This week the Federal Judiciary Center issued a report on (1) juror use of social media to communicate during trials and deliberations; and (2) attorney use of social media to conduct research on potential jurors during voir dire. This 2014 report is a follow-up on a similar report in 2011. To read my prior criticism of the 2011 report go here.
While this 2014 report does have some positive attributes, it still suffers from the same fatal flaw as the 2011 report. For example, like with the 2011 report, the 2014 report surveys federal judges to determine whether or not jurors improperly use social media. Judges are not necessarily in the best position to make this determination. Thus, when the report says that "social media use by jurors is infrequent" one has to question the accuracy of that statement. Why not ask the jurors themselves or the numerous consulting companies that are now advertising set prices to monitor the social media use of jurors see e.g., jury scout?
Another downside of this report is the revelation that some federal judges (120 out of 466) do not allow attorneys to research jurors online. I, along with others, think that these 120 judges are wrong. Why should attorneys be prevented from doing the same thing that employers, landlords, or first dates now do on a regular basis? In the Digital Age, it has become quite common to Google people before and after you meet them. I have previously written about the benefits of researching jurors online here.
On the positive side, this report contains a large number of sample internet-related jury instructions, which also brings me to my last point. Although this report is sorely lacking in many areas, it should be acknowledged that at least the Federal Judicial Center is attempting to bring attention to the impact of social media on jurors and jury selection. By publishing reports like this and sharing information such as jury instructions, judges can better understand how to prevent jurors from conducting independent research or making improper online communications.