The Northern District of Illinois’ Judge St. Eve has written an interesting article arguing that ill effects of juror’s social media use can be controlled and limited with use of jury instructions. What makes Judge St. Eve’s article especially interesting to practitioners is that it is backed by proof. Judge St. Eve enlisted Judge Kennelly in her study. Both used a social media instruction and then interviewed jurors after trial to determine how the instruction impacted what the jurors did.
It will be no surprise to anyone who has tried cases or spent time on a jury what Judge St. Eve found – jurors given the instruction largely complied with it. Jurors largely try to do what is asked of them and they usually do it well.
The only issue I see with Judge St. Eve’s findings is that reproducing them depends upon crafting a good, understandable jury instruction. As with any jury instruction, it should be as simple and understandable as possible, while remaining sufficiently detailed. One critical issue is to sufficiently identify the social media outlets without unintentionally excluding any outlets. But the pattern instructions St. Eve uses balances all of that well:
[Before Trial:] . . . . Until you retire to deliberate, you may not discuss this case with anyone, even your fellow jurors. After you retire to deliberate, you may begin discussing the case with your fellow jurors, but you cannot discuss the case with anyone else until you have returned a verdict and the case is at an end. I hope that for all of you this case is interesting and noteworthy. I know that many of you use cell phones, Blackberries, the internet and other tools of technology. You also must not talk to anyone about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. 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.
[At the Close of the Case:] 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.