The explosion of social media and the universal availability of electronic devices have presented a host of courtroom issues the judicial system must address, ranging from substantive legal questions like the admissibility of Facebook accounts and Twitter postings, to more ministerial issues such as the extent to which electronic devices may be utilized by counsel in the courtroom. While different courts have reached varied conclusions on these questions, courts have uniformly rejected any attempt by jurors to use technology to research a case or to post information about a case to social media sites, and increasingly use pre-trial and post-closing jury instructions.
The Judicial Conference of the United States has endorsed proposed model jury instructions aimed at advancing two goals:
- Preventing jurors from independently researching a case, including through the internet or other electronic means; and
- Preventing jurors from communicating about the case, including by electronic means such as e-mail or Facebook.
In addition to the model instructions drafted by the Federal Judicial Conference, several states, including New York and California, have adopted their own instructions to admonish the use of social media and electronic devices to research a case. Courts are beginning to employ these instructions.
Best practices for handling social media at trial requires certain diligence. Counsel should evaluate the risk of juror use of social media and electronic research as part of effective trial preparation. Counsel should identify what information is publicly available and evaluate whether to address it at trial, anticipating that a juror may ignore the court’s instruction to refrain from electronic sleuthing. Counsel should further insist that the jury be properly instructed on the use of electronic devices and social media prior to the start of trial, and again prior to deliberations. Counsel may also request that the court remind jurors of their obligations at appropriate intervals during trial and deliberations. To the extent permissible, counsel may also wish to monitor jurors’ social media accounts to ensure that the panel is complying with the court’s instructions.