Jury Instructions for the Modern Age - Updated
Jury Instructions for the Modern Age:
A 50-State Survey of Jury Instructions on Internet and Social Media
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Juror use of the Internet and social media during trial has been a growing concern of the bench and bar for the past several years. A recent study by Reuters of reported cases on Westlaw found 90 verdicts called into question since 1999 because of jurors’ online activities. More than half the cases are from the last two years. In 28 of the cases, 21 of them since January 2009, new trials were granted or verdicts were overturned.2
Juror use of this media may take several forms: jurors conducting independent research on the case on the Internet; sending e-mails, text messages, Tweets or other communication conveying developments in a trial or deliberations; or using the camera feature of mobile technology to record courtroom proceedings.
In response to this growing concern — and a growing number of mistrials in some cases due to improper juror use of technology — several states have adopted or proposed rules or statutes that would explicitly limit such activity by jurors.
Courts have also responded to this trend with including partial or complete bans of cellphones and similar electronic devices from courtrooms and even entire courthouses.
Many jurisdictions have also altered their jury instructions to tell jurors about the limitations on use of these devices during voir dire, trial and deliberations. And while many of these efforts have been comprehensive within their respective jurisdictions, the overall American landscape is speckled with inconsistency and outright silence on the vexing question of how best to handle the growing problems of smart devices and social media as they impact the administration of U.S. justice.
This article lists and categorizes the formal and informal efforts that federal and state courts have taken to manage the social media-jury instruction problem, primarily through the additions thier court rules and to official and unofficial (but widely accepted) jury instructions. Such updated instructions are labeled as “modern.” in this article.
But several jurisdictions have not updated their jury instructions, which are labeled as “archaic.” “A” jurisdictions have no official or unofficial jury instructions.
This article also cites cases in which courts have confronted use of the Internet or social media by jurors, and dealt with the consequences. Besides illuminating the rules, these cases provide examples of the issues that have arisen in this developing area of the law.
A Brief History of Jury Instructions
In English common law, juries were generally given free rein to decide cases as they saw fit, without instruction from the judge.3 This carried over to the American colonies, sincebecause jurors were considered to “need no Explanation [since their] good sense & understanding will Direct ye as to them.”4 If the jury was given instructions, they were advisory only, and could be ignored.5
But once the U.S. Supreme Court clearly delineated the different roles of judges and juries — with the former deciding on the applicable law, and the latter determining the facts6 — it became necessary for the court to instruct jurors about the law that they were to apply in a particular case.7
Thus, towards the end of the 19th Century, it became more common for attorneys and judges to craft instructions for juries in each trial.8 Judges began compiling their own sets of instructions from prior cases that had been upheld by appellate courts.9
The legal profession soon came to realize that instructing the jury could involve a lot of work and duplication of effort. With every trial, judges and attorneys would spend time drafting the instructions. Another problem was that instructions were often inconsistent from judge to judge. And judges were often reversed for instructional error.10
This sentiment led to the creation of the first formal set of pattern jury instructions, compiled in the 1940s by the judges of the California Superior Court in Los Angeles. These instructions became widely used in that county, then came into use statewide, albeit without official endorsement.11 The Illinois Supreme Court took notice of these developments, and in 1955 created a committee to formulate its own set of pattern jury instructions.12 The resulting Illinois Pattern Jury Instructions had official status, and the court in fact mandated their use.13 Other states then followed,14 in a movement that was hailed as “one of the great strides in the modernization and preservation of our judicial system.”15
But there were problems with the instructions, which were primarily crafted by attorneys and judges, and were often not intelligible to lay jurors.16 The result was another movement to redraft jury instructions in “plain English,” so that they would be comprehensible to non-lawyers.17
This article reviews available “model, “pattern,” “recommended,” “standard,” and “uniform” civil and criminal jury instructions, including both official and non-official compilations. There is no signifigance to the label (model, pattern, etc.) given to the instructions.18
Although a state may have one or more sets of standardized jury instructions for use in civil and criminal trials, these instructions are often merely suggestions, which may be modified on a case-by-case basis.19
Jury Instructions and Social Media
Courts have held that “it is essential” that the court admonish the jury about their duties and responsibilities, including the duty to remove themselves from outside information about a case, and that this admonition be given at the start of trial and throughout the proceeding; particularly before recesses, especially overnight ones.20 But failure to instruct a jury not to discuss the case outside the courtroom is not plain error requiring reversal, where there is no evidence that the jury was subject to outside influence.21
As courts have become increasingly aware—and wary—of jurors using social media and other Internet tools to communicate to or from the courthouse or do research into cases during trial or deliberations, several jurisdictions have adopted or proposed model jury instructions which explicitly tell jurors notto access information about cases on the Internet, or discuss the case on the Internet or social media.22
These instructions, based in large part on previous instructions that admonished jurors not to speak to others about a case, and to avoid newspaper, television, and radio coverage, attempt to cover a wide variety of juror use of the Internet. This may take several forms, including jurors conducting independent research on the case on the Internet; sending e-mails, text messages, tweets or other communication conveying developments in a trial or deliberations; or using the camera or audio features of mobile technology to record courtroom proceedings.
Some courts have also dealt with cases in which jurors have used the Internet or social media during trial, and have had to determine the impact and remedy for such use.
Overview of Current Instructions
This article reviews available civil and criminal jury instructions23 – including official and non-official compilations, as well as statutes or court rules imposing instructions – for the federal24 and state courts, and the local courts in the District of Columbia.25
Among the federal courts, six circuits have not compiled civil jury instructions26 and three have not compiled criminal instructions,27 although the U.S. Judicial Conference has formulated an instruction for civil and criminal cases in all federal courts. All states have compiled civil instructions, and all but three have compiled criminal instructions.28
Of the jurisdictions with instructions, two federal circuits and 21 states have “archaic” civil instructions, meaning that they either do not have any language regarding juror access to the media and discussions about cases, have only general language on the issue, or have language that only mentions traditional media (newspapers, radio, and television). In criminal instructions, five federal circuits have such archaic instructions, as do 13 states.
Five federal circuits have “modern” civil instructions that either mention the Internet generally, mention both the Internet and social media, or mention specific web and social media sites and services. Seventeen states also have such modern civil instructions.
On the criminal side, four federal circuits have modern instructions, while three have archaic ones. Among the states, 12 have archaic instructions, while 34 have updated their criminal instructions to account for the modern media landscape.
Among the federal circuits, only one – the Eighth – has civil instructions that include a rationale for the restrictions on juror behavior. The Eleventh Circuit includes such a rationale in its criminal instructions.
Among the states, ten include the rationale in their civil instructions, while seven include it in their criminal instructions.
|
| Civil a | Criminal a | ||
| Federal | State | Federal | State | |
| No Instructions | 6 b | 0 | 3 b | 4 |
| Archaic Instructions | 2 | 20 | 5 | 12 |
| No Language | 0 | 0 | 0 | 2 |
| General Language | 1 | 18 | 2 | 6 |
| Newspaper / Radio / TV | 1 | 2 | 3 | 4 |
| Modern Instructions | 5 b | 31 | 4 b | 35 |
| Internet | 2 | 5 | 1 | 7 |
| Internet / Social Media | 2 | 9 | 3 | 13 |
| Specific Sites | 0 b | 17 | 0 b | 15 |
| Includes Rationale | 1 b | 10 | 1 b | 7 |
a. Except for the U.S. Judicial Conference instruction, general provisions applicable to both civil and criminal cases are included in both categories.
b. This includes individual circuits’ instructions, but excludes the admonition formulated by the U.S. Judicial Conference for all federal civil and criminal trials. That admonition would fall into the “Specific Sites” and “Includes Rationale” categories.
The Need for Modern Jury Instructions
The remainder of this article lays out these instructions by circuit and state, examining how they deal with jurors discussing or researching cases, especially through the use of the Internet and social media. Each section also includes descriptions of cases in which such behavior by jurors has been a factor.
It is clear that jurisdictions without jury instructions specifically addressing use of the Internet and social media by jurors must address this issue directly.
But several of the cases involving juror use of social media have occured in jurisdictions with modern jury instructions which admonish jurors to not discuss or research the case online, showing that such instructions alone are not sufficient. The court should give this instruction at the very start of jury service, and repeat it often throughout voir dire, trial and deliberations.
These instructions cannot be a mere admonishment. They should also explain the reasons behind the restrictions, and should also remind jurors of the consequences of impropet behavior–not only to themselves, but to the court system.
Federal
General Instructions
In late January 2010 the U.S. Judicial Conference, which sets policies for all federal courts except the Supreme Court, sent all federal district judges suggested jury instructions on “juror use of electronic communication technologies” during trial.29 The suggested instructions are apparently intended for use in both civil and criminal cases.30
The suggested instructions prior to trial provide:
You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in the case, and the individuals or corporations involved in the case. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Please do not try to find out information from any source outside the confines of this courtroom.
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.31
As the jury prepares to deliberate, the suggested instruction is:
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.32
Criminal Instructions
The Federal Judicial Center33 has its own set of pattern criminal jury instructions. Because these instructions were last updated in 1988, they do not reference social media or the Internet.34 But they do speak of avoiding “news reports of the trial,” and admonish jurors not to “discuss the case with anyone.”35
In the absence of updated instructions from the court, a leading treatise on federal courts practice has stepped into the void with updated instructions that mention the Internet and social media.36
Do not read any news accounts about this case in any newspaper or on the internet or watch any such news accounts on television or listen to any such news accounts on the radio. You must not consider anything you may have read or heard about the case outside of this courtroom whether before or during the trial or during your deliberations. Do not attempt any independent research or investigation about this matter. Your decision in this case must be based solely and exclusively upon the evidence received during this trial, my final instructions, and not upon anything else.37
During this recess and all other recesses, you must not discuss this case with anyone. This includes your family, other jurors, and anyone involved in the trial. If anyone attempts in any way to talk to you about this trial during a recess, it is your obligation to tell me immediately.
Do not watch or listen to any news reports concerning this trial on television or on radio and do not read any news accounts of this trial in a newspaper or on the internet.
Do not speak at all with any of the parties, the witnesses, or the attorneys.
You are required to keep an open mind until you have heard all of the evidence in this case, the closing arguments of counsel, and the final instructions of law provided by the Court.38
* * *
I am advised that reports about this trial are appearing in the newspapers [and] [or] on radio] [and] [or] on television] [and] [or] on the internet]. The person who wrote or is reporting the story may not have listened to all of the testimony as you have, may be getting information from people who you may not see here in court under oath and subject to cross-examination, may emphasize an unimportant point, or may simply be wrong.
Please do not read anything or listen to anything or watch anything with regard to this trial. The case must be decided by you solely and exclusively on the evidence which is received here in court.39
Circuit Courts
In addition to pattern instructions for federal courts as a whole, most of the individual circuit courts have created sample—but non-binding40—jury instructions for federal trial courts in their geographic areas.
First Circuit
–Civil: No Instructions; Criminal: Archaic
Civil Instructions
The First Circuit has not promulgated model instructions for general civil trials.41
Criminal Instructions
The latest criminal pattern jury instructions promulgated by the First Circuit were published in 1998, and do not address the Internet or other forms of new media.
To insure fairness, you as jurors must obey the following rules:
* * *
Fourth, during the trial do not talk with or speak to any of the parties, lawyers or witnesses involved in this case—you should not even pass the time of day with any of them. It is important not only that you do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the lawsuit sees you talking to a person from the other side—even if it is simply to pass the time of day—an unwarranted and unnecessary suspicion about your fairness might be aroused. If any lawyer, party or witness does not speak to you when you pass in the hall, ride the elevator or the like, it is because they are not supposed to talk or visit with you;
Fifth, do not read any news stories or articles about the case or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it;
Sixth, do not do any research, such as consulting dictionaries or other reference materials, and do not make any investigation about the case on your own; …42
Cases
In a 2009 decision, the First Circuit reversed a drug distribution conspiracy conviction because a juror had conducted online research because she disagreed with the other jurors’ definitions of the term “attempt to possess with the intent to distribute narcotics.”43
In another 2009 case, a juror in a wrongful death case sent Facebook “friend” requests to two of the plaintiffs, and sent an email to their attorney in which the juror said that the juror found out about the plaintiffs’ “partying ways” through the site. District Judge D. Brock Hornby denied a motion for a new trial, after determining that the juror visited the site after deliberations, and that the information did not play a role in the verdict.44
Second Circuit
–Civil: No Instructions; Criminal: No Instructions
The Second Circuit has not adopted model civil or criminal jury instructions.
Cases
During the 2001 New York trial of suspects in the 1998 terrorist bombings of American embassies in Africa, a juror allegedly researched the concept of “aiding and abetting” on the Internet: a question that the jury had asked the court during deliberations.45 After their conviction, the defendants sought a new trial on this and other grounds,46 but the motion was denied.47
More recently, ExxonMobil sought a new trial in a federal case in which a jury ordered the company to pay $104 million to New York City for contaminating groundwater, once the court discovered that at least five jurors, one of whom was removed before deliberations, had done independent research online. The judge denied the motion, but observed that such situations were a growing problem.48
Search engines have indeed created significant new dangers for the judicial system. It is all too easy for a juror to find out more than he or she should by typing a few carefully chosen words into a search engine.49
Third Circuit
–Civil: Modern; Criminal: Modern
Civil Instructions
The Third Circuit has updated its Model Civil Jury Instructions to add language about the Internet, but not as comprehensively as it has updated the criminal instructions. For example, the preliminary instruction on juror conduct reads,
… Second, do not read or listen to anything related to this case that is not admitted into evidence. By that I mean, if there is a newspaper article or radio or television report relating to this case, do not read the article or watch or listen to the report. In addition, do not try to do any independent research or investigation on your own on matters relating to the case or this type of case. Do not do any research on the internet, for example. You are to decide the case upon the evidence presented at trial.50
The Circuit also updated its admonition against accessing information about the trial, with the revised admonition requesting that jurors “… not read, watch or listen to any news reports of the trial, or conduct any research or investigation, including on the Internet.”51 A note to this instruction recommends that it “may be modified to be given at the beginning of the trial, as well as before a recess.”52
Criminal Instructions
The Third Circuit also updated its Model Criminal Jury Instructions in November 2009, effective in January 2010, to add language about the Internet to the admonition against accessing information about the trial.
(7) Do not use a computer, cellular phone, or other electronic devices while in the courtroom or during deliberations. These devices may be used during breaks or recesses for personal uses, but may not be used to obtain or disclose information about this case.
(8) Do not do any research or make any investigation on your own about any matters relating to this case or this type of case. This means, for example, that you must not visit the scene, conduct experiments, consult reference works or dictionaries, or search the internet for additional information, or use a computer, cellular phone, or other electronic devices, or any other method, to obtain information about this case, this type of case, the parties in this case, or anyone else involved in this case. You must decide this case based only on the evidence presented in the courtroom and my instructions about the law. It would be improper for you to try to supplement that information on your own.53
Cases
A Pennsylvania state senator on trial for federal corruption charges sought to remove a juror who had posted updates on the trial on Facebook, Twitter, and his blog during deliberations.54 After an in camera hearing during which the juror was questioned about his general media and social media use during the trial, the court refused to remove the juror, finding that the juror “is one conscientious guy trying very much to comply with all the rules and regulations that I’ve established, more so [than] I would ever imagine that a juror would do. And I think that, you know, I’ve heard him and I don’t have any trouble with keeping him on the jury.”55
The defense objected, but was overruled. After the senator was convicted, he moved for a new trial on this and other grounds. The court denied the motion, finding that the defendant had not shown any outside influence on the juror that could have affected the verdict.56
Shortly after the judge denied the new trial motion, Philadelphia magazine reported that the jurors heard about the questions regarding the Internet postings.57 This led the defense to renew its motion for a new trial, which was similarly denied.58 The defendant has appealed this ruling.59
Fourth Circuit
–Civil: No Instructions; Criminal: No Instructions
The Fourth Circuit has not adopted model civil or criminal jury instructions.
Fifth Circuit
–Civil: Archaic; Criminal: Archaic
Civil Instructions
The Fifth Circuit’s Pattern Civil Jury Instructions, last updated in 2006, refer to avoiding “news reports of the trial,”60 and do not mention the Internet or social media.61
Criminal Instructions
The Fifth Circuit’s pattern criminal instructions last updated in 2001, similarly do not mention the Internet or social media.
Now that the trial has begun, you must not read about it in the newspapers or watch or listen to television or radio reports of what is happening here. The reason for these rules, as I am certain you will understand, is that your decision in this case must be made solely on the evidence presented at the trial.62
Sixth Circuit
–Civil: No Instructions; Criminal: Archaic
Civil Instructions
The Committee on Pattern Jury Instructions of the District Judges Association of the Sixth Circuit has not drafted pattern civil jury instructions.
Criminal Instructions
The Sixth Circuit’s Pattern Criminal Jury Instructions do not include any admonishment to the jury to avoid news coverage of the case. Instruction 8.02 reminds jurors that they must make their decision based only on the evidence presented in court, and admonishes them to “not conduct any experiments inside or outside the jury room; … not bring any books, like a dictionary, or anything else
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