The unjust "web" we weave: the evolution of social media and its psychological impact on juror impartiality and fair trials.
Accessible in a myriad of ways, the Internet has come to define the contemporary population as a group dependent on instant informational gratification. The growth of Internet popularity has not occurred without bringing concerns. In the context of our justice system, the easily-accessible nature of the Internet has resulted in jurors having the ability to consult online social media sources in order to aid their decisionmaking and deliberations. Moreover, jurors are sharing their own perceptions and opinions of the trials in which they are serving. Both of these misuses pose a threat to defendants' constitutionally guaranteed rights to a fair trial and an impartial jury. Understanding the importance of deterring such misconduct should prompt our courts, at all levels, to consider what the most viable options are for doing so. After establishing the different routes from which to choose, they must evaluate the psychological factors associated with deterrence, and determine which method works best in curbing potential jurors' inherent need and desire to utilize online social media and Internet-ready devices.
French philosopher and essayist Charles Peguy once stated that "perhaps nothing is as old as today's newspaper." (1) Though Peguy's observation was made nearly a century before the conception of most modem forms of communication, his statement has never rung truer than it does today. With the advent of the World Wide Web, the public's desire for instantaneous updates on the current state of the world around them has never been more apparent. This note chronicles the gradual increase in social media's influence on jurors' judgments of a trial or a defendant, with emphasis on the most recent information-gathering medium of particular concern to the interests of justice--online social networks.
The evolution of the Internet brought with it the conception of social networking sites, which are now accessible by anyone with a computer or even cellular "smart" phone. (2) The millions who subscribe to these sites use them in countless ways. Perhaps the most concerning use is the public's utilization of these online outlets to broadcast their opinions about ongoing court proceedings and defendants that happen to be the subject of extensive media coverage. (3) Whether it is the outside observers sharing their opinions for jurors to see, or jurors themselves offering their insights of a trial, the easily accessible contents of online social media sites create the potential for the "leakage" of information that can have detrimental effects on a court's efforts to protect the rights of the parties before it. It is also important to understand that this type of information, while notably simple to find if one is actually looking for it, is incredibly difficult to avoid even if one is attempting to do so. (4) The unrestricted nature of most online social media networks makes it nearly impossible to know when and where one might stumble across information regarding something from which an individual is trying to shield himself. (5)
This article will first explore the history of the media's influence on juror impartiality and fair trials, culminating in the most influential medium to date--the Internet. Additionally, we will discuss the current popularity of social media, and its influence on a juror's ability to remain impartial. Finally, we will explore a number of remedial options in an effort to curb such constitutional violations. This final section will evaluate, among other options, various jury instructions, as well as offer suggestions for ensuring juror compliance with them.
I. HISTORY OF SOCIAL MEDIA'S IMPACT ON CONSTITUTIONAL RIGHTS OF THE ACCUSED
The concern of social media's impact on juror impartiality is not a new one. Before the idea of the Internet existed in any capacity, courts stressed the importance of jurors resisting the influence of relying on what they had heard or read outside the courtroom to make decisions. In his opinion in Patterson v. State of Colorado, Justice Oliver Wendell Holmes posited that, "[t]he theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print." (6)
A. Defendants' Rights to Trial
The U.S. Constitution vehemently proscribes juror-partiality through the Sixth Amendment's requirement that "[all criminal defendants] shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district [where the alleged crime was committed ...]." (7) Additionally, under the Due Process Clause of the Fourteenth Amendment, no "State [shall] deprive any person of life, liberty, or property, without due process of law." (8) It logically follows that a violation of one's right to a trial by an impartial jury would therefore also strip a criminal defendant of his constitutional right to due process. If even one juror in a given case was not impartial in his deliberation and individual judgment of a defendant's guilt, then that defendant is entitled to proper recourse based upon these violations of his enumerated rights. (9) The Supreme Court agreed in Rivera v. Illinois holding, "[a]mong [a criminal defendant's] basic fair trial rights that can never be treated as harmless is a defendant's right to an impartial adjudicator, be it judge or jury." (10)
Some states have elaborated on the Sixth Amendment's demand for impartiality by describing an "impartial" jury as one that is "composed of persons who have no interest in the case, have neither formed nor expressed any opinion, who are free from bias or prejudice, and stand indifferent in the case." (11)
B. History of Case Law
In the 1960s, the Supreme Court tailored Holmes's assertion specifically to the primary media sources of the time--the newspaper and television-by setting aside a jury's murder conviction even though each juror testified that he would not allow prejudicial newspaper articles and television news programs to affect his ability to be impartial. (12) The Court held that a defendant potentially facing capital punishment deserved, at the very least, a trial untainted by the media's account of the public's passion. (13)
Sheppard warrants one side's view of television's impact on juror impartiality--that jurors are unable to stay impartial when exposed to negative and prejudicial articles and programming. (14) In Sheppard, the Court reiterated its belief that a defendant was inadequately protected by the court from prejudicial media exposure "when television ha[d] exposed the community repeatedly and in depth to the spectacle of (the accused) personally confessing in detail to the crimes with which he was later to be charged." (15) Based on this, the Court determined that the jury's conviction should be set aside in order to avoid a verdict that was unconstitutionally influenced by inadmissible and extrinsic social commentary. (16)
On the other hand, other courts have found that jurors are able to keep their impartiality intact despite prejudicial television coverage of a trial or a particular defendant. The two primary cases in support of this position are the infamous murder trials of O.J. Simpson and Casey Anthony. (17) Any member of the public who is minimally aware of either case would likely agree that public opinion rendered guilty verdicts for both defendants in overwhelming fashion. However, juries in both cases returned verdicts acquitting both Simpson and Anthony of murder charges. (18) Amy Singer, (19) the jury consultant for Anthony's defense, described the impact that the trial's television coverage had on the public: "The vast majority, glued to cable TV's gavel-to-gavel coverage of the six-week trial, hated the 25-year-old Orlando woman and was convinced she killed her daughter," later classifying the public as "a lynch mob." (20) However, the jury did not agree with public opinion and acquitted Anthony of murder. (21) The social circumstances surrounding the O.J. Simpson trial were similar to those of Anthony's trial, and Simpson was acquitted of murder as well. (22) While these cases provide hope that jurors can resist the power of social media's persuasive abilities, there still remains the possibility that jurors can give into the pressures of the emotional public. If this possibility exists, it demands that our legal system implement some mechanism to serve as a check on jurors' ability to infringe upon the rights of the accused.
II. THE BOOM OF ONLINE SOCIAL NETWORK POPULARITY
As the ways in which individuals receive their information has evolved, so has the potential for juror impartiality. Today, numerous online social networks have transformed the threat of juror exposure to information that is far from impartial. Frank Mastro of the American Bar Association modernized Holmes's declaration in Patterson regarding a defendant's right to a trial insulated from "any outside influence" (23) stating, "[t]he challenges inherent in safeguarding that right have changed as technology has advanced." (24) In order to understand the challenges facing courts in safeguarding the defendant from a guilty verdict based on public opinion, it is important to understand the types of sites available to the public, how the public uses them, and how they potentially bias jurors.
A. The Online Giants
Facebook, Linkedin and Twitter are the most popular online social media sites today, and all three have enjoyed tremendous growth over the recent decade. (25) By the end of 2004, the year that Facebook was created, it already had 1 million active users. (26) In just seven years, that number saw an 80,000% increase--800 million users worldwide, according to the company's most recent estimates. (27) In March of 2011, Twitter boasted its reaching the milestone of 175 million registered accounts, (28) while LinkedIn reported 119 million in July of the same year. (29) MySpace reached the 100 million mark in 2006 (30), but that number has steadily declined over the past five years, falling victim to the newer, more attractive and diverse features of Facebook. (31)
B. Uses and Features of Online Networks
When the popularity of these online Goliaths is considered alongside with how registered member use them, the phrase "too much information" transforms from a colloquialism into a valid concern at an alarming speed. Those with registered Facebook accounts are able to "post" photos, videos, and opinions with remarkably little censorship. (32) "In thinking about the potential dangers associated with the use of social media, all one needs to do is think about all the dangers associated with any form of one-on-one communication and then multiply it by a factor of however many people have access to the online communication." (33) Specifically, "[c]omments on social media outlets like Twitter [and] Facebook ... can display attitudes and opinions that people might not have shared before the technology was available.... [e]specially when comments can be made anonymously...." (34)
III. ONLINE SOCIAL MEDIA'S INFLUENCE ON BOTH JUROR IMPARTIALITY & "FAIR" TRIALS
A. Injustice from a Juror's Reliance on Outside Information
With the current unprecedented popularity of online social networks in mind, coupled with the far-reaching plethora of information that is published into the online public domain by these users, one of the essential questions becomes what is the potential impact this information can have on a juror's impartiality? After all, since jurors are ordinary members of today's tech-savvy society prior to being called to serve, it is more than likely that many of them will be simply too accustomed to receiving instant informational gratification on their phone or other handheld devices to break the habit once empaneled as a juror. (35) As a result of this pattern of Internet-dependability, "it can be very hard for these jurors to break this habit once selected for a jury and admonished by a judge to consider only the evidence presented in court." (36) Jurors are, paradoxically, too determined to get it right. In a recent article from the Illinois Bar Journal, Hon. Ron Spears (37) responds: "[J]urors are using the Internet to gather information about pending cases, people (parties, judges, attorneys), and places even before they appear for service and receive cautionary instructions" regarding such misconduct. (38) Specifically, jurors have been known to gather this information by perusing the unqualified and (presumably) inadmissible impressions that outside observers post on social media networks like Facebook and Twitter. (39) The issue then becomes whether or not reading these "posts" culminates into an obstacle thwarting a juror's ability to be impartial when deliberating about either a civil or criminal defendant.
Judge Spears proceeds by applying these notions of upholding constitutional legitimacy to the issues presented by jurors' use of the Internet during the course of trial. The Committee that recently amended the Illinois Pattern Civil Jury Instructions to bar any "independent investigation or research on any subject relating to the case" (40) emphasized the specific importance of applying the rule to the abuse of jurors' exposure to information posted on online social networks: "It is critical to the administration of justice that these electronic devices [with access to Internet and social networks] do not play any role in the decisionmaking process of jurors." (41)
This growing concern appears to be most prevalent in cases that are already the subject of mass-media coverage because more outside observers can follow such cases through various mediums and express how they feel about the case, or the parties involved, via online social networks. (42) One can again look to Casey Anthony's murder trial to understand. Singer classified Anthony's trial as "the social media trial of the century." (43) According to Singer, nearly one-million people were blogging about the trial, and thousands more were commenting about it on other various social media sites; she cited widespread television coverage of the trial as the reason for the case garnering so much attention from the public. (44) Through Singer's comments, Musgrave bemoans the lack of "home viewers'" impartiality that resulted from what they "learned" about the trial on television, arguing that because their perceptions and opinions of the case were based on extra-evidentiary commentary about the case, they all would have been struck from the jury. (45) Musgrave's position directly reinforces the previously mentioned constitutional need for impartial jurors who base their subjective opinions on evidence introduced at trial instead of hearsay that takes place outside the courtroom. The constitutional importance of weighing evidence introduced at trial exclusively is evaluated later in this article.
The argument that jurors should restrain themselves from being influenced by what they read on social networking websites is incomplete without an understanding of how they are psychologically affected by the information they gather, and whether this psychological influence subconsciously affects their opinion despite their best efforts to keep it from doing so. There are two primary explanations for the "how" aspect of jurors being improperly influenced by what they read online. First, if a juror is unfamiliar with a particular provision of law, or is confused about the significance of a certain piece of evidence introduced at trial, he or she may turn to the Internet, specifically social networks, for further insight. This presents a two-fold concern.
The first concern is that the online information is inaccurate, given that many of the "authors" of these online posts and blogs are completely unqualified to give a legally-sound evaluation of the evidence. The second and more problematic, evidentiary concern is that such information is inadmissible in any courtroom. (46) A juror should not only refrain from basing any decisions on the information, but should also ensure that he or she does not avail himself or herself to such prejudicial evidence in an effort to avoid any subconscious effect it may have. (47) "Rules of evidence and due process require that only legally admissible evidence be considered after subjection to cross-examination in open court. Information on the Internet has not been subjected to this truth-refining process and therefore is not generally reliable for court purposes." (48)
The second concern at the heart of this issue is what the field of cognitive psychology calls "groupthink." "'Groupthink is a term for essentially unhealthy group conformity that occurs when pressures to conform are in the interest of solidarity rather than that of official goals." (49) In other words, when individuals hold beliefs and opinions that do not align with the prevailing view of a particular group, they may "keep their views to themselves," resulting in reluctant compliance with the group's collective belief. (50) Numerous concerns, including "preserving relations between members [of the group] ... can take priority over making the best decision." (51) The relationship between a juror in a trial and the public that follows that trial through various media outlets is very susceptible to group think influence. (52) When one considers the modern ease with which anyone, jurors included, can access the Internet with cell phones and other handheld devices, it should not come as a shock that jurors may perceive, at least subconsciously, a defendant's guilt even before that juror is selected for a case.
Two forms of influence stem from this concept of social conformity--normative social influence and informational social influence. (53) The former focuses on behavioral conformity and "is defined as pressure to conform to the positive expectations or actions of other people. It involves going along with the crowd in order to be liked and accepted by them." (54) The latter, informational social influence, involves the "pressure to accept the actions or statements of others as evidence about reality. It involves going along with the crowd because you think the crowd knows more than you do." (55) It is not difficult to see both forms of conformity at play when jurors avail themselves to publicized opinions from the lay public.
In response to a Trinidadian study designed to evaluate the social psychology behind juror decisions, a faculty member in Social Psychology at the University of the West Indies presented the theory that jurors very commonly enter a case with their minds already convinced of a certain verdict. (56) "It was suggested ... that 90 [percent] of jurors' decisions were made before they entered the jury room." (57) This evaluation was made in 1984, before the masses were able to form a unified lynch mob against a defendant in the form of online posts. Thus, it is more than rational to assume that these premature convictions are occurring with even greater frequency today, given the increase in accessibility of information over the last thirty years. Such derogatory online publications can accumulate to form a prejudicial bias against the defendant within the mind of the potential juror before he even sets foot in a courtroom. Why is this so rational to assume? The problem just described is happening with enough frequency that judges are beginning to order "sophisticated monitoring of the Internet and the deliberate data mining of influential sentiment and opinions about a case or client." (58) Even when such research is not ordered, many lawyers practice "sentiment mining" as a matter of course, for the purpose of discovering whether or not the cumulative effect of such negative media attention has potentially led a juror to become "exposed to inadmissible evidence." (59)
Professor Abraham S. Goldstein of Yale Law School further explores notions of groupthink involving the individual's fear that the "group" will discover his or her discrepant views. (60) Goldstein sheds light on jurors' vulnerability to social pressure in his evaluation of post-verdict interviews with former jury members. (61) He asserts, with disgust, that elements of today's society have molded the traditional understanding of a juror's right to secrecy into a concept of the past. "Potential jurors are [now] being taught that their deliberations will not be secret at all," (62) according to Goldstein, and proceed with their deliberations as if they will have to account for them to the general public--"as individuals, not as a body." (63) He defers to Justice Cardozo to illustrate the grave impact this fear will have on the necessary privacy of deliberations: "Freedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world." (64) Thus, the impact of overwhelming influence from social media on the individual juror has the potential to destroy the democratic elements of our judiciary and leave the fate of our defendants in the hands of those less-qualified to render an opinion. (65) While there is always a concern that an individual juror will "go along" with the rest of the jury's beliefs instead of being the "odd-man out," this article leaves direct exploration of that issue for other scholars. The issue to be addressed here is whether or not there is a way to keep individual jurors, as well as the jury as a single unit, from becoming groupthink victims of the court of public opinion.
B. Jurors' Online Publications as Tools of Injustice
In addition to the concern of jurors obtaining extrinsic information about a case via the Internet, we must also worry about jurors themselves communicating with fellow jurors online about the trial and the jury's deliberations. (66) There are countless reasons why jurors may find the "need" to post information about the trials in which they are serving--perhaps for attention, perhaps as an emotional outlet, or perhaps the juror knows that certain people are curious. Professor and Chair of California State University, San Bernardino's Communication Studies Department, C. Mo Bahk, provides a very general psychological reason for our desire to publish our thoughts online: "[T]he Internet provides us with opportunities to 'participate' rather than passively receive information whether we create, share, or socialize." (67) Whatever their reason for doing so, when jurors communicate information about a pending trial, it poses serious risks of violating a defendant's rights to a fair trial. Some briefcase discussions help illustrate the problems that arise when jurors do more than just read prejudicial information on the Internet.
First, in a political corruption case in Baltimore, five jurors were ordered to attend an evidentiary hearing to evaluate whether or not certain "posts" on their own Facebook pages amounted to prejudice against the defendant. (68) A co-juror posted on another's page "Hi James! Ready for round ... oh I lost count! See you tomorrow." (69) This comment was deemed innocent enough not to warrant any discussion of prejudice. However, a nonjuror posted the comment "not guilty" on another juror's page in reference to the trial in which the juror was serving. The juror responded, "NO AL GUILTY AS HELL ... SORRY." This was enough to prompt a presumption of prejudice against the defendant before deliberations had even ended. Thus, the judge ordered a hearing to evaluate the online comment's potential abuse. (70) The defendant entered into a plea bargain before her motion for a new trial could be granted, but not before the court had already i11ustrated the constitutional abuse that online social networks are capable of committing. (71)
An English case provides possibly the clearest example of how online social media can unintentionally infringe upon the rights of the accused. A female member of a jury in a child abduction and sexual assault case was removed from the jury because she posted on her Facebook page, "I don't know which way to go, so I'm holding a poll." (72) Though such a comment did not prompt the declaration of a mistrial, the court clearly believed that a juror's intentional invitation to prejudicial information precluded his or her ability to remain impartial. (73) Thus, it seems to be the case that when jurors' comments on social media websites have the potential to trigger responses that may disable a juror from being impartial, it is then that these online networks have served as weapons against the constitutional safeguards to which defendants are entitled.
When the accused's rights outweigh the public's, and a defendant is entitled to protection from outside influence and prejudicial publicity, courts have a menu of remedial options, each with its own strengths and shortcomings. Aside from a few extreme suggestions, the three primary options appear to be jury sequestration, modernized voir dire of potential jurors during the striking stage, and modified jury instructions tailored to address the issues involved with online social media.
A. Jury Sequestration
Jury sequestration is the "[c]ustodial isolation of a trial jury to prevent tampering and exposure to publicity...." (74) A trial judge reserves the power to order a sequestered jury when he or she feels it is necessary to protect the interests of the defendant. (75) It is reasonable to assume that, during technology's yester-years, sequestration may have been a "surefire" way to isolate jurors from prejudicial media publicity that would otherwise alter their ability to be impartial. But given the advances of handheld devices and Internet accessibility, sequestration may be as outdated as the newspaper articles from Sheppard. (76) "You can imagine, given the ease of communication these days, that jury integrity could be compromised.... It's easier for sequestered jurors to communicate with the outside world and learn facts they're not supposed to learn about." (77)
Even if it were still a guaranteed mechanism for informational isolation, most sources accentuate other shortcomings of sequestration that make it a rather impractical solution on other grounds. Among these drawbacks is the high monetary cost of providing lodging for each juror during the duration of the trial, "which would have to be borne by [judiciaries] already faced with scarce resources." (78) Additionally, sequestration has shown a tendency to reduce juror motivation, yield hasty verdicts, and create "public relations fallout[s]" as a result of "potential jurors [being] faced with the prospect of being separated from their families for days, weeks, or even months every time they receive a summons for jury duty." (79)
B. Modernized Voir Dire
Voir dire is "[a] preliminary examination of a prospective juror by a judge or lawyer to decide whether the prospect is qualified and suitable to serve on a jury." (80) Judge Spears offers a couple of questions that may help make this determination, advising that "[v]oir dire should include questions about whether prospective jurors have already conducted any prohibited activity and whether they agree to follow" rules prohibiting any individual investigations about the case. (81) Since Internet-ready devices now reside in the pockets and purses of most members of potential-juror pools, the process of voir dire, in order to maintain its efficacy, must evolve in accordance with the birth of new ways to conduct online research.
Lawyers have recently begun asking jurors whether they blog or comment on online reports of criminal trials. (82) A Washington newspaper provided an account of a recent murder trial implementing such a policy. (83) During the preliminary voir dire phase, approximately 200 potential jurors were asked if they had "ever written a letter-to-the-editor or blog[ged online] about any story [they] may have read or heard about relating to violent crime." (84) One of the prosecutors in the case explained that a juror's proclivity to express his or her opinions about "the case, the defendant, or violent crime in general" may indicate the presence of strong emotions toward certain issues that could preclude the prospect's ability to serve as an impartial juror. (85)
C. Tailored Jury Instructions
Research supports the idea that when a judge provides specific instructions to the jurors for how they are and are not permitted to use Internet-ready devices and certain online social media networks, the concerns of such use are more frequently avoided. A number of jurisdictions have taken different approaches to achieve this goal, but nearly all aim to avoid jurors' use of online social media for obtaining extrinsic and inadmissible evidence. Further, they aim to avoid the constitutional issues that arise when jurors themselves attempt to communicate their own opinions via these online outlets.
1. The Federal Model (86)
The most logical place to start is the proposal of instructions prepared by the Judicial Conference of the United States in December 2009. The proposal first offers a suggestion for pre-trial instructions, which state, in relevant part:
"You, as jurors, must decide this case based solely on the evidence presented here within ... this courtroom.... [Y]ou 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." (87)
The instructions go on to specify ways in which to comply with the aforementioned guidelines:
"I know that many of you use cell phones, Blackberries, the internet, and other tools of technology.... 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, MySpace, Linkedin, and YouTube." (88)
Clearly, these instructions directly confront and preempt jurors' desire to rely on the Internet to provide extra-evidentiary information that will undoubtedly be inadmissible, and most likely prejudicial against the defendant.
The Conference then produced model post-trial instructions to warn against jurors' urges to use online social media to communicate their own opinions with other members of the jury or with members of the public. (89) The following (in pertinent part) is to be read to the jury in between the close of trial and the beginning of deliberations:
"... 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 website such as Facebook, MySpace, 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." (90)
2. The New York Version (91)
Like the federal model, New York's Criminal Jury Instructions admonish jurors about the dangers of Internet usage before, during, and after trial in an effort to spearhead the two-pronged concern mentioned above. New York's instructions even reference "this age of instant electronic communication and research" in order to stress the constitutionally dangerous implications that can arise from juror-misuse of "social websites such as Facebook, MySpace, or Twitter," as well as other technologically advanced media. (92)
Additionally, New York's version goes one step further and actually explains to the jurors why these rules are in place, as well as how breaking these rules threatens the administration of justice. (93) The section begins with "Now, ladies and gentlemen, I want you to understand why these rules are so important," and then proceeds to explain the significance of juries isolating themselves from any influence that was not deemed admissible by the court, so as to best uphold the validity of the verdict, which they are the only ones with the power to render. (94) The judge then applies this notion to similar media-specific rules, and informs the jury that "[t]hese rules are designed to help guarantee a fair trial, and, our law accordingly sets forth serious consequences if the rules are not followed." (95) This explanation for the rules is given, quite simply, in order to ensure better compliance with them. "If a juror understands why such conduct can compromise the integrity of a trial, it stands to reason that he or she may be less likely to give in to the temptation of conducting independent research or communicating about the trial." (96)
While jury sequestration may seem ideal, accessibility of Internet media is simply too high to guarantee sequestration's efficiency. Moreover, it is rare for deliberations in any trial to last long enough to even make sequestration necessary, or even possible. (97) Thus, the best chance a court has to avoid jurors' exposure to such extra-evidentiary information is to control it from within the courtroom, specifically through modernized jury instructions. (98) While jurors should be questioned about their personal Internet usage during voir dire, it is more important for judges to understand the magnitude of the threat the Internet poses to jurors' ability to remain impartial so that they can give detailed jury instructions regarding which information is prohibited during personal and collective deliberations. (99) Additionally, judges need to explain why certain information should. be avoided in order for jurors to better understand the constitutional and societal consequences of considering outside information. (100) Although both the Federal and New York models include separate instructions for the jury to hear before and after the trial, New York's version proves to be the more powerful of the two because of its explanatory element.
D. New York as the preferable model
States will be best-equipped to avoid the constitutional harms triggered by jurors' misuse of online social media by implementing pre-trial and post-trial instructions like those that New York has established. The Court of Appeals of Kansas has also stressed this belief, stating in dicta, "[w]e encourage [the consideration of] a revision to the general instruction on juror communication along the lines of that utilized in New York," before expressly offering to the jury New York's instructions previously mentioned in this section. (101) However, despite the unique benefits inherent within the New York system, there are additional considerations to explore that strengthen what is already an efficient approach.
1. Understanding social justifications increases the probability of rules-compliance.
First, the New York jury instructions are best suited to remedy these "Internet-ills" because they offer an explanation as to why it is important for jurors to follow the rules they have just received from the judge. Jurors conduct independent research, presumably, because they want to make sure they make the right decisions during deliberations. This is an admirable ambition that neither courts nor society should discourage. Thus, judges need to explain to jurors that though research may seem to further their duty, it may actually harm the defendant. When an individual, juror or not, understands the positive social repercussions that consequentially stem from following certain rules, he or she is more likely to obey them. (102)
Pierce and Cheney explain this theory with the analogy of spending during an economic recession. (103) When an individual is told. to continue spending during such periods, he will likely ignore this instruction if not given a reason to follow it, since it would. seem counterproductive to his desire to remain financially secure during economically stressful times. (104) However, the social justification behind the instruction, such as the general benefits continued spending can have on a faltering economy, may induce the individual to comply. (105) Much like the individual told. to spend during a recession, a juror may feel that refraining from outside research is counterintuitive to his role and duty as a juror. But once the juror understands the importance of protecting the defendant's constitutional rights, his probability of complying with the instruction will likely increase.
2. Repetition reinforces understanding, and in turn, better ensures compliance.
After first informing jurors of their responsibilities and admonishing them against taboo activities before trial, the New York model plausibly reemphasizes those instructions by reminding jurors of them after trial and before deliberations. (106) But--why stop there? Courts should. also explore the idea of reminding jurors of these rules and warnings throughout the trial. Though the adage "practice makes perfect" does not directly apply here, a similar cause-and-effect relationship can be seen when evaluating the reinforcement that results from continuously reminding juries of what they can and cannot do.
Pierce and Cheney use the example of a teacher attempting to curtail a student's misbehavior to argue that "interval schedules of reinforcement will always redirect behavior to the desired alternative...." (107) If judges re mind jurors of the court's instructions regarding the use of Internet and electronic communication devices at appropriate intervals throughout the trial, jurors will be more likely to catch themselves before they inadvertently stumble upon information that may prejudicially influence them.
3. Punishment serves as an adequate deterrent from violating instructions.
States will find it beneficial to make at least one substantive addition to its jury instructions after adopting New York's model--informing jurors of punishments to which they will be individually subjected if they violate any of the inflexible rules regarding communication and independent research. (108) "When rules are backed up with social punishments ... they are called orders or commands. Individuals follow orders because they have been punished for disobedience in the past." (109) This fear of being punished begins developing at the earliest stages of childhood and typically remains constant throughout the individual's life whenever an authority figure declares a rule and informs the individual of a punishment that will ensue if that rule is broken. (110) In other words, since an individual has been punished before for breaking a rule, he or she understands that punishment can happen again, so behavior must be adjusted in accordance with a rule if he or she wishes to avoid punishment. (111)
Questions remain, however, regarding "how much" punishment is enough to ensure jurors' compliance with jury instructions, and what constitutes punishment that is "too severe" for violating them. It is logical to argue that a "severe enough" punishment can deter noncompliance in one of two ways: it will either prompt the self-interested juror to act in a way that avoids personal subjection to the particular sanction; or, for the more socially cognizant juror, it will illustrate the necessity of the rule and the social importance of following it. Thus, it appears that informing jurors of the punishments associated with violating Internet-related jury instructions will induce essentially every juror, regardless of personal interest, to comply with them.
Most states agree that violations of such instructions fall under the misdemeanor offense of contempt of court. (112) However, states have varied extensively on the issue of what punishments will ensure the types of compliance mentioned above, creating quite a broad spectrum of possibilities. (113) This menu of options illustrates that there likely is no magical punishment that guarantees juror-compliance. Thus, each state should reserve the right to individually gauge what does and does not work for their judiciaries.
A recent sanction imposed on a juror by a Detroit, Michigan court illustrates the mild. end of the punishment spectrum. In this instance, a juror was held. in contempt of court for posting on Facebook "it'll be fun to tell the defendant they're guilty," while the jury was still in the deliberation process. (114) As a result, the judge required the juror to write a five-page essay on the importance of a defendant's fight to a fair trial under the Sixth Amendment. (115) Though Michigan presumably believes this to be enough to deter future jurors from similar misconduct, research indicates that most states threaten more severe sanctions in their attempts to increase juror compliance. (116)
A California law passed in August of 2011 seems to represent the opposite, harsher end of the punitive spectrum. (117) In addition to emphasizing judges' need to expressly proscribe any improper use of the Internet and cell phones by jurors, the law places those who violate such rules in criminal contempt of court, and makes such violations punishable by up to six months in prison. (118) Similar to Michigan's stance on ensuring compliance through punishment, California's law represents a unique extreme, and most states seem to fall somewhere between the two. (119) While jurors will presumably refrain from actions that will subject them to statutory punishments, it still stands to reason that deterrence will be even greater if jurors are constantly reminded of the consequence of acting afoul to the judge's instructions.
The extraordinary popularity of online social networks and their barrier-less accessibility conjunctively exasperate the Internet's potential to hinder the proper administration of constitutional justice during high profile trials. Jurors who avail themselves to networks such as Facebook, Linkedin, or Twitter are bound to see or hear something regarding the trial in which they are serving, despite their best efforts to avoid such inappropriately influential information. Whether a juror is trying to pander to the interests of the public, or is relying on a website for information not presented in the courtroom, the Internet all but guarantees any juror an opportunity to consider information beyond the confines of admissible evidence. Such misuse of unconstitutionally influential material not only violates enumerated rights of the accused, but also promises to slow down courtroom procedures by continually allowing defense teams to demand additional hearings. (120) With no indicia of an imminent "slowing down" of Internet usage occurring in the near future, the occurrence of these impairments to jurors' abilities to remain fair and impartial only stands to increase unless courts modify how they instruct and monitor jurors in the context of their Internet behavior.
Because of the inherent shortcomings of jury sequestration, the modern trend among states has been to modify their pattern jury instructions so that jurors are aware of what information is prohibited and why they need to refrain from accessing such information. Once jurors understand their individual obligations, as well as the social and punitive repercussions of not fulfilling them, they are more likely to refrain from individually violating a judge's orders. The punitive aspect will likely deter personal misconduct, but knowledge of social and constitutional consequences may encourage individual jurors to remain vigilant of the actions taken by other jurors. Assuming this altruistic role allows the individual juror to personally serve as an additional check on evidentiary abuse by fellow jurors.
(1.) Charles Peguy Quotes on Media, PHILOSOPHICAL QUOTES & POEMS (2010), http://www.philosophical-quotes-and-poems.com/Great-Philosophical- Quotes/dailyphilosophy-quotes-office-lnstinct.htm (last visited May 8, 2012).
(2.) PC Magazine Encyclopedia defines "'social networking website," in part as "[a] Web site that provides a virtual community for people to share their daily activities with family and friends, or to share their interest in a particular topic, or to increase their circle of acquaintances. There are dating sites, friendship sites, sites with a business purpose and hybrids that offer a combination of these." The most popular of these sites include Facebook, Twitter, Linkedln, and MySpace. PC MAGAZINE, http://www.pcmag.com/encyclopediaterm/0,2542,t=social%2Bnetworking&i-5 5316,00.as p (last visited May 6, 2012).
(3.) See Jane Musgrave, Online 'lynch mob' led Casey Anthony's defense team to adapt, jury consultant says, THE PALM BEACH POST, July 7, 2011, http://www.palmbeachpost.com/news/online-lynch-mob-led-casey -anthonys-defense-team-1587923.html?printArticle=y (explaining that the extensive media coverage of the Casey Anthony murder trial in 2011 prompted over 1,000,000 people to voice their opinions regarding the trial and Anthony herself, via online social networks).
(4.) See Cohen v. Facebook, Inc., 798 F. Supp. 2d 1090, 1092 (N.D. Cal. 2011) (stating, ".... Facebook has emerged as a platform on which individuals can disseminate vast amounts of information, ranging from trivial details.... to breaking developments in international newsmaking events.... During Facebook's growth, however, it has.... introduced new features ostensibly designed to facilitate its users' abilities to share and obtain information that have provoked objections from some that the system is distributing too much information automatically, without users' consent or intent....").
(6.) Patterson v. Colorado, 205 U.S. 454, 472 (1907).
(7.) U.S. CONST. Amend. VI (emphasis added).
(8.) U.S. CONST. Amend. XIV, [section] 1.
(9.) See Irvin v. Dowd, 316 U.S. 717, 722 (1961) ("In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process.").
(10.) Rivera v. Illinois, 556 U.S. 148, 161 (2009) (quoting Gomez v. U.S., 490 U.S. 858, 876 (1989)).
(11.) State v. Dellinger, 696 S.E.2d 38, 43 (W.Va. 2010) (quoting State v. McMillion, 138 S.E. 732, 735 (W.Va. 1927) (citing State v. Ashcraft, 309 S.E.2d 600, 607 (W.Va. 1983)).
(12.) Sheppard v. Maxwell, 384 U.S. 333,351-56 (1966).
(13.) Id. at 351 (citing Irvin, 366 U.S. at 728).
(14.) See id.
(15.) Id. at 352.
(16.) Id. at 352.
(17.) See Musgrave, supra note 3.
(18.) See Kyle Hightower, Casey Anthony cleared of murdering young daughter, THE DENVER POST, July 5, 2011, http://www.denverpost.com/breakingnews/ ci_18411480.
(19.) In addition to the Anthony trial, Singer also served as a jury consultant for the defense teams in Michael Jackson's child molestation trial and Dr. Jack Kevorkian's trial focusing on physician-assisted suicide.
(20.) See Musgrave, supra note 3.
(22.) Nevada Supreme Court Reverses Conviction on the Basis of Spillover Prejudice, 124 HARV. L. REV. 1596, 1598 (citing a 2001 poll indicating that 72% of Americans still believed O.J. Simpson was guilty of murdering his Nicole Simpson and Ronald Goldman, even 5 years after his acquittal).
(23.) Patterson, 205 U.S. at 462.
(24.) Frank J. Mastro, AMERICAN BAR ASSOCIATION, Preventing the "Google Mistrial": The Challenge Posed by Jurors Who Use the Internet and Social Media, 37 LITIGATION 23, 27 (2011).
(25.) See Jordan B. Yeager and Ronalyn K. Sisson, PENNSYLVANIA BAR ASSOCIATION, The 2011 Tech Issue. Maximizing the Possibilities, Minimizing the Risks of Using Social Media, 33 PENN. LAWYER 26 (2011).
(26.) David Keppler, Facebook founder Zuckerberg returns to Harvard to recruit tech talent, THE WASHINGTON POST, November 7, 2011, http://www.washingtonpost.com/business/technology/facebook-founder-mark- zuckerberg-returning-to-harvard-to-recruit- tech-talent/2011 /11/07/glQAAMAwvM_story.html.
(28.) Nicholas Carlson, How Many Users Does Twitter REALLY Have?, BUSINESS INSIDER, (March 31, 2011 ), http://articles.businessinsider.com/2011-03- 31/tech/30049251_1 twitter-accounts-active- twitter-user-simple-answer.
(29.) Naveed Anjum, LinkedIn: Reach 119 Million Members Worldwide, (Sept. 9, 2011), http://www.docstoc.com/docs/94007817/Linkedin-Reach- 119-(M) -Member-WorldWide.
(30.) Dawn C. Chmielewski & Jessica Guynn, News Corp. Sells MySpacefor $35 Million, LOS ANGELES TIMES, June 30, 2011, http://articles.latimes.com/2011/jun/30/business/ la-fi-ct-myspace-sale-20110630.
(31.) Dawn C. Chmielewski & David Sarno, How MySpace fell off the pace, Los ANGELES TIMES, June 17, 2009, http://articles.latimes.com/2009/jun/17/business/fi-ct-myspace 17.
(32.) See Yeager & Sisson, supra note 25, at 26-27.
(33.) Id. at 26.
(34.) Josh Farley, Online News Story Commenters Face Scrutiny As Would-Be Jurors, KITSAP SUN, October 31, 2010, http://www.kitsapsun.com/news/2010/ oct/30/lawyers-in-skmurder-trial-asking-would-be-if- on/.
(35.) See Mastro, supra note 24, at 25.
(36.) Id. at 25.
(37.) Ron Spears is a federal judge for the Fourth Circuit and the President of the Illinois Judges Association.
(38.) Hon. Ron Spears, Looking for "facts" in all the wrong places. jurors--and yes, lawyers and judges--increasingly use social networking sites and other Internet tools to gather and exchange information. But some of these practices undermine the quest for a fair trial, 98 ILL. B. J. 102 (2010).
(40.) ILLINOIS SUPREME COURT COMM. ON PATTERN JURY INSTRUCTIONS IN CIVIL CASES, GENERAL CAUTIONARY CASES, [section] 1.01 (2011).
(41.) See Spears, supra note 38 (emphasis added).
(42.) See Musgrave, supra note 3.
(46.) See Monica C.M. Leahy, Pretrial Involving Facebook, MySpace, Twitter, and Other Social Networking Tools, 121 AM. JUR. 3D Proof of Facts [section] 2 (2011) (noting that, among other requirements, information on social media sites cannot be hearsay if it is to be admitted in court. The unqualified nature of social media posts and blogs will nearly always render them inadmissible).
(47.) See Spears, supra note 38.
(49.) S.E. Pitt et al., Group Dynamics" in Forensic Pretrial Decision-Making, 25 J. AM. ACAD. PSYCHIATRY L. 95, 96 (1997).
(52.) See JEFFREY T. FREDERICK, MASTERING VOIR DIRE AND JURY SELECTION 155-56 (1995) (noting that other types of group dynamics are at play within a jury, including "subgroup formation" and majority influence within the jury itself).
(53.) See ROY F. BAUMEISTER & BRAD J. BUSHMAN, SOCIAL PSYCHOLOGY & HUMAN NAYURE 267 (2009).
(56.) Ramesh Deosaran, Towards a Social Psychology of Trial By JURY, 24 BRIT. J. CRIMINOLOGY 343, 347 (1984).
(58.) Christine Martin, Social Media. A Hidden Force at Jury Trials, available at http://www.decisionquest.com/utility/showArticle/?objectID=736 (last visited May 11, 2012).
(60.) Abraham S. Goldstein, Jury Secrecy and the Media. The Problem of Postverdict Interviews, 1993 U. ILL. L. REV. 295 (1993); see also BAUMEISTER & BUSHMAN, supra note 53, at 267 (illustrating this concept by referencing a study in which 77% of women surveyed washed their hands after using the restroom, "but only if they thought someone else was in the restroom too." That number dropped to 39% when those surveyed believed they were alone. "The motivation behind socially desirable behavior ... can be to gain acceptance and approval from others.")
(61.) Goldstein, supra note 60, at 295.
(62.) Id. at 296-97.
(63.) Id. at 314 (cited in New Jersey v. Neulander, 801 A.2d 255 (N.J. 2005) (holding in part that a defendant's right to a fair trial ought to be balanced against the public's rights to knowledge of the goings-on of high profile litigation when determining whether or not media's presence inside the courtroom during trial may prejudice the defendant)).
(64.) Goldstein, supra note 60, at 295 (citing Clark v. U.S., 289 U.S. 1, 13 (1933)).
(66.) See Mastro, supra note 24, at 24.
(67.) C. Mo Bahk, Reliance, Immersion, and Enjoyment: An Exploratory Socio-Psychological Analysis on Internet Involvement, 8 COMM. OF THE INT'L INFO. MGMT. ASS'N 59 (2008).
(68.) Robert Little, Juror Contact in '06 with Dixon, Witness Could Cause Mistrial, THE BALTIMORE SUN REPORTER, December 5, 2009, http://articles.baltimoresun.com/2009- 1205/news/bal-md.juror05dec05_l_dixon- trial-juror-contact-main_streets_program.
(72.) See Mastro, supra note 24, at 23.
(74.) BLACK'S LAW DICTIONARY at 1489 (9th ed. 2009).
(75.) Gannet Co. v. DePasquale, 443 U.S. 368, 378 n.5 (1979).
(76.) Sheppard, 348 U.S. at 351 (1966).
(77.) Brian Haas, Social media take the stand, THE TENNESSEAN, March 13, 2011, at B15 (quoting Chris Slobogin, law professor and director of the criminal justice program at Vanderbilt University Law School).
(78.) See Mastro, supra note 24, at 25.
(80.) BLACK'S LAW DICTIONARY at 1710 (9th ed. 2009).
(81.) See Spears, supra note 38, at 102.
(82.) See Haas, supra note 77.
(83.) See Farley, supra note 34.
(86.) FEDERAL EVIDENCE REVIEW, Editor's Blog, Model Jury Instruction Recommended to Deter Juror Use of Electronic Communication Technologies During Trial (Feb. 9, 2010), available at http://federalevidence.com/blog/2010/february/ model-jury-instructionrecommended-deter-juror-use-electronic -communication-tech.
(91.) N.Y. JURY ADMONITIONS IN PRELIMINARY INSTRUCTIONS (May 5, 2009), available at http://www.nycourts.gov/cji/1-General/CJI2d.Jury_Admonitions.pdf [hereinafter N.Y. Jury Admonitions].
(96.) See Mastro, supra note 24, at 26. Alabama has also encapsulated this same idea into its recently modified Pattern Jury Instructions for civil trials with the simplified language "your verdict must be based only on the legal evidence that is presented in this courtroom." Jurors are required to accept the court's definitions of any terms, legal or otherwise. Any attempt to conduct independent research is deemed "highly improper" and "can cause [a jury's] verdict to be thrown out." Moreover, these instructions strictly prohibit jurors from reading, listening to, or watching any media reports on the case. See ALABAMA PATTER JURY INSTRUCTIONS COMM.-CIVIL, JURORS NOT TO MAKE INVESTIGATION, APJI [section][section] 1.12-1.13 (2011).
(97.) See Jury Service in the United States, IIP DIGITAL, available at http://iipdigital.usembassy.gov/st/english/publication/2009/ 07/20090706162635ebyessedo5. 389911e-02.html#axzzlmUE5s7Dz, (last visited May 12, 2012) (stating that the average duration of jury deliberation, criminal and civil, is about four hours).
(98.) See Caren Myers Morrison, Can the Jury Trial Survive Google?, 25A.B.A.J. CRIM. JUST. 4, 13-15 (2011).
(99.) See Haas, supra note 77.
(100.) See Mastro, supra note 24, at 26.
(101.) State v. Mitchell, 45 252 P.3d 586, 591 (Ka. Ct. App. 2011) (describing, generally, about various jury-related issues including the types of juror misconduct that warrant a mistrial, the credibility of a race-neutral explanation for striking an African-American juror, the burdens of declaring a new trial based on alleged juror misconduct, and also sentencing guidelines in the context of a defendant's Sixth and Fourteenth Amendment rights) (also citing and agreeing with Henri v. Curro, 908 N.E.2d 196, 202-03 (Ind. 2009) (positing that "[t]he best practice ... is to discourage, restrict, prohibit, or prevent access to mobile electronic communication devices by [jurors] during all trial proceedings, and particularly...during jury deliberation")).
(102.) DAVID W. PIERCE & CARL D. CHENEY, BEHAVIOR ANALYSIS AND LEARNING 319 (3d ed. 2004).
(106.) See N.Y. Jury Admonitions, supra note 91.
(107.) Id. at 312.
(108.) It is important to emphasize that "punishments" in this context are distinct from the social and constitutional consequences of violating jury instructions previously discussed.
(109.) PIERCE & CHANEY, supra note 102, at 316.
(110.) Moral Development, ENCYCLOPEDIA OF CHILDREN'S HEALTH, available at http://www.healthofchiId.ren.com/M/Moral-Development.html (last visited May 10, 2012).
(112.) See Morrison, supra note 98, at 13.
(114.) See Morrison, supra note 98, at 13.
(116.) See Sharon Nelson, John Simek, & Jason Foltin, The Legal Implications of Social Networking, 22 REGENT U. L. REV. 1, 6 (2009-2010) (stating that Michigan has, however, been stricter than most states in that it has implemented a law banning any use of "electronic communication devices, such as iphones and BlackBerrys, while in the jury box or during deliberations").
(117.) Bob Egelko, Jurors to Be Told. Not to Tweet Under New Law, SAN FRANCISCO CHRONICLE, August 6, 2011, at C2.
(119.) See Juror Punished for 'Facebooking" a Defendant, PENNSYLVANIANS FOR MODERN COURTS, (Aug. 30, 2011), http://www.pmconline.org/node/477 (explaining that a Texas juror was sentenced to two days of community service for attempting to friend a defendant on Facebook)."
(120.) See Leahy, supra note 46, at [section] 8.
Miland F. Simpler, III, J.D. Candidate, University of Alabama School of Law, 2013; B.A. University of Alabama, 2010.
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|Author:||Simpler, Miland F., III|
|Publication:||Law and Psychology Review|
|Date:||Jan 1, 2012|
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