A Note About Social Media and Juries

By John G. “Jack” Berry, Charlottesville, VA Personal Injury Attorney

Discussions about social media dominate today’s culture. Despite the inherent tendency of our legal system to move slowly in adjusting to cultural trends like this one, it, too, has been required to address issues raised by the pervasive use of social media.

The right to trial by jury is the most fundamental cornerstone of our democracy. We can trace its roots to the earliest days of our republic and across the Atlantic back to medieval England and beyond. While the infringement on the right to a fair and impartial trial before a jury of fellow citizens is often initiated by those in the halls of government and big business, interference with that right also can arise from trends in our society. Such is the case with the misuse of social media during jury trials.

Two broad categories of juror misconduct involving social media include the use of the internet to conduct research and independent factual investigation during a trial and to carry on discussions with others or publish information about the proceedings. Aaronsen and Peterson, Modernizing Jury Instructions in the Age of Social Media, Criminal Justice (magazine of the American Bar Association), Winter 2012, Vol. 27, No. 4. Recent examples include communications among some jury members hearing the corruption trial against former Baltimore Mayor Sheila Dixon. Not only were the remaining jurors left out of these “deliberations,” they occurred prior to the completion of the evidence and the court’s final instructions, thereby risking a premature and misguided verdict. See Dennis Sweeney, Social Media and Jurors, 43 Md. B. J. 44, 46 (2010).

The problem of jurors being exposed to, or participating in, the improper use of social media during trials has been the subject of a growing volume of commentary in legal journals. This increased commentary is not surprising in view of the public’s keen interest in court cases, especially those with a high profile, and given the importance of fairness in the trial process. This concept of fairness has traditionally dictated that jurors consider only admissible evidence provided in open court, subject to cross-examination, within the framework of the jury’s collective common experience and good sense. The consensus of this commentary is that the protection of a fair trial in the face of social media pressures rests with the presiding judge and his or her use of proper and thorough jury instructions delivered from the beginning of the trial, and throughout until its conclusion. If judges follow this protocol, at the end of the day the integrity of our jury system continues to rest with conscientious jurors who endeavor to follow those instructions and apply them fairly to the facts.

About The Author: Jack Berry is the managing partner and personal injury lawyer of Allen & Allen’s Charlottesville, VA office. He has practiced law as a trial attorney in Central Virginia for almost 30 years. He is dedicated to protecting the rights of his clients in all areas of personal injury law including car crashes, truck accidents, defective products, wrongful death and brain injury cases.