The Federal Judicial Center has released a study which concludes that "detected social media use by jurors is infrequent, and that most judges have taken steps to ensure jurors do not use social media in the courtroom," and implies that juror use of the Internet and social media during trial is not a growing problem.

Alison Frankel of Thompson-Reuters is skeptical about this conclusion, and I agree with her.

The FJC report was based on a survey e-mailed to all active and senior federal judges in October 2011. Of the 952 judges who received the survey, 508 responded – a response rate of 53 percent – from all 94 federal districts.

Of the 508 judges who responded, only 30 (six percent) said that they had experienced jurors using social media during trials and deliberations. Most (23 judges) had seen this during trial, rather than deliberations (12 judges), and judges reported seeing such activity more often in criminal cases (22 judges) than in civil cases (five judges). Three judges had experience with jurors using social media during both criminal and civil cases. Only two had experienced this in more than two cases of either type.

Among the sites and services that the judges observed jurors using, use of Facebook and Google were the most common, both reported by nine judges. Use of instant messaging was noticed by seven judges, while use of Twitter or an Internet chat room was detected by three each. One judge reported juror use of an Internet bulletin board, while one reported juror use of MySpace.

Seventeen of the judges also reported the substance of the jurors' activities: Five said jurors had done research on the case; four said that they had shared information about the case, such as its progress; three judges found jurors "friending" trial participants; and the same number of judges discovered jurors otherwise communicating with trial participants.

Of the 30 judges who discovered social media use by jurors, 28 indicated how they learned of the activity. Thirteen heard of it from fellow jurors, five were told by attorneys, and five said they found out via post-trial motions or interviews. Three found out from court staff, and two observed it themselves.

As the report itself points out, "the data from the survey represent judges’ reported experiences and perceptions of jurors’ use of social media to communicate about proceedings in which they are involved. The data are not actual empirical measures of such behavior." Study at 2.

And it seems dubious that the usage judges observed is all the usage there is, given how widespread Internet use is among the larger community from which jurors are drawn. While there is "no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population," Taylor v. Louisiana, 419 U.S. 522, 538 (1975), the jury pool from which trial juries are selected must "reasonably reflect[] a cross-section of the population suitable in character and intelligence for that civic duty." Brown v. Allen, 344 U.S. 443, 474 (1953).

Two recent studies comparing juror and population demographics in New York reported on by the Cornell Journal of Law & Public Policy blog – one statewide, the other focused on Monroe County, which includes Rochester – found that generally jury pools generally reflect the demographics of the larger community, although the statewide report found racial and ethnic disparity in individual counties. Academics have given a number of reasons why racially-neutral jury pool selection processes can result in unrepresentative juror pools. See, e.g., Kim Forde-Mazrui, Jural Districting: Selecting Impartial Juries Through Community Representation, 52 Vand. L. Rev. 353, 356 (1999) (discussing various impediments to adequate racial representation).

But the issue here is how the jury pool correlates with frequent users of the Internet and social media, and then whether jurors who are such users can be convinced – or compelled – to not use these services while serving jury duty.

According to the Pew Internet and American Life Project, overall 78 percent of adults use the Internet. (There are, however, some variations on usage based on age and education level.) About 77 percent of adults do so on a daily basis.

If a jury pool is representative of the adult population, it certainly includes these daily Internet users.

The fact that only two of the judges in the survey discovered the social media use on their own shows that such activity is hard to detect, both inside the courthouse and – especially – outside of it.

There are certainly numerous anecdotal instances in which jurors have been found to be using the Internet or social media during trial. The problem is that it may be impossible to really know how many jurors are doing this.

But that doesn't mean that it isn't happening.

Eric P. Robinson is the deputy director of the Donald W. Reynolds Center for Courts and Media at the University of Nevada, Reno. He previously worked at the Media Law Resource Center and the Reporters Committee for Freedom of the Press. In addition to his posts here, Eric also blogs at www.bloglawonline.com.  

(Image of courtesy of Flickr user alex.ragone under CC BY-NC-SA 2.0 license.)