Jury Instructions Regarding Social Media
October 12, 2012 Posted By Joseph A. French Trial Practice
Over the past several years, when selecting a jury, we have always discussed with prospective jurors the fact that they would be unable to use any social media to check on the parties, the witnesses, the accident site, news accounts, etc. Jurors were asked to commit to not using social media for these purposes, and, of course, each time all agreed to not do so. We found it surprising how frequently other colleagues did not raise these issues during jury selection and even more surprising when the issues were raised with the trial judges that they had not seemed to consider the possibility either.
In a positive development, we note that the federal judiciary has issued revised jury instructions directed at the potential improper use of social media by jurors. Many Judges were apparently concerned about the jurors’ social media use and tried to guard against it. These instructions will be used in both criminal and civil trials. Judges are allowed to remind jurors of the prohibition and use of social media as frequently as possible. The instructions forbid jurors from communicating with anyone about the case on their cell phones, through e-mail, blackberry, I-Phone, text messaging or on Twitter, through any blog or website, including Facebook, Google Plus, MySpace, LinkedIn or YouTube or any other similar technology. Moreover, jurors are even being urged to tell the judge about other jurors who may disregard a prohibition issued by the Court. When a juror’s violation of these instructions were brought to the judge’s attention, the most common reaction reportedly was to remove a juror or, instead, issue a strong caution to allow that juror to remain on the jury. Apparently, posters have also been designed to be posted in jury deliberation rooms or other area where jurors congregate to underscore the importance of this message.
In 2009 New York courts revised their instructions on preliminary jury admonitions in criminal cases, but we strongly believe this needs to be revised for all civil cases. Posters such as those posted in federal courthouses should be posted in all state juror rooms and the issue should be initially and strongly addressed by the Clerk when the jurors first arrive.
In a recent case of ours in Supreme Court, Queens County, the attorneys received a surprise when the case was settled. In a post-settlement conference, a juror advised us that he had checked each and every one of the attorneys out by reviewing their posted biographies and their firms’ respective websites. This juror, a journalist for a Hispanic television station, felt it prudent to do this even though all had received the admonition not to pursue any social media use regarding this trial or the parties involved. In retrospect, the attorneys agreed that something should have been specifically said about "Googling" the attorneys involved so as to not have anyone develop an unfavorable impression based upon information contained in the attorney’s website or any other publications that may have noted that attorney’s involvement, success or failure in other matters.