A recent article published in the Duke Law and Technology Review sheds new light on the jury’s use (or more precisely, lack of use) of social media when given proper instructions from the Court. (See Amy J. St. Eve, et al., More from the #Jury Box: The Latest on Juries and Social Media, 12 Duke L. & Tech. Rev. 65 (2013)). While it is well documented that social media, such as Facebook and Twitter, can affect the scope of discovery or have an evidentiary impact on a trial, social media use can also impact the fairness of the trial.  For example, jurors have Facebook messaged with potential witnesses and posted public comments on the status of the trial. (See, e.g., State v. Smith, No. M2010-01384, 2013 WL 4804845 (Tenn. Sept. 10, 2013); Sylvia Hsieh, Juror’s Facebook Posts May Overturn Wrongful Death Verdict, LAWYERS.COM (Feb. 14, 2013)).

Lawyers have unsuccessfully attempted strategies to preclude the use of social media by jurors at trial, such as though asking jurors to reveal their Twitter accounts (See Motion on Arias Jurors’ Twitter Handles Denied, ASSOCIATED PRESS (Dec. 4, 2013, 2:02 PM)). The Duke Law and Technology Review article, however, reveals that jury instructions appear to be highly effective in deterring juror use of social media during trial.  Based on juror surveys issued at the conclusion of trials in Illinois federal and state courts, 47 of the 583 surveyed jurors (about 8%) indicated that they were tempted to use some form of social media during the trial.  (Twenty jurors stated that they did not use social media at all.)  All but two jurors defeated the temptation.  The overwhelming reason: admonishments from the court to refrain from using social media.

Based on their experience in Illinois, the authors offer several suggestions.

  • Employ a social media instruction.  Several jurisdictions have already adopted pattern jury instructions on this issue.
  • Instruct the jury early and often, and perhaps even daily in a long trial.
  • Make the instruction effective by including relevant content in the instruction and providing examples of prohibited activities.

This article was prepared by James V. Leito IV
(james.leito@nortonrosefulbright.com / +1 214 855 8004), an associate in Norton Rose Fulbright’s litigation practice group.