Small Survey Shows Juror Misconduct Online May Be a Big Problem

In previous posts, I have been skeptical of surveys of judges that have revealed low levels of internet and social media use by jurors. Now a small survey of New Hampshire state judges indicates that it such juror misconduct may be more common.

The survey, published by law student Brooke Lovett Shilo in the University of New Hampshire Law Review, surveyed 10 of the 19 sitting Superior Court judges in the state. And three of the justices -- 30 percent of those surveyed -- said that they had experienced jurors using the internet or social media in cases.

This is a higher percentage than two surveys of federal judges in 2011 and 2014, in which 5.9 percent and 7.0 percent, respectively, reported having experienced such behavior. My friend Thaddeus Hoffmeister conducted a survey of federal judges, federal prosecutors and public defenders which found that 10 percent personally knew of internet research by jurors.

In an "informal survey" of 583 federal and state jurors, 8.06 percent admitted that they were tempted to communicate about their cases via social media, and 2.74 percent did not respond to the question. None of the jurors in a study of 15 state trials reported improper behavior online, although 16 percent did report old-fashioned misconduct: pre-deliberation discussions amongst jurors about the case, or discussions with non-jurors.

With the widespread use of the internet and social media in everyday life -- the latest Pew statistic is that 87 of American adults use the internet -- I've been skeptical of survey results that show miniscule rates of juror internet and social media use. I'm not saying there's an epidemic of such behavior, and I'm sure that most jurors take their role seriously and abide by admonishments against internet use. But the increasing number of anecdotes of misbehavior by jurors -- and other trial participants, including judges -- are likely indicative of many more instances or juror misconduct online that is never discovered.

The New Hampshire survey is a small one, conducted in a small state. But the results may indicate that the issue of juror use of the internet and social media during trial is more common than previous studies have shown, and an important issue for the courts.

h/t Thaddeus Hoffmeister's "Juries" blog