Courts have increasingly grappled with jury misuse of the Internet during court proceedings. In the age of smartphones, jurors are only a swipe of a touch-screen away from finding information that may inappropriately influence or confuse them. Federal Rule of Evidence 403 was designed to reduce such unfair prejudice and confusion by limiting what information the jury can see during a trial. To reinforce the Rule 403 framework, courts routinely instruct juries not to conduct outside research or follow news about their assigned trial. Traditional instructions to refrain from active research may not be enough, however, because it is easier than ever for jurors to research a case and communicate in their deliberations about the information found. Some judges are testing the efficacy of written juror pledges to prevent these risks, including Judge Shira A. Scheindlin from the Southern District of New York, well known for her electronic discoveryrelated decisions. Additionally, judicial committees across the nation have drafted model jury instructions to more clearly convey the dangers of communicating over social media websites or conducting research on the Internet.
In 2011, Judge Scheindlin oversaw the trial of Viktor Bout, the Russian arms dealer who allegedly provided the inspiration for the 2005 Nicolas Cage film LORD OF WAR. Because of the high-profile nature of the trial and Bout’s extensive criminal history, Judge Scheindlin was particularly attuned to the risk that the jury would be inappropriately influenced by media coverage or other outside research, or even be tempted to communicate about the case through social media. She also noted that she was “keenly aware that there are convictions set aside all over the country when [the court] learn[s] later during deliberations a juror looked up the keyword or the key name.” Colin Moynihan, Judge Considers Pledge for Jurors on Internet Use, N.Y. Times, Sept. 18, 2011, available at http://www.nytimes.com/2011/09/19/nyregion/us-judgeconsiders-making-jurors-vow-not-to-use-web.html. As a result, Judge Scheindlin not only instructed the jury to refrain from conducting outside research or communicating about the case; she also required potential jurors during voir dire to sign a pledge stating they would refrain from doing either, with jurors subject to perjury charges if they violated the oath. Id. Judge Scheindlin even excused one potential juror who refused to sign the pledge. See Mark Hamblett, Stop-and-Frisk Judge Relishes Her Independence, N.Y.L.J., May 20, 2013, available at http://www.law.com/ jsp/law/articlejsp?id=1202600625151. (“Stop-and-Frisk”).
Similarly, Judge Lloyd A. Phillips, Jr. presiding in a California state court experimented with a juror pledge in Strange v. Entercom Sacramento LLC, No. 07AS00377 (Cal. Super. Ct. Sacramento Cnty., Jan. 25, 2007). In Strange, a radio show hosted a contest in which participants drank eight ounces of water every fifteen minutes for as long as they could without going to the restroom. Plaintiff sued after his wife died from water intoxication five hours after finishing in second place in the contest. Because of the media attention and the risk that jurors would conduct their own research on the science behind water intoxication given the unusual nature of the case, the court had potential jurors sign written declarations that they would refrain from communicating about the case electronically, including through “personal electronic and media devices.” Greg Moran, Revised jury instructions: Do not use the Internet, Union-Tribune San Diego, Sept. 13, 2009 available at http://www.utsandiego.com/news/2009/Sep/13/revisedjury-instructions-do-not-use-internet. One commentator remarked that that court was the first to include such a juror pledge in California. Id. The innovative approaches of Judge Scheindlin and Judge Phillips may influence or provide a roadmap for other judges seeking to protect jurors from the influence of outside research or communication.
Modernizing Jury Instructions
For judges seeking to prevent improper juror research or communication, modernized jury instructions are also critical to protect the integrity of the judicial system. One scholar has argued that judges must explain to jurors, in non-legalistic language, the rationale for why it is improper to conduct outside research or communicate with others about the case. Thaddeus Hoffmeister, Google, Gadgets, and Guilt: Juror Misconduct in the Digital Age, 83 U. Colo. L. Rev. 409, 452-54 (2012). To assist judges, the Judicial Conference Committee on Court Administration and Case Management has proposed Model Jury Instructions that include increasingly specific warnings not to conduct outside research or communicate with others about the case through social networking sites. The potency of the instructions lies in their specificity, which is why the committee actually includes in the instructions a list of some of the sites that are most frequented, including Facebook, MySpace, LinkedIn, and YouTube. Given how quickly the Internet changes, in order to maintain the appropriate specificity these rules will need frequent modernizing. For example, the Committee’s Proposed Instructions in 2012 added Google+ to the list of sites through which jurors may not communicate about the case; it was absent from the 2009 instructions because Google+ was only launched in 2011.
As Judge Scheindlin put it, “lawyers really talk about . . . social media, GPS, cell sites, data collection, technologyassisted review. . . . The biggest change in the law is that all these issues that have arisen out of the new world we live in.” Hamblett, Stop-and-Frisk, supra. Because the technological landscape is so dynamic, courts are increasingly vigilant to the risk of jury misuse of the Internet. If a judge conducting voir dire does not include a modernized jury instruction, litigators would be well-served in requesting one where appropriate or directing some of their questions to determining jurors’ use of social media; at the very least, this may serve to remind the jury that there are important limits to Internet use during the trial.