Social Media Craze: How the Internet Is Changing Efforts to Preserve the Judicial Process with Prospective Jurors at Trial

BY Liz Babbitt &
Merrie Jo Pitera, Ph.D.

We are in the last few minutes of a two-day jury selection when the lead defense counsel overhears one of the prospective jurors discussing with another juror the Google search she completed last night on our client, and how she was “surprised” by the number of links that came up.  Unfortunately, the judge had never admonished the jurors to refrain from conducting any Internet searches during the jury selection process .  Plaintiffs’ counsel was not enamored with the final panel and saw this as an opportunity for a mistrial. 

Long story short, the judge interviewed at the bench each juror who had contact with the Google-search er .  To the luck of the defense, each person claimed not to recall what was said and each also had been previously struck via peremptory or cause.  Consequently, the judge decided to keep the panel in place.  The Google-searcher remained on the panel and was our foreperson, as the defense agreed she was a strong defense juror based on her voir dire responses.  In the end, we received a defense verdict , but this was a happy ending to a scary situation. 

Social Media’s Growth
We have entered a new era – the onslaught of the social media craze has serious implications for how we deal with jurors in the legal system.  The statistics are overwhelming.  The wealth of information available online, and the speed at which that information is accessible, is greater than ever before – and it is still growing. 

Did you know that there are 31 billion searches on Google every month; yet only four years ago this number was 2.7 million?  Did you know there are more than 106 million accounts on Twitter and the number of Twitter users increases by 300,000 every day?  Did you know the U.S. makes up 33% of the Twitter traffic, where 45% of users are 18-34, 24% are ages 35-49 and 14% are over the age of 50?¹  Did you know there are over 111 million users on Facebook in the U.S. alone?  More than 100 million active users access their Facebook accounts via their mobile phones.  The statistics go on and on , and expand to MySpace, LinkedIn and other social media sites.

What does this tell us?  The Internet and social media sites are now commonplace – in many cases it is a preferred avenue to access news, information, research, etc. 

The Internet is at our fingertips, literally, and it is now part of our everyday lives.  A byproduct of this instant access is that there are no rules, social or otherwise, that govern when to use it , what content is available and where that information came from, etc.  So what does this all mean for those of us involved in the judicial process?  What are some challenges we are facing and potential solutions for them?

Keeping It Out of the Courtroom
We have anecdotally heard about ways social media sites have interfered with the judicial process (e.g., a juror tweeting during deliberations about avoiding buying any stock in the defendant’s company given their verdict).  Here are some documented cases to bring home the significance of how this phenomenon is adversely affecting the legal field. 

• In Russo et al. v. Takata, a juror received a supplemental juror questionnaire (SJQ) in the mail prior to jury selection and while filling it out decided to conduct Internet research about Takata (a seatbelt manufacturer).  Yet this juror did not respond to repeated voir dire questions from counsel about ever hearing about Takata or knowing something that may sway favor for one party in the case.  Later, during deliberations, he commented to other jurors that Takata, based on his Internet search, had not been involved in any other cases of this nature; therefore, this must have been a “one-off” case.  However, the facts from experts presented during trial revealed numerous other cases about defective seatbelts.  Plaintiff was successful in overturning the verdict.
  
  
• In a recent case in Missouri where we assisted in jury selection, a juror was silent when asked about his corporate attitudes; however, after conducting a social media/Google search related to this juror, we learned this juror misrepresented himself, as he held strong anti-corporate/socialist attitudes and failed to disclose those attitudes during voir dire.  We were successful in getting that juror dismissed by the court.
  
  
• People v. Siegelman raised questions of potential juror misconduct, in the context of a motion for new trial, in a high-publicity criminal case where the defendants claimed that, during the presentation of evidence and deliberations, some members of the jury had been sending each other e-mails. The motion for appeal was denied because the finality of the jury’s verdict could only be challenged by evidence of “extraneous prejudicial information” or “outside influence.”

With jurors having information at their fingertips 24/7, what steps can we take to minimize and hopefully eliminate jurors’ reliance on the Internet and social media sites?  We next focus on solutions for both jury research projects and actual trial settings.