The Feds Try Again, But Just Won't Say Why

The federal courts have revised the jury instructions released in 2010 to address jurors' use of the internet and social media. But while the revised versionis more specific about what activities jurors should avoid, they are still inadequate. This is because they are still in the form of a command -- "thou shalt not" -- but do not explain to jurors why they should not discuss the case or do research online.

Instead, in the revised instructions-- which are suggested, not mandatory -- judges are asked to tell jurors, "I expect you will inform me as soon as you become aware of another juror’s violation of these instructions."

According to a U.S. Judicial Conference press release, the revised instructions are based on the findings of a 2011 Federal Judicial Center study(pdf) which found that most federal judges who reported becoming aware of juror use of social media during trial found out from fellow jurors. What the press release does not mention is that of the 508 federal judges who responded to the survey, only 30 (six percent) said that they had experienced jurors using social media during trials and deliberations. This led the study's author to conclude that "detected social media use by jurors is infrequent, and that most judges have taken steps to ensure jurors do not use social media in the courtroom."

I'm skeptical of this conclusion, and the very fact that the Judicial Conference has revised the instructions would imply that the problem is growing. 

Inaddition to the changes in the instructions, the Conference is also making posters available to remind jurors of their duty to avoid the internet and social media. Such posters are already in use in some state courts.

But, as I've written before, the revised instructions still do not explain whyjurors should not use the internet to do their own investigations of the case, or use social media to communicate with others about it. 

NewYork's Civil Pattern Jury Instructions include a good example of how to explain these restrictions to jurors. After recognizing jurors' natural inclination to try to find out all they can about the case, and giving an exhaustive list of sites and services that jurors should not use, the instructions go on to explain the rationale for these restrictions.

Whilethis instruction may seem unduly restrictive, it is vital that you carefully follow these directions. The reason is simple. The law requires that you consider only the testimony and evidence you hear and see in this courtroom. Not only does our law mandate it, but the partiesdepend on you to fairly and impartially consider only the admitted evidence. To do otherwise, by allowing outside information to affect your judgment, is unfair and prejudicial to the parties and could lead to this case’s having to be retried.

Accordingly, I expect that you will seriously and faithfully abide by this instruction[.]

NY PJI-Civ. 1:11 (2011).

New York's criminal instructions include an even more detailed explanation. After a long litany of prohibited online activities, the instructions explain the rationale.

Now, ladies and gen