Following the approach taken by several state courts, in late January the U.S. Judicial Conference—which sets policies for all federal courts except the Supreme Court—sent all federal district judges suggested jury instructions on "juror use of electronic communication technologies" during trial.
The message of the instructions, in a word, is "Don't!"
The suggested instruction to be used before trial states:
You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in the case, and the individuals or corporations involved in the case. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Please do not try to find out information from any source outside the confines of this courtroom.
The pre-trial instruction also admonishes jurors that they must not discuss the case with anyone, including fellow jurors. The suggested instruction also includes a laundry list of technologies that jurors should not use:
You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, My Space, LinkedIn, and YouTube.
The suggested post-trial instruction, to be given before the jury begins to deliberate, includes a more extensive list:
During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet service, or any text or instant messaging service; or any internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.
The Judicial Conference's Committee on Court Administration and Case Management, which approved the suggested instructions in December, notes in a preface to the instrutions that the committee thought it was important to speficially identify the technologies and services that jurors should not use.
The Committee believes that more explicit mention in jury instructions of the various methods and modes of electronic communication and research would help jurors better understand and adhere to the scope of the prohibition against the use of these devices.
While only a few state courts have declared mistrials in cases where jurors did independent online research into cases, juror use of social media during trial has been a growing dilemma. And jury instructions admonishing jurors to not use such technologies are necessary. But there are two problems with the suggested instructions: one minor, one more significant.
The minor one is that by listing the specific technologies—blogs, Facebook, My Space, LinkedIn, etc.—the suggested instruction could easily become stale and out-of-date as new technologies and platforms emerge. (Recall, MySpace was once the leading social networking site; no longer.) This could be easily solved, of course, by judges—either on their own, or at the suggestion of the Judicial Conference—adding new technologies to the list.
The more major concern is that, aside from a quick statement that "You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom," the suggested instructions do not explain why jurors should not do their own investigations of the case, or communicate with others about it.
Judges should explain to jurors, for example, that there are rules and laws regarding evidence that exist to provide a fair trial, and that jurors doing their own research may undercut these rules and frustrate the ultimate goal of fairness. Judges should also explain why jurors shouldn't communicate with others about the case. This one's a little harder to explain, but the prohibition arguably helps minimize the risk of outside influences tainting the jury's deliberations and upholds the dignity of legal process.
For better or worse, social media use is becoming an integral part of life for many people. If the federal courts and their state counterparts need jurors to restrain themselves from this activity, they need to do a better job explaining why.