Jurors and Social Media: Is a Fair Trial Still Possible?

Abstract

Slowly but surely the Sixth Amendment's guarantee of a fair trial is being eroded as social media invades the jury room. Essential evidentiary rules control what jurors can learn about a case and what they can say about it during a trial. In just a decade, the rapid growth of easy online communication has threatened to dissolve the careful walls we have built around the jury. The key question is whether courts can now persuade jurors to resist the siren call of online communication when they serve as jurors. We cannot ignore this problem. Having jurors refrain from using the Internet and social media while they serve as jurors is likely to grow harder in the years ahead and will require taking what I call a "process view" of a juror's education.

A process view of a juror's education recognizes that every stage at which the court interacts with jurors creates an opportunity to educate them. From start to finish -- from jury summons to jury verdict -- there are opportunities for the court to educate jurors about the need to avoid online communication about the trial. A comprehensive education should transform "uninformed jurors" into informed jurors. Admittedly, it will not reach "recalcitrant jurors." For recalcitrant jurors, who have no intention of following the prohibition, the best hope is for judges and lawyers to find new ways to identify and remove them during voir dire. This article explores what it means to take a process view of a juror's education in order to protect a defendant's Sixth Amendment right to a fair trial.

Keywords: Sixth Amendment, fair trial, jurors, jury, juror education, social media, courts

JEL Classification: K10, K14, K40, K41