BOSTON — A recent decision from the 1st U.S. Circuit Court of Appeals suggests that lawyers and judges need to take jurors’ use of social media a whole lot more seriously.
The defendant in U.S. v. Zimny was convicted of multiple counts of wire and bank fraud tied to his use of an educational consulting company to bilk Chinese and South Korean parents out of hundreds of thousands of dollars that they hoped would help their children gain admission to elite U.S. boarding schools and colleges.
After the trial concluded, the defense team became aware that an individual claiming to be a juror had posted on a blog titled “Shots in the Dark,” taking a very negative view of the defendant and his actions. The juror’s comments suggested that the jury had engaged in premature deliberations.
The trial court judge questioned the juror and accepted her assurances that she hadn’t discovered the blog until after the trial was over and that her post had reflected her personal observations only, not any improper deliberations.
But subsequently a second post appeared on the blog, claiming to be from another former juror and asserting that the first juror had talked about the blog incessantly before she was dismissed from the jury due to illness.
When the trial judge declined to question all the remaining jurors, the defendant appealed.
The 1st Circuit concluded that the defense had put forth a “colorable claim of juror misconduct” and ordered the judge to conduct an investigation into that claim. Subsequently, it ordered that the defendant be released from custody pending resolution of the investigation.
Given our 24-hour news cycle and the explosion of information available on the internet, it seems inevitable that there will be many more cases like this one, with jurors allegedly accessing extraneous information during trial.
To address the problem, the courts need to develop rules that fit the current technology. That may require ratcheting up the tone of jury instructions and warning jurors that even after trial their internet use may be subject to investigation (as happened in this case).
It may mean that prospective jurors are explicitly pressed on whether they can refrain from looking at social media about the case, or that jurors are not only asked to refrain from perusing extraneous material themselves but also to report any misconduct they observe among their fellow panelists.
It could even mean that prosecutors are charged with monitoring related blogs during trial and bringing irregularities to the judge’s attention, or that jurors are asked to certify in writing that they have heeded the judge’s warnings and refrained from conducting internet research or reading about the case on social media.
All of these options are worth exploring. But it’s clear that the current jury instructions and daily reminders, which may have been sufficient to prevent jurors from watching the nightly news or picking up the daily paper, are woefully inadequate at a time when most of us get a constant stream of news and information via Facebook feeds and other forms of social media.