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Guidelines Issued On Jurors And Social Media For New York Courts

Stacked3This week's Daily Record column is entitled "Guidelines Issued On Jurors And Social Media For New York Courts."  My past Daily Record articles can be accessed here.

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Guidelines Issued On Jurors And Social Media For New York Courts

Last year the Social Media Committee of the New York State Bar Association’s Commercial and Federal Litigation Section issued Guidelines that addressed the ethics of lawyers using social media. You may recall that I wasn’t sold on the necessity of such a lengthy report addressing what I believe is a relatively simple concept: online conduct is simply an extension of offline conduct. For that reason, the guidelines were unnecessary since offline analogies can usually be found for online conduct.

In comparison, just last month the Committee released a new report which offers guidelines for courts on the issue of jurors and social media. This report provides much-needed analysis of issues that are affecting the judicial process on a daily basis. Jurors are often impermissibly using social media in ways that have long-lasting, costly effects on our justice system and judges are struggling to keep up with the changes wrought by jurors’ ability to use online platforms to obtain information about cases and share their experiences with the world.

Enter the Social Media Jury Instructions Report.This well researched report offers recommendations for judges to help address jurors’ use of social media and adeptly balances jurors’ use of social media with the interests of the judiciary and litigants.

At the outset, the Committee began by acknowledging the profound impact of social media on our culture: “Social media has revolutionized how we communicate. It routinely serves as both a
means of communication and a source of information for jurors and counsel. Its use must be
anticipated and its impact addressed during jury selection, at trial, prior to and during jury
deliberations, and after trial.”

According to the Committee, at the start of each case, it’s important to ensure that jurors understand that many of their online communications are public and an be viewed by anyone with Internet access: “(C)ourts should consider an instruction that jurors be ‘advised that what you may view as a private social media communication made by you or someone you know may or may not be private and can be viewed or followed by the public, including the lawyers in this case.’”

Next, the Committee explained that judges should provide clear and illustrative instructions to jurors regarding the types of online activities and communications that are permissible: “To adequately communicate the scope of what a prospective juror may or may not do and
what is expected of them, it is necessary to instruct jurors using examples from the technology
jurors are likely to use. For example, it may be difficult for some jurors to understand that a
general instruction not to use the Internet or social media is also a specific instruction not to use
common services and websites such as Google, Bing, Twitter, Facebook, YouTube, Snapchat,
Wikipedia, Google Maps or MapQuest to perform ‘research’ on a case…(J)ury instructions need to include detailed and specific explanations of the reasons certain activities are prohibited, examples of violations drawn from existing case law, and the range of the activity prohibited.”

The Committee also provided detailed guidelines for judges, with the end goal of reducing the potential impact of improper social media communications on jury trials. It summarized recommendations as follows: “(C)ourts…should: (1) consult with counsel prior to jury selection concerning the potential review and/or monitoring of “public” juror social media communications during jury selection, trial and/or deliberations; (2) consider the Section’s revised model New York’s Pattern Jury Instructions; and (3) consider displaying in the jury deliberation room a social media usage poster warning of the consequences of improper social media communications.”

All in all these guidelines are very useful for both litigators and judges and offer great insight into the impact of social media on litigation, including ways to avoid, or at least mitigate, the costly effects of the improper use of social media and online tools by jurors. It’s a very thorough, valuable report and is well worth a read.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.