communicate about the cases they are hearing, but the instructions also mention specific sites and warn of the possible consequences if the instruction is disobeyed.

Now the New York State Bar Association's Commercial and Federal Litigation section is calling for updating and strengthening the instructions.

The section's report, issued in December, calls for additions to the existing instructions to more specifically admonish jurors to not communicate about the case online or on social media; to update references to devices, websites and social media outlets to reflect current trends and usage (for example, updating references to Blackberries and MySpace); and to explain to jurors the rationale for disallowing jurors to use social media and the internet.

The report also calls for posters in juror rooms reminding them of the rules regarding social media, a technique used in other courts.

The report also includes -- but does not formally propose --  changes to the instructions explaining to jurors that they social media posts are usually accessible by the public, including the attorneys and others involved in the case. These changes are based on ethics opinions that attorneys can and should monitor social media for misconduct by jurors and other trial participants. (I discussed these ethics rulings in my article on attorney research about jurors.)

In making its recommendations, the report cites my study of jury instructions, as well as a quote I gave on the subject to the Citizen Voice newspaper in Wilkes-Barre, Pa.

The objective of the recommendations, the bar report states, is "to ensure the integrity of our jury system." In order to do so in the modern age, that means addressing juror use of social media and the internet during trial.

h/t Jurors Behaving Badly blog (Judge Stephen M. Halsey)

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