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New federal model jury instructions: Don’t blog this trial!

Legal News Reporter

Published: September 18, 2012

A proposed new set of jury instruction for federal courts has been issued by a federal Judicial Conference Committee that relates with the fact that jurors bring their phones with them to court.

The proposed model instruction, which follows numerous state courts’ attempts to deal with this issue, would add about two pages to a standard jury instruction, one each at both the start of the trial and at the close of the case.

The model instruction follows in the footsteps of many state courts, which have been giving these sorts of jury instructions for a long time.

A 2012 report by the Conference of Court Public Information Officers (CCPIO) published findings of their third annual study designed to “empirically measure the perceptions of judges and court officials toward new media and the ways that courts are responding to the new pervasive reality of Facebook, Twitter, YouTube and the hyper-connected culture they have brought.” The survey was conducted in partnership with the National Center for State Courts and the E.W. Scripps School of Journalism at Ohio University.

The survey attempted to measure the effect of social media of all types on court proceedings, on the ethics and conduct of judges and court personnel, and on court efforts to promote public understanding of and confidence in the judiciary.

The study had four overall conclusions: there are now more judges using social media (although an informal survey of Akron-area judges did not find this to be the case); fewer judges view their use of social media as potentially problematic in relation to judicial ethics; social media is necessary for public outreach; and fewer judges feel that using social media would present ethical concerns for their offices.

The study also showed that those judges are more and more cognizant of the fact that jurors and potential jurors use portable electronic devices to access and distribute information, whether or not through social media sites. This was shown by the fact that 60 percent of those judges who responded to the survey have standard jury instructions that, in some part, refer to the use of cell phones while serving on a jury.

This number is up 4.5 percent from the 2011 survey.

Ohio has had model jury instructions integrate admonitions against the use of cell/smart phones and/or social media by jurors since 2010.

The federal model instructions stem from a survey of federal trial judges by the Federal Judicial Center at the request of the Conference Committee on Court Administration and Case Management (CACM).

In that survey, the vast majority of the responding federal judges stated that they had jury instructions or other safeguards in place to discourage the use of cell phones for data transmission (use of social media) while seated during a trial, but they also said that they would welcome stricter guidelines or rules.

The survey also brought the response that it was generally a fellow juror who told the court about a juror using a cell phone.

The federal model instructions were promulgated in response to this. They are in two parts—one for before the trial begins, and one for post-trial jury instructions.

Before the trial begins, the instructions begin with the admonishment to the jurors to not collect independent information about the case, including looking at the Internet, blogs, websites, or any other electronic medium.

The instructions then go on to prohibit the use of cell phones, the internet, and “Blackberries” in communicating with the outside world about the case. (There is an ongoing discussion among people who care about these things about the proper pluralization of “BlackBerry.” The RIM website states that the use of the word “BlackBerries” or “BlackBerrys” is an improper use of a trademarked name. Nowhere on that site is the word “Blackberry” used in the plural. More than one of the devices is always referred to as “BlackBerry Smart Phones” or “BlackBerry Wireless Devices” or like designation. But the second “B” is always capitalized. Not that it matters. By this time next year, RIM will likely be out of business, but, whatever).

The post-trial instruction section includes admonitions to stay out of chat rooms and off websites, and has a generally comprehensive list of unsocial social media behavior to avoid, along with the “anything else that looks like electronic media” prohibition.

All of this is done, say the instructions, because, “in our judicial system, it is important that you are not influenced by anything or anyone outside of this courtroom.”