Earlier this year it was announced in the press that a juror had been jailed for using social media to do research on the suspect during the trial.  The lady in queston was found guilty of contempt of court and sentanced to 6 months in jail, with the judge passing down the verdict having this to say.

"Misuse of the internet by a juror is always a most serious irregularity and an effective custodial sentence is virtually inevitable."

So new researh published recently from Duke University should make interesting reading for anyone with a stake in the judicial process.  The study revealed that many jurors see it almost as a right to stay connected to the outside world during a trial.

It seems to me to be something that cannot realistically be controlled.  All participants in a trial are likely to be active users of social media.  Litigators will no doubt use social media to research jurors just as much as jurors appear to be using it to research defendants.  As the authors of the report state

“After all, the jury is a fundamentally human institution, as one of the jurors in the informal survey reminded us…,”

Obviously the practice does carry significant risks.  Jurors could share details of the case during the trial or could discover information that is far from reliable.  They could also be getting advice from their friends about the case at a time when the only people they should be conversing with are their fellow jurors.

Such behaviour has always been possible of course, but social media amplifies the possibilities, especially with the rise of mobile devices making the use of social media so easily available.

So what can be done?

The paper suggests that judges be explicit with all parties about what they may or may not do during a trial, with many using the CACM guidelines, which are included below.

[Before Trial:] . . . . Until you retire to deliberate, you may not
discuss this case with anyone, even your fellow jurors.  After you
retire to deliberate, you may begin discussing the case with your
fellow jurors, but you cannot discuss the case with anyone else until
you have returned a verdict and the case is at an end.  I hope that for
all of you this case is interesting and noteworthy.  I know that many
of you use cell phones, Blackberries, the internet and other tools of
technology.  You also must not talk to anyone about this case or use
these tools to communicate electronically with anyone about the
case.  This includes  your family and friends.  You may not
communicate with anyone about the case on your cell phone,
through e-mail, Blackberry, iPhone, text messaging, or on Twitter,
through any blog or website, through any internet chat room, or by
way of any other social networking websites, including Facebook,
My Space, Linkedin, and YouTube

[At the Close of the Case:]  During your deliberations, you must not
communicate with or provide any information to anyone by any
means about this case.  You may not use any electronic device or
media, such as a telephone, cell phone, smart phone, iPhone,
Blackberry or computer; the internet, any internet service, or any
text or instant messaging service; or any internet chat room, blog, or
website such as Facebook, My Space, Linkedin, YouTube or
Twitter, to communicate to anyone any information about this case
or to conduct any research about this case until I accept your
verdict.

When talking with jurors the research team found that these instructions were good enough to deter the vast majority of jurors from using social media during a trial, with nearly all clearly recollecting that such instructions had been delivered to them.  The research is clear in recommending that instructions such as the above should be sufficient and more draconian measures such as banning mobile devices should not be considered.

If judges want to craft such instructions the researchers suggest they should be explicit in exactly what jurors should not be allowed to do, including the precise social networks they should not use, and the instructions should also treat jurors like adults and provide them with strong reasoning why them doing so is not helpful to the case.

So, interesting stuff.  I suspect we won't hear the end of jurors accessing social media during a trial, but hopefully if judges tackle the issue head on we will see fewer instances of social media use jeopardising the judicial process.