Legal

"The use of social media by jurors during trials and deliberations is not a common occurrence."

So says the Federal Judicial Center's newly-released report on jurors' use of social media during trial and verdict deliberations. The report was compiled after the Judicial Center surveyed 508 federal district court judges about what they've seen in their courtrooms and how they're handling the issue of jurors using social media to share information (with family, friends, their sister's junior-high boyfriend via Facebook) about the cases on which they're serving.

Only 30 of the more than 250 judges who answered the survey reported "instances of detected social media use by jurors during trials or deliberations," the report said. That seemed like underreporting to OTC, based on anecdotal evidence and our previous report on the cottage industry that's already arisen around monitoring potential jurors' social-media usage. On several occasions we've run a Twitter search for users talking about jury duty, and it never fails to provide immediate results. Today it took under two hours for several gems to pop up, including one from tweeter @RebeccaDoel, who said she was "Wishing more than ever that I could live tweet #JuryDuty." She also wrote earlier this morning that TLC's "No Scrubs" was playing on the deliberation room "boom box."

Of course, using social media is one thing, and using it inappropriately to share case information is another. Many of the infractions the report cites were, like Doel's tweets, fairly innocuous, with no postings of confidential information. But some judges reported that they had detected more troubling incidents, such as jurors "friending" case participants, an alternate juror contacting an attorney to divulge the likely outcome of deliberations, and a juror contacting a former employer of the plaintiff's to discuss the coming verdict. Clearly, illicit behavior can destroy a trial; four judges said they'd declared a mistrial in cases where jurors used social media during the trial or deliberation.

With all due respect to the judiciary, one obvious question is how much social-media usage escapes the wise notice of the bench. After all, only two judges reported personally observing jurors using "electronic devices" in the courtroom. Most of the evidence of came to judges the old-fashioned way -- they were told about it by fellow jurors, lawyers, or courthouse employees.

And lawyers, of course, have to ask themselves how far they want to go in keeping an eye on jurors. Last fall, consultants who monitor potential jurors' social-media accounts during voir dire told On the Case that they usually end the surveillance once the trial starts. Lawyers, they said, are concerned they'll see something and, under ethics rules, have to report it to the judge -- a big problem when a trial is looking good for your client.

But not all lawyers share that view. William Carmody of Susman Godfrey said that monitoring a jury's use of social media during both voir dire and trial is "the natural evolution of the process of trying to understand what jurors think about the facts of your case." If lawyers discover that jurors are talking out of school, Carmody said, they have no choice but to report the transgression. "It'd be no different ... than if a trial is going your way and you heard the same information from a different source," he said.

Judges don't seem to be spending their evening hours checking jurors' Twitter feeds or Facebook status updates, hoping instead, perhaps, that the age-old practice of jury instructions will do the trick. In January 2010, the Committee on Court Administration and Case Management distributed model instructions addressing the impropriety of using Facebook, Twitter, LinkedIn, and other social-media sites to share information about a case. (The committee suggested judges give the instruction twice, at the beginning and again before jury deliberations.) According to the new report, only 32 judges weren't aware of the model instructions. Sixty percent of the survey respondents said they've used the instructions during trials.

The more complicated truth, of course, is that convincing a juror not to talk about a trial is no different than it ever was -- now they just have bigger, more public microphones.

At least one judge has taken a novel approach to solving that problem: "Have to turn off phone before going into courtroom," said a tweet yesterday from @BennyAce -- also known as Lee Aronsohn, the co-creator and executive producer of Two and a Half Men. "Apparently it can interfere with the judge's navigation instruments."

According to his feed, Aronsohn was in fact selected to serve. His account has been quiet since last night.

(Reporting by Erin Geiger Smith)

Follow Erin on Twitter: @erin_gs