Jason Doiy, Illustration of Social Media Jurors in Ben Hancock, Should You ‘Facebook’ the Jury? Yes. No. Probably, ALM (Apr. 26, 2017, 11:09 AM), https://www.law.com/therecorder/almID/1202784626601/.
Authored by: Harriet S. Shelly
In today’s digital media society, is it ever truly possible to ensure that jury trials are fair and impartial? Pursuant to the Sixth Amendment of the United States Constitution, criminal defendants are guaranteed specific rights, including the right to have their case heard by an impartial jury.[1] Furthermore, the Seventh Amendment also provides civil litigants with essentially the same rights.[2] Beginning with the pre-trial process of voir dire, judges and lawyers seek to uphold these constitutional rights by questioning potential jurors in order to identify whether the individuals can be fair and unbiased during trial.[3] If a potential juror demonstrates any bias that might unfairly impact the trial’s outcome, the juror may be eliminated from the jury selection process.[4] Although the concept of finding an impartial jury may seem straightforward, the emerging presence of social media has presented a few bumps in the road to a fair trial.[5]
With the increasing popularity of social media sites, it is of no surprise that most Americans utilize social media on a daily basis.[6] Such individuals may use social media for different purposes, such as connecting with others, sharing information, receiving entertainment, or obtaining news.[7] Furthermore, professionals in the legal sector may even use social media as a way to promote business or gain clientele. Although the widespread use of social media has perks, it nonetheless has complicated the Sixth and Seventh Amendment rights to an impartial jury.[8] More specifically, social media has created the risk that jurors may (1) use social media to communicate, research, and/or post about the trial,[9] or (2) become biased due to outside information from social media sources.[10] In efforts to avoid these potential issues, a federal judiciary committee updated its set of model jury instructions “to deter jurors from using social media to research or communicate about cases.”[11] Regardless of whether the courts strictly follow these instructions or merely utilize them for reference, jurors should be given explicit directions regarding their social media usage throughout the entire trial (even including voir dire).
However, are social media jury instructions actually realistic? For example, during the recent defamation case between Johnny Depp and his ex-wife, Amber Heard, social media sites were buzzing with daily updates of the trial.[12] As a result, experts worried that the tremendous amount of online attention surrounding the case would unfairly sway the jury.[13] One attorney, who was not involved in the case, stated that “[j]uries are only supposed to evaluate the evidence presented in court, but the . . . content online was so significant that it’s unlikely jurors weren’t exposed to it[.]”[14] Additionally, commentators of the trial recommended that when the jury was not in the courtroom, jurors should have been placed in hotel rooms with no access to television or social media.[15] But, was this a reasonable expectation of jurors involved in an extensive six-week-long trial? In other words, how can we protect jurors from outside influences without isolating them from society for prolonged periods of time? These are questions that judges and lawyers should keep in mind when conducting jury trials.
Another recent jury trial that was surrounded by online media included the cases involving Alex Murdaugh[16] Before Murdaugh’s murder case was even heard at trial, it had already been the subject of countless podcasts, documentaries, and news articles.[17] When it came time for his financial trial, which was scheduled after the murder trial, Murdaugh’s attorneys asked the court to delay the start date because of the social media attention from the previous trial.[18] More specifically, the attorneys argued the “publicity from the murder trial will make it difficult to find a fair and impartial jury in [the county] or any other courtroom in the circuit.”[19] So, is it possible that Alex Murdaugh was given fair and impartial jury trials? One attorney stated that although it was “inevitable that the jury pool [would] be familiar with [Murdaugh],” the judge and attorneys should instead focus on jurors who were able to put their preconceived notions aside.[20]
The cases discussed above are examples of high-profile cases which are more likely to receive media attention. However, even with smaller-scale cases, judges and lawyers nationwide should begin to think about how social media may impact all jury trials. As mentioned earlier, given this prevalent issue, trial courts may consider enhancing the voir dire process or giving special jury instructions.[21] Additionally, a change of venue may be another effective way to ensure a fair jury trial.[22] For example, if there is heavy social media coverage in the area of the original venue, the judge may remove the trial to a venue in an area that is not as familiar with the facts of the case.[23]
All in all, judges and lawyers must stay informed on the growth of social media and how it may impact their cases. The widespread use of social media is not expected to slow down with the continuing technological advances being made each day. Thus, in order to preserve the Sixth and Seventh Amendment rights guaranteed by the Constitution, it is vital that judges and lawyers continue to put forth their best efforts to prevent social media from obstructing fair and impartial jury trials.
[1] U.S. Const. amend. VI; see Sixth Amendment – Right to Trial by Impartial Jury, Annenberg Classroom, https://www.annenbergclassroom.org/resource/right-trial-impartial-jury/ (last visited Feb. 21, 2024) (defining an impartial jury as “independent people from the surrounding community who are willing to decide the case based only on the evidence”).
[2] U.S. Const. amend VII.
[3] Impartial & Representative Juries, Strengthening the Sixth, https://www.strengthenthesixth.org/focus/Impartial-Representative-Jury (last visited Feb. 23, 2024); see Voir dire, Black’s Law Dictionary (11th ed. 2019) (defining “voir dire”as “[a] preliminary examination of a prospective juror by a judge or lawyer to decide whether the prospect is qualified and suitable to serve on a jury”).
[4] Id. (“If either party identifies potential biases, that juror may be eliminated ‘for cause’ meaning the challenging party can articulate a legitimate basis for eliminating that juror.”).
[5] See generally social media, Merriam-Webster, https://www.merriam-webster.com/dictionary/social%20media (last visited Feb. 21, 2024) (defining social media as “forms of electronic communication . . . through which users create online communities to share information, ideas, personal messages, or other content”).
[6] See Simon Kemp, Digital 2023: The United States of America, DataReportal (Feb. 9, 2023), https://datareportal.com/reports/digital-2023-united-states-of-america.
[7] See Social Media Fact Sheet, Pew Research Center (Jan. 31, 2024), https://www.pewresearch.org/internet/fact-sheet/social-media/.
[8] See Nicole L. Waters & Paula Hannaford-Agor, Jury Impartiality in the Modern Era, in Encyc. of Criminology and criminal justice 2735, 2735 (2014).
[9] See Dara Kam, Juror’s Social-Media Posts Roil Gillum Case, Tallahassee Reports (May 3, 2023) https://tallahasseereports.com/2023/05/03/jurors-social-media-posts-roil-gillum-case/; Dareh Gregorian, Oh, What a Twit!, New York Post (May 29, 2009, 5:52 AM), https://nypost.com/2009/05/29/oh-what-a-twit/.
[10] See Thaddeus Hoffmeister, Do Unbiased Jurors Exist to Serve at Trump’s 2020 Election Trials in the Age of Social Media?, PBS (Sept. 9, 2023, 3:04 AM), https://www.pbs.org/newshour/politics/do-unbiased-jurors-exist-to-serve-at-trumps-2020-election-trials-in-the-age-of-social-media.
[11] New Jury Instructions Strengthen Social Media Cautions, United States Courts (Oct. 1, 2020), https://www.uscourts.gov/news/2020/10/01/new-jury-instructions-strengthen-social-media-cautions (updating the previous 2012 version of the model jury instructions).
[12] See Anya Zoledziowski, Did Social Media Sway the Johnny Depp Jury?, VICE (June 3, 2022, 12:43 PM), https://www.vice.com/en/article/qjkd4q/johnny-depp-heard-trial-jury-social-media (describing the use of social media in the case as a “social media circus”).
[13] Id.
[14] Id.
[15] Id.
[16] See Thad Moore, The Alex Murdaugh Trial’s First Challenge: Finding 12 Jurors with Open Minds, The Post and Courier (Jan. 22, 2023), https://www.postandcourier.com/murdaugh-updates/the-alex-murdaugh-trial-s-first-challenge-finding-12-jurors-with-open-minds/article_36ed2c58-98de-11ed-99e0-b3abb9b2773f.html.
[17] Id.
[18] Steven Ardary & Anna Harris, Murdaugh Attorneys Argue Impartial Jury Won’t Be Found for Financial Trial, Live 5 News (Nov. 13, 2023, 11:10 AM), https://www.live5news.com/2023/11/13/murdaugh-attorneys-argue-impartial-jury-wont-be-found-financial-trial/.
[19] Id.
[20] Moore, supra note 16.
[21] See Is a Fair Trial Possible in the Age of Mass Media?, Teach Democracy, https://teachdemocracy.org/bill-of-rights-in-action/bria-11-1-a-is-a-fair-trial-possible-in-the-age-of-mass-media (last visited Feb. 24, 2023).
[22] Id.
[23] Id.
American Journal of Trial Advocacy 