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Article: May 2014 Trial Practice Update

May 01, 2014
Business Litigation Reports

Courts, Lawmakers, and Other Groups Grapple with Juror Misuse of Social Media and the Internet. Jurors are expected to decide cases based on evidence they see and hear in the courtroom, after deliberating while sequestered from outside influences. For decades, courts have enforced rules and practices designed to make these expectations reality. At the outset of their service, jurors are admonished not to discuss the case with anybody. Courtroom officers whisk jurors out of the jury box when there is extended argument about potentially inadmissible evidence. Lawyers know that anything more than a polite greeting to a juror in a courtroom elevator is off-limits. And judges instruct jurors to avoid media accounts regarding high-profile cases.

Despite best efforts, the proliferation of internet and smartphone use has made it more difficult to prevent improper information flow to and from jurors. The internet and smartphones provide easily-accessible, tempting launchpads for jurors to quickly (1) get unauthorized information about cases on which they are serving; and (2) voice views and opinions about cases and case participants on social media sites. Both practices create problems for the trial system.

The juror who collects information on the internet about a case or its participants (parties, witnesses, or lawyers) jeopardizes her ability to decide the case based solely on the evidence in the record, and risks infecting the rest of the jury pool with that information. Even if the juror keeps the information to herself, she has denied litigants the opportunity to confront, in open court, information that may drive a verdict. And even if the misconduct comes to light before deliberations, remedies such as a mistrial drain financial and temporal resources from an already-overburdened legal system.

The juror who tweets or uses other social media tools to discuss a litigant or case risks causing a multitude of problems. Tweets may disclose confidential information subject to a protective order. The juror may become enmeshed in discussion that will impact her views of the merits. And social media statements from jurors in the middle of a case risk giving litigants a midstream “read”—correct or not—about how the juror views the case. Remedies once the violation has occurred again create inefficiencies and potential unfairness.

Examples of cases in which these issues have arisen abound. In one recent case, a juror went online during a trial and researched the law firm website for counsel of one of the parties. See Zhou v. Mazda Motor Corp. of Am., No. A133031, 2013 WL 204695, at *13 (Cal. App. Jan. 18, 2013) (affirming grant of new trial). The website included statements that the court found were prejudicial to the opposing party. Id. In another case, a juror researched the judge online and read an article regarding alleged facts in the case, and another juror researched the phasing of the trial itself. See In re MTBE Prods. Liability Litig., 739 F. Supp. 2d 576, 592 (S.D.N.Y. 2010) (denying new trial).

Different participants in the legal system have taken different steps to address these issues. Revised jury instructions are a principal tool. A committee of the Federal Judicial Conference—a group made up of federal judges, lawyers, and academics that serves as the principal policy-making body for the federal courts—recently released a new set of model jury instructions. Along with broader, traditional admonitions about juror conduct, the instructions specifically prohibit communicating “with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, including Facebook, Google+, My Space, LinkedIn, or YouTube.” See

The American College of Trial Lawyers—a professional organization of trial lawyers from the United States and Canada—also recently prepared a set of model jury instructions targeting these issues. The instructions warn against communicating “via emails, text messages, tweets, blogs, chat rooms, comments or other postings, Facebook, MySpace, LinkedIn, or any other websites.” See American College of Trial Lawyers, Jury Instructions Cautioning Against Use of the Internet and Social Networking (Sept. 2010), available at They also provide model language for summonses to prospective jurors, warning against “research on sites such as Google, Bing, Yahoo, Wikipedia, Facebook or blogs.”

The Judicial Council of California—the policymaking body of the California courts—recently changed its preliminary admonition to prohibit communications using “any electronic device or media, such as a cell phone or smartphone, PDA, computer, the Internet, any Internet service, any text or instant-messaging service, any Internet chat room, blog, or Web site, including social networking websites or online diaries, to send or receive any information to or from anyone about this case or your experience as a juror until after you have been discharged from your jury duty.” See Judicial Council of California, Civil Jury Instruction 100 (Preliminary Admonitions).

New York’s Civil Pattern Jury Instructions advise jurors that “[i]t is important to remember that you may not use any internet services, such as Google, Facebook, Twitter or any others to individually or collectively research topics concerning the trial, which includes the law, information about any of the issues in contention, the parties, the lawyers or the court. After you have rendered your verdict and have been discharged, you will be free to do any research you choose, or to share your experiences, either directly, or through your favorite electronic means.” See

Other legal system participants have taken other measures. The California legislature recently amended the California Code of Civil Procedure to statutorily prohibit “all forms of electronic and wireless communication” by the jury during trial or deliberations. Cal. Civ. Proc. Code § 611. Under this rule, a juror may not “conduct research, disseminate information, or converse with, or permit themselves to be addressed by, any other person on any subject of the trial, and [may not] form or express an opinion thereon until the case is finally submitted to them.” Id. The law permits jurors guilty of a willful violation to be charged with contempt of court. Cal. Civ. Proc. Code § 1209(a)(6).

Some jurisdictions have banned jurors from using electronic devices for any purpose during trial and deliberations. For example, Michigan state courts recently revised their rules to require an instruction that jurors may not “use a computer, cellular phone, or other electronic device with communication capabilities while in attendance at trial or during deliberation,” although they may be used on breaks or recesses. See MCR Rule 2.511(h)(2). Further, jurors may not “use a computer, cellular phone, or other electronic device with communication capabilities, or any other method, to obtain or disclose information about the case when they are not in court.” Id.

As technology increases opportunities for jurors to give and get information related to the cases they are charged with deciding, legal system participants continue to formulate mechanisms—through laws, court rules, and jury instructions—to prevent improper information flow. Although none of these methods is foolproof, litigants seeking to prevent inappropriate electronic information flow to and from jurors should raise the issue with the court at an early stage, and present the court with recommendations for how to address the issue proactively.