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The Importance of Addressing Social Media at Trial

(Part Two of a Two Part Discussion)

By:  J. Paul Zimmerman, Esq.
Partner, Christian & Small
Birmingham, AL

In the current age of digital and social media, juror use of social media is perhaps one of the greatest concerns facing courts and litigants. Concluding this two-part series, Christian & Small Partner J. Paul Zimmerman addresses the dangers of tweeting, posting, sending messages or blogging during trial, and  offers suggestions for minimizing misconduct and stressing the need for specific jury instructions to address social media concerns. Click here to view Part One of the series that was included in the May issue of the Primerus Xpress.

The Dangers of Tweeting, Posting, Sending Messages or Blogging During Trial

The basic concerns surrounding social media use by jurors are not new – communication during trial proceedings or deliberations divides the juror’s attention and distracts others. But that is only the beginning. In addition to presenting another convenient mechanism to publish information related to the trial, social media is a direct route for the introduction of “extraneous information” to jurors from a virtually unlimited number of people. The ability that others have to comment on and to forward posts by jurors invites feedback, which provides opportunities for extraneous information or influence on the jury and may affirmatively attempt to influence a trial’s outcome.

Juror use of social media disregards the court’s typical instructions on communicating with others about the case. In Dimas-Martinez v. State, the appellant raised the issue of a juror tweeting during the trial contrary to the court’s instructions. The Arkansas Supreme Court concluded that the “appellant was denied a fair trial where the juror disregarded the circuit court’s instruction and tweeted about the case.”

The court noted that the appellant’s claim was not simply that the juror tweeted about the case; rather, the appellant argued that the juror continued to disobey the trial court’s instructions, which prejudiced the appellant. “The circuit court’s failure to acknowledge this juror’s inability to follow the court’s directions was an abuse of discretion.”

Another example of juror misconduct is a juror’s (or venire member’s) deception regarding social media activity. In Commonwealth v. Sluss, the Supreme Court of Kentucky avoided the question of whether being Facebook friends with parties to the case is itself prejudicial, holding that any prejudices resulted from the juror’s deception in response to voir dire questions. However, the court held that the “appellant could not have reasonably ferreted out the information regarding the juror’s apparent falsehood during trial. He is at least entitled to an adequate post-trial hearing to examine this issue. In many cases, proof of juror falsehoods by themselves has been enough to require reversal.” That being said, it is worth noting that the court’s sympathy for trial counsel’s reluctance to explore the jurors’ social media behavior may no longer be consistent with best practices and ethical duties of trial counsel.

The basic concern with social media contact is a traditional one regarding extraneous influence. Courts have held that if even one juror is led to prematurely decide a case or to make a decision based upon extraneous information, the parties are deprived of a fair trial. This concern is magnified by social media’s instantaneous nature and because of how many people such communication can reach, which presents many more opportunities to influence the juror and does not even touch upon the increasing rate at which jurors conduct online research during trials or deliberation.

Because of the difficulty a litigant faces in demonstrating sufficient prejudice and the increased risks associated with social media, the preferred strategy is to prevent the issue from arising at all. Furthermore, even if the misconduct cannot be entirely prevented, correcting the misconduct through further admonishment or dismissing a juror is much more likely than obtaining a mistrial or a new trial.

Addressing Social Media Use Through Jury Charges

Action must be taken to decrease the jury’s social media contact and to simultaneously preserve issues for appeal. But what action accomplishes both of these tasks? Restricting jurors from using or accessing cell phones during trial or even solely during deliberations may not be practical for a an extended trial. But an argument can be made that this is no different from sequestration before the age of cell phones and smart phones, which was not so long ago. More and more commentators are calling for the exclusion of cell phones from the jury room during deliberation.

In the absence or modification of an appropriate pattern jury instruction, a formula should be followed to prepare specific jury instruction regarding social media. These instructions should:

  • inform jurors specifically what is prohibited and why;
  • be scalable to characteristics of the case, such as the duration and level of media attention;
  • be balanced so as to not place too much emphasis on social media to the marginalization of the court’s other instructions to the jury; and
  • be given or referenced each time the jury is dismissed, even for short breaks.

Many states have developed pattern jury instructions regarding social media use – but case law testing the appropriateness or sufficiency of these instructions is lacking. Also, failure to admonish a jury at a particular recess is unlikely to be reversible error when the jury was properly instructed on other occasions.

Admonishments specifically referencing social media should be requested every time the court instructs the jury not to discuss the case or perform outside research because many jurors do not associate this instruction not to “communicate” about or “discuss” the proceedings with posting on social media. Reminders should specifically mention social media outlets such as Facebook, Twitter, Instagram, and blogs, as some jurors may not associate a general admonishment with their Facebook, Twitter or Instagram habits, or refrain from their habitual postings.

When social media communications are discovered or suspected, an attorney should obtain detailed information about the communication, request an instruction by the court regarding the prohibited contact, and request that the juror be questioned on the record and away from other jurors regarding:

  • the subject matter of the contact;
  • to whom it was directed;
  • the medium of the exchange;
  • whether any responses were received; and
  • the content of the communications.

This inquiry should not be delayed. Obtaining any inquiry beyond such questioning is likely to be seen as an imposition on the juror, and most courts will not allow an inquiry regarding discussions among jurors about the contact. Parties may never know the harm caused due to the inherent difficulty in accessing a juror’s private social media messages. Preventing such communication is better than trying to assess or remediate any damage to the trial process after it occurs.

In conclusion, the fundamental issue of social media interference in trial proceedings is juror misconduct. At its core, a juror’s social media use about a trial violates the court’s instructions against communicating about a case. Using social media for such communication adds a magnified risk through its opportunity for wide, contemporaneous distribution, and attorneys must work to prevent or correct it in their trial practice.

While the courts must tackle the difficulties that social media and any related technologies impose, no solution will be perfect, and no solution will fit all situations.

About Christian & Small LLP

Christian & Small LLP represents a diverse clientele throughout Alabama, the Southeast and the nation with clients ranging from individuals and closely held businesses to Fortune 500 corporations. By matching highly experienced lawyers with specific client needs, Christian & Small develops innovative, effective and efficient solutions for clients. Christian & Small focuses on the areas of litigation, business and tax and is a member of the International Society of Primerus Law Firms and the only Alabama member firm in the Leadership Council on Legal Diversity. More information at www.csattorneys.com.