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Trial-by-Jury in the Age of Social Media

Trial-by-jury is a cornerstone of the American justice system. But social media and Internet-enabled devices are creating new challenges for tradition-bound courts: juror Tweets and Facebook postings have already upended high-profile trials across the country. We speak with two judges about how technology is forcing courts to rethink the way they counsel jurors and conduct proceedings.

"Digital Natives" On Juries, The "Facebook Five," and Ensuring Fair Trials Today

In 2009, the public corruption trial of then-Baltimore Mayor Sheila Dixon was nearly derailed by Facebook. After the verdict of that case had been rendered, a journalist with the Maryland Daily Record discovered that five members of the jury "friended" each other over the social network and had communicated outside the courtroom during deliberations. On the basis of those reports, Mayor Dixon’s lawyers filed for a new trial, accusing the jurors of misconduct.

The parties in the Dixon case reached a plea deal and the jurors, the so-called "Facebook Five," never faced charges for their actions in the digital world. But retired Judge Dennis Sweeney, who presided over the trial, says it’s an example of colliding worldviews, between the tradition-bound rules of the court system and "digital native" jurors. In a recent law review article, Sweeney explores the challenge of ensuring fair trials and unbiased jurors in the digital age, when jurors have been known to go home and research cases online, tweet from the courtroom, and engage in conversation about cases with friends (and, in the example of the Dixon case, fellow jurors) on social media sites. Sweeney says the "Facebook Five" represent a new kind of juror - the "digital native" who was born and raised in the Internet age and has never known a life that didn't involve research and communication via the Web.

Sweeney says that trial cases with juries made up of digital natives are plagued by a fundamental discord between the jurors and the traditional trial system itself. "For a digital native, one used to the world of the Internet and social media, the methods and form of acquiring information in a trial may seem stifling, inefficient, and unduly restrictive," he wrote. "For persons who are used to darting among many different devices, websites, blogs, social media sites on a continual basis...sitting in a jury box hour after hour, waiting for the slow presentation of each item of testimony or document, with interruptions for objections and bench conferences, will likely be an excruciating ordeal that is almost intolerable; especially if they cannot use their own electronic devices."

What are the alternatives? Sweeney considers a complete ban on electronic devices in the courtroom, or the sequestration of juries, but dismisses both as unrealistic and as placing undue stress on jurors. Instead, he opts for a new set of voir dire questions to circulate to prospective jurors to determine whether they'd be able to follow the necessary restrictions on social media and Internet use during the trial. He argues that better judge and lawyer awareness about what kinds of questions jurors would find confusing could help them clarify those questions in court before jurors are tempted to research them on their own at home. Giving final instructions to jurors right before deliberations reiterating the rules on Web communications are another of Sweeney's suggestions.

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