around the bar
February 6, 2013

Midyear Meeting Preview: Social Media Advancements Prompt Resolution to Modify ABA Jury Standards

ABA House of Delegates

Monday, Feb. 11, 9 a.m.-5 p.m.

Resolutions will be
updated in real time here.

In Florida, a prospective juror nearly faced jail time when he Googled the defendant during a capital murder trial. In Vermont, the Supreme Court overturned a sexual assault conviction when it discovered a juror used the Internet to research the defendant’s heritage. In Arkansas, the courts granted a new trial to a death row inmate because a juror had tweeted during his trial.

Although courts across the country explicitly ban jurors from communicating about cases, the use of social media has created new challenges for jury management. As a result, the _’s Commission on the American Jury Project seeks to update the “Principles for Juries and Jury Trials” with Resolution 106 at the ABA Midyear Meeting in Dallas. The principles have served as a national guide for judges and lawyers on best practices for managing juries.

“The use of the Internet and social media is a fact of life,” said James F. Holderman, chief judge of the Northern District of Illinois and chair of the Commission on the American Jury Project. “To require jurors in 2013 to refrain from doing something that is an integral part of their life, such as to refrain from the use of the Internet to gather information and to refrain from the use of social media, is asking them to do something very difficult. We judges and lawyers need to understand that.”

The original standards were established by the commission in 2005, a year after the founding of Facebook, and much has changed since then.

Resolution 106 proposes to broaden the definition of social media to include any type of technology or medium such as blogs, tweets, texts or emails. It also recommends that jurors be allowed to submit questions to curtail the urge to research answers to questions they may have about the case.

“We are offering the amendment to Principle 6 to further emphasize to jurors what their obligations are,” Holderman said. “By employing the proposed procedures, allowing jurors to submit written questions about the case to the judge and allowing the jurors to discuss the case when they are all present in the jury room before deliberations, the court at least provides a substitute for the jury’s desire to look up a question on the Internet or to tell their friends through social media what they are doing.”

Holderman has implemented this proposed change in his own courtroom.

“I have employed these two procedures in every civil jury trial I have had since 2005, and the procedures, coupled with a strong instruction to the jurors to avoid outside research, have been very successful. I have never had a problem,” Holderman added.

The resolution also seeks to include an amendment to Principle 10, which states that courts should use open and fair procedures to select jurors.

“Making sure the jurors fully understand both the evidence and the court’s instructions is key to a fair and just judicial process,” said Patricia Refo, partner at Snell & Wilmer.  “Anything we can do to improve juror comprehension makes the trial process better.”

Experts say one way to improve the selection process is to protect jurors’ privacy. This  can be accomplished by requiring that answers provided in the written questionnaire that is not used in the case be destroyed.

“Prospective jurors, when asked to provide answers to detailed questions contained on a written questionnaire that requires the disclosure of very personal family information, are more likely answer truthfully and completely if they know that the questionnaires will not be made public after the trial is completed,” said Dennis J. Drasco, attorney at Lum, Drasco & Positan. “They are more likely to invest themselves in the process if they know there is a concern by the court for their privacy.”

The resolution requests that accommodations for non-English speaking jurors include providing a court-approved translator whenever possible.

“In some jurisdictions, such as Arizona and New Mexico, which have large populations who speak a language other than English as their first language, courts have made the effort to provide accommodations to jurors who primarily are non-English speaking,” Holderman said. “This amendment recommends that all courts make such reasonable accommodations when possible to ensure that the jury pool represents a fair cross-section of the community.”

As courts struggle to maintain funding across the country, the commission is aware of the challenges associated with providing these additional services.

“We understand there are cost considerations and only expect courts to be reasonable in their accommodations as they are requested to be with other jurors, including blind or deaf jurors,” Holderman said. “Reasonableness is the key.”

The commission has also included an amendment in the resolution to aid in the preservation of civil jury trials.