LawPulse

Authors of a Chicago-based study of jury behavior conclude that jurors actually listen to instructions from judges not to communicate about the case.

In some high profile cases nationwide, jurors have used social media while they're impaneled and been punished by the court. In other cases, judges have resorted to draconian measures to prevent the practice from happening in the first place.

But a recent study by two Chicago judges and an associate at a large Chicago law firm suggests that such punitive measures are unnecessary. Of the nearly 600 jurors they surveyed, most said they were not tempted to use social media. And those few who were tempted said they understood and respected the judge's instructions not to communicate about the case by any means.

'I took an oath'

The study, spearheaded by U.S. District Judge Amy St. Eve, who sits in the Northern District of Illinois, was conducted over three years by surveying jurors who heard civil and criminal cases in St. Eve's courtroom and those who heard criminal cases in the Chicago criminal courthouse before Cook County Circuit Judge Charles P. Burns, another study co-author. Michael A. Zuckerman, formerly a clerk for St. Eve and now an associate at Jones Day in Chicago, also participated in drafting the study's findings.

In all, 583 jurors were given short surveys after the conclusion of a case. Participation was voluntary, and jurors who responded did so anonymously. The survey asked: "Were you tempted to communicate about the case through any social networks, such as Facebook, My Space, LinkedIn, YouTube or Twitter?"

The study, entitled "More From The #Jury Box: The Latest on Juries and Social Media," was published earlier this year by the Duke Law and Technology Review. It showed that eight percent of respondents, or 47 jurors, admitted they were tempted to use social media during their jury service but did not succumb. The reason cited by the jurors was the judges' constant instruction that they not use social media or any other means to discuss the cases they were hearing.

Acknowledging that the study was not scientific and very informal, the authors found the responses significant and said one of the most important ways to maintain impartiality and fairness during trials in this social media age is for judges to instruct jurors not to use social media to discuss the case. "In many of the longer trials, the judge daily admonished jurors not to communicate about the case through social media," the study authors wrote. Here were some of the jurors' responses:

• "I morally thought I should obey the judge."
• "Judge's orders and importance to the case."
• "I was tempted but told not to, so I followed the rules."
• "Wanted to, but knew I could not."
• "I took an oath."
• "I follow rules under the oath I made."
• "I knew it was my duty to fulfill the oath I took before the court not to say anything."
• "I took this very seriously and wanted to do what I swore I would."
• "Afraid I'd be bias."
• "To keep an open mind."
• "I didn't want to ruin the trial or get arrested or something."
• "Jail."

Instructions more respectful of jurors

Based on the survey results, St. Eve, Burns, and Zuckerman advocate for clear and repeated instructions by judges to keep the trial process fair and avoid mistrials or reversals by appellate courts. "The informal survey responses, though unscientific, support the emerging majority view that the best way to ensure an impartial jury in the age of social media is through carefully crafted jury instructions. As borne out by jurors in our sample, such instructions can effectively mitigate the risks of juror misconduct associated with social media.

"Unlike more draconian tools like threats of imprisonment and blanket technology bans, social media instructions are more respectful of jurors and less likely to negatively impact their willingness to serve," the study authors concluded.

A judge in Missouri last year sentenced a juror to two months in jail for contempt after learning that he had communicated with a friend on Facebook about his service as the jury foreperson in a civil case, according to the study.

Similarly, a juror in the United Kingdom was jailed for using social media to express his contempt for pedophiles as he was sitting in judgment of an accused pedophile.

And the Tennessee Supreme Court last year remanded the case of a murder conviction, instructing the trial court to conduct a hearing about whether a juror's Facebook communication with a witness in the case, a medical examiner affiliated with Vanderbilt University, affected the juror's impartiality.

Zuckerman acknowledged in an interview that some judges in jurisdictions throughout the country are resorting to draconian tactics, but he believes such measures are unnecessary. "They're out there and available to some extent. There are a lot of problems with them," he said.

"Before we go down that road, the more productive solution is the one courts have used for hundreds of years: Instruct jurors what to do and what not to do. We have to assume jurors will follow those instructions."