Demise of the Trial by Jury – Is Social Media to Blame

By Maggie Tamburro
Add “impartial juror” to the endangered species list.  In the age of social media, is an impartial, representative juror a dying breed?

Social media and the increasingly mobile nature of electronic technology may be upsetting the delicate balance found in the U.S. jury system.  As in nature, introduction of an invasive species can threaten an ecosystem, forcing it to adapt or risk extinction.  As an alien species, social media is no exception.  Its growing presence in the legal system is reshaping modern litigation.

Social Media Threatening the Jury Process

To what extent is social media threatening the U.S. jury process? This topic has been the subject of intense scrutiny in recent months.   Last June the ABA released Proposed Model Jury Instructions to address the growing concern over jurors’ use of electronic technology to communicate about or research a case during trial.  A prefatory note recommends that the instructions be provided to jurors at the end of each day prior to jurors returning home, (in addition to the beginning and close of a case), perhaps underscoring increasing tension over what transpires once jurors walk out of the courtroom.

The legal community may have to come to grips with the fact that completely eliminating and regulating jurors’ use of social media may not be entirely possible.  The reason is simple – sharing everything via social media and electronic technology, which is increasingly mobile and sophisticated, has become a way of life for many.

Despite the more immediately apparent problem of impeding juror impartiality and potentially infringing on the right of a party to confront and respond to evidence in open court, a startling effect in the U.S. may be quietly taking place – social media may be contributing to an extinction of trial by jury.

Jury Trials are on the Decline

In June of last year a group of panelists at the American Constitution Society’s convention noted that civil jury trials, particularly in federal court, are declining. According to a report published in The BLT: The Blog of LegalTimes, statistics cited by one of the panelists, New York University School of Law Professor Arthur Miller, indicated that according to the Administrative Office of the U.S. Courts less than 2 percent of federal actions went to trial in recent years and only 1 percent involved a jury trial.

A January 2012 article published in The Florida Bar News, which compiled both national and state statistics on civil and criminal jury trials, also noted a decline in jury trials.  The article revealed that although the number of filed cases has increased, those resolved by jury trials has steadily gone down.

Both articles offer various reasons for the decline, noting increased use of alternative dispute resolution as well as time and expense in connection with preparing for trial as potential contributing factors.  Perhaps these are not so much contributing factors as they are symptoms of a larger problem.

Putting Two and Two Together

Could the declining number of jury trials be attributable, at least in part, to social media?

Two recent articles, one appearing in JD Supra Law News and another academic piece published in the University of Illinois Law Review, have questioned the practical difficulties in preventing social media in the courtroom, pointing out how a juror’s use of social media during trial can detrimentally affect the constitutional right to a jury trial.

Could a correlation exist between social media’s growing impact on selecting and retaining an impartial jury and the decline in numbers of jury trials?   It’s a question worth examining.

The risk that outside evidence or commentary will find its way from - or even to - the jury box may be just too high to justify (not to mention expensive if it leads to a mistrial).   From the perspective of a risk-averse litigation attorney, who is trained to control courtroom variables, social media is a loose cannon and a moving target. When a juror walks out of the courtroom and retires for the evening, anything can happen, prompting some attorneys to resort to hiring third party monitoring services to monitor a juror’s networking and communication during trial.

So far as selecting jurors from an impartial and representative pool - is there really such a thing in modern society as an “impartial” and “representative” juror – two concepts inherent in the U.S.  jury system?  In a world where electronic information overload and social sharing dominate every detail of life, where the whole world is only a few degrees away in connection, the idea that a jury pool can be both impartial and representative can seem contradictory and at odds.  Finding a representative juror who isn’t in some kind of danger, even inadvertently, of being influenced by outside sources is next to impossible. For example, even if jurors were to affirm, or take an oath not to engage in electronic communications or conduct outside research, what happens if he or she unwittingly receives an unsolicited text or email about the case after retiring for the evening?

Currently, no consistently effective and universally accepted way to keep social media out of the jury box exists.  Meanwhile, the impact social media hason jurors is a real concern to federal judges, according to at least one reported study. Some of the measures which have either been proposed or tried in order to curb a juror’s social media use have included confiscation of electronic devices in the courtroom, fines for violation of judicial instructions, instructional videos shown to jurors, holding jurors who violate instructions in contempt of court, encouraging jurors to report another’s violation, and allowing jurors to ask more questions as part of the court process about issues which concern them.  Nothing consistently seems to be utilized across the board or completely working.

As a result, mistrials involving social media seem to be on the rise, costing everyone involved – clients, attorneys, experts, the judicial branch, and even the jurors themselves - valuable time and money.

Do you think potential interference from social media is a factor contributing to the declining number of jury trials?

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Maggie Tamburro

Maggie Tamburro is an attorney and writer who holds a Juris Doctor from The John Marshall Law School and a Bachelor of Arts from the University of Texas. She was admitted to the Illinois Bar in 1994 and Florida Bar in 1999 and has significant experience in legal research, editing, and writing. Maggie is active her in local community, holding various publicly appointed civic board positions.

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