Commentary on the Effects of Social Media on Litigation
Although there are several positive effects of social media on social justice and on the legal system as a whole, social media does serve up some challenges to the judicial system. For instance, the jury system is now under threat due to the ability to communicate instantaneously court proceedings or verdicts to a large number of people.
The rapid growth of online networking and social media has made it difficult to select an unbiased jury that has not yet been exposed to particulars of a case or individuals in a trial. This is especially the case for highly publicized cases such as the trial of George Zimmerman. The particulars of this case had already become universal even before the selection of the jury because of social media.
Another argument against social media in litigation matters is the fact that fairness of trial proceedings needs to be upheld throughout the case. Jurors are not supposed to discuss the details of the case with anyone except their fellow jurors. This is supposed to minimize outside influence on the determination of the case. It is inevitable that some of the jurors will discuss some aspects of the case with their family members at the dinner table. However, the widespread use of social media tools has led to a significant increase in the risk of prejudicial communication amongst the jurors, members of the press, and members of the public. The social media phenomenon has led to a situation whereby it is easier to persuade and influence the jurors’ decisions on a case from the outside (Dysart & Kimbrough, 2013).
As one court came to recognize, exposure to prejudicial communication is extensively higher if a juror comments on a blog or posts on Facebook or Twitter because literally anyone in the universe can see the comment and respond to it. Increased juror misconduct is highly correlated to the use of social media. There are instances when the jurors used social media to contact the judges, members of counsel, defendants, relatives of the defendants, and witnesses. The jurors then use the social media platforms to divulge confidential information about the case.
Perhaps the most prolific case of juror misconduct involving social media is when a judge from the Supreme Court of Arkansas had to overturn a murder conviction in the Dimas-Martinez state. The overturning of the conviction was due to the fact that one juror had posted and continued to post tweets about the case even after being reprimanded by the judge.
There are various ways that litigators can counter the detrimental effects of social media usage by the jurors. These strategies should be employed before, during and after jury selection and the trial. These strategies can be very effective in eradicating any form of juror misconduct or unfairness emanating from a juror’s social media use.
1. Jury Selection
In this day and age, it is imperative that the litigators conduct a full-scale background check on the potential jurors before allowing them to become jurors. This full-scale background check should also involve screening their social media profiles to determine those who might have undisclosed biasness towards the material objects in the case such as an undisclosed biasness towards the defendant’s or victim’s race. For instance, during the selection of members of the jury for the George Zimmerman case, the litigators used questionnaires to determine if the potential jurors had posted information on Facebook or received information on the site regarding the death of Trayvon Martin in February 2012 (Dysart & Kimbrough, 2013).
The litigators can also screen the jurors by examining what social media websites they frequent, the frequency with which they log into these sites as well as the frequency with which they post information on their favorite websites. The litigators can also question the potential jurors Facebook friends or Twitter ‘followers’ about the online conduct of the potential jurors.
2. Jury Instructions
The litigators can also create certain juror instructions that can help to counter or reduce some of the negative effects of social media use. The instructions are meant to act as deterrence for the jurors from using social media to communicate about the case or research on the case that they are currently serving on. The instructions are based on the premise that all jurors must arrive at a decision regarding the case based only on the material facts of the case, and the evidence presented before the court. This measure inhibits the influence that outside forces might have on the final verdict. The instructions also serve to prohibit the communication of any facets of the case using social media platforms.
3. Other Safeguards
Litigators can also request the confiscation of electronic devices in the courtroom if the situation warrants it. This measure would be very beneficial in high profile cases that attract a lot of public attention and scrutiny. Other measures include fining the jurors who violate instructions pertaining to social media as well as filing motions against specific jurors who do not adhere to the instructions provided. The litigators can also develop a system whereby any juror misconduct is quickly reported in order to protect the sanctity and independence of the deliberation process as well as independent thinking.
The rapid growth of social media has become a potential headache for the criminal justice system. Certain measures should be employed in order to ensure that juror misconduct through social media is eradicated.
Dysart, K., & Kimborough, C. (2013, Aug 22). #Justice? Social Media’s impact on the U.S. Jury system. Retrieved on 18/11/2015 from http://apps.americanbar.org/litigation/committees/trialevidence/articles/summer2013-0813-justice-social-media-impact-us-jury-system.html