The First Circuit recently vacated the death sentences of Dzhokhar Tsarnaev, the 19-year-old who was convicted of the 2013 Boston Marathon bombings, due in part to juror activity on social media during jury selection. Online comments to and from a juror included:
"If you're really on jury duty, this guys got no shot in hell"
"Shud be crazy [Dzhokhar] was legit like ten feet infront of me today with his 5 or 6 team of lawyers ... can't say much else about it tho ... that's against the rules."
"Play the part so u get on the jury then send him to jail where he will be taken care of."
Of course, this juror also told the court during jury selection that his FB friends were not commenting on the trial.
It is difficult to regulate the use of social media. For some people, tweeting is like breathing--they may not always be conscious they are doing it. [Political comment deleted]. In a jury trial, this is a real concern. As Tsarnaev recognized, "jurors who do not take their oaths seriously threaten the very integrity of the judicial process." Social media can be used to research the allegations, to perpetuate inaccurate news reports [second political comment deleted], to reveal juror biases . . . the list goes on.
Proposed model instructions were recently drafted by the Judicial Conference. These are much more comprehensive and modern (no references to Blackberries or MySpace) than the 2012 version. The venire is warned, in detail, against communication or research on social media. It also recognizes the compulsion to do so, and that some people will not be able to resist: "If you feel that you cannot do this, then you cannot let yourself become a member of the jury in this case. Is there anyone who will not be able to comply with this restriction?"
The instructions go so far as to warn about potential on-line manipulation:
Finally, a word about an even newer challenge for trials such as this one–persons, entities, and even foreign governments may seek to manipulate your opinions, or your impartiality during deliberations, using the communications I’ve already discussed or using fake social media accounts. . . . .These communications may be intended to persuade you or your community on an issue, and could influence you in your service as a juror in this case. (emphasis added)
[Third political comment deleted]. The instructions cover jury selection, instructions at the beginning and end of each day, and the close of the case. Jurors are also instructed to inform the court "at the earliest opportunity" if they learn of another juror learning or sharing information outside the courtroom.