Nicole Black, The Daily Record Newswire
In past columns, I’ve reported on the undeniable effect that social media is having on the practice of law. Social media is popping up in all aspects of practice. Crimes are being committed using social media. Prosecutors and law enforcement are using social media to investigate and prosecute criminal activity. Attorneys in all areas of practice, ranging from litigation to matrimonial, are seeking to obtain social media evidence via subpoena or during discovery.
Lawyers are experimenting with using social media to make their client’s case, with George Zimmerman’s defense counsel being a prime example of this. Law firms are using social media tools for client development purposes. And, finally, social media use by jurors has derailed trials across the country.
Interestingly, it’s jurors’ use of social media that has been the cause of much judicial angst and media attention in recent months. In fact, as I’ve discussed in past columns, judges have gone so far as to fine or even jail jurors who have used social media during trial, and legislators have proposed laws that would criminalize such conduct.
This, even though a report issued by the Federal Judicial Center in November of 2011 (http://tinyurl.com/FedSocMedRpt) found that only 6 percent of the 508 federal district court judges who responded to the survey reported encountering instances of jurors using social media during trial or deliberations. Furthermore, of those 6 percent, the vast majority of judges (93 percent) reported having seen jurors use social media on only one or two occasions.
Nevertheless, even though the rate of social media use by jurors is low and despite the reality that the occasional violation of judicial mandates has always occurred, the Federal Model Jury Instructions have now been amended to incorporate a plethora of warnings and admonitions designed to deter jurors from using social media during the course of a trial.
The new instructions prohibit the use of all electronic communications: “You may not communicate with anyone about the case on your cell phone, through email, BlackBerry, iPhone, text messaging, or on Twitter, through any blog or website, including Facebook, Google+, My Space, LinkedIn, or YouTube. You may not use any similar technology of social media, even if I have not specifically mentioned it here. I expect you will inform me as soon as you become aware of another juror’s violation of these instructions.”
Importantly, the new amendments also include an explanation of the reasoning the ban, arguably aiding the jurors in understanding its purpose: “You may not use these electronic means to investigate or communicate about the case because it is important that you decide this case based solely on the evidence presented in this courtroom. Information on the Internet or available through social media might be wrong, incomplete or inaccurate. You are only permitted to discuss the case with your fellow jurors during deliberations because they have seen and heard the same evidence you have. In our judicial system, it is important that you are not influenced by anything or anyone outside of this courtroom. Otherwise, your decision may be based on information known only by you and not your fellow jurors or the parties in the case. This would unfairly and adversely impact the judicial process.”
The amendments also include the recommendation that these instructions be offered repeatedly throughout the course of the trial: “These instructions should be provided to jurors before trial, at the close of a case, at the end of each day before jurors return home, and other times, as appropriate.”
While I don’t disagree with the arguable need for the amendments, I do object to the unnecessary hype surrounding the “problem” presented by social media use by jurors when the reported incidence of juror misconduct of this type is so low. The sheer number of times that the amendments suggest referencing social media use and the frequency with which judges are advised to issue these warnings throughout a trial is overkill.
Instead, I would argue that a specific admonition regarding social media at the start and conclusion of each case would be sufficient, with a more general admonition given at the end of each day.
The truth is that juror misconduct in the form of unauthorized research and discussion about a case is nothing new. It is the medium for potential misconduct that is novel and different and overreacting to the reality of unavoidable technological change is unnecessary and does a disservice to the profession.
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Nicole Black is VP at MyCaseInc.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at niki@mycaseinc.com.
