New jury instruction targets use of social media

In 2008, a juror in England polled her Facebook "friends" to decide how to vote on a case involving child abduction and sexual abuse. She was dismissed from the jury. A year later, jurors in Pennsylvania were found to be updating their Facebook pages throughout the course of a trial. The defendant was convicted and was reportedly working on an appeal that would focus on the jury's behavior. Last summer, a juror in New York sent a "friends" request to a witness while the jury was deliberating. The witness ignored the request and reported the juror to the court.

These stories and others continue to make headlines, and are recounted in an article entitled "Online and Wired for Justice: Why Jurors Turn to the Internet" (The Jury Expert, November 2009).

To help judges address electronic communication during trials, the Wisconsin Criminal Jury Instructions Committee recently developed a jury instruction that was disseminated to judges at the Judicial Conference and is also available on CCAP (the Consolidated Court Automation Programs).

Wisconsin appears to be among the first to release a jury instruction. "We might be moderately ahead of the curve on this," said UW Law School Prof. David Schultz, who serves as reporter for the Criminal Jury Instructions Committee. Schultz said that the State of Michigan also has addressed the social media issue, but from a different angle. The Michigan Supreme Court adopted a new rule that requires judges to admonish jurors about use of social media during trials.

The instruction does not, of course, help judges who are dealing with journalists and citizen bloggers in court. Live blogging during trials has raised concerns in Wisconsin and elsewhere. In mid January, a Florida judge ordered a Jacksonville newspaper reporter to stop blogging during a high-profile murder trial because the judge found the typing to be distracting the jury. The newspaper, which had an audience of 1,300 following the blog, vowed to appeal.

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