Keeping Up with the Tweeters: The Challenge for Jury Instructions
By Teresa Wineland
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rkansas Model Jury Instruction – Civil 101 has undergone major revisions in the last decade as courts and counsel struggle to ensure that litigants receive a fair trial in the face of the information superhighway. Jurors have long been instructed not to talk about a case among themselves or with others during a trial. They have been told not to read or listen to reports about it in the media. They have been told not to do any research or investigation on their own. Since at least 2005, they have been specifically admonished not to do any research on the internet. Information from such extraneous sources is suspect, as it is not subject to the tried and tested rules of evidence and the rigors of cross-examination. In 2010, AMI 101 was amended to advise jurors that they must turn their cell phone, pagers and other communication devices off while in the courtroom. They were told they could not use these devices for any purpose when in the jury room during deliberations, and could only use them during recesses. In keeping with the exponential rate at which the use of electronic devices is permeating society, AMI 101 has continued to evolve with each subsequent edition of the AMI Civil. The 2011 version told jurors they must turn their devices off while in the courtroom and during deliberations. They could not use any electronic device to find out anything about the case or to communicate their own thoughts or with anyone else about the case. The instruction specifically prohibited tweeting, texting, blogging, emailing, and posting information on a website, social network or chat room. AMI 101, and its closing instruction counterpart AMI 3502, were extensively rewritten in the 2012 edition of the AMI Civil. While carrying over the 2011 provisions, the instructions are now even more specific, listing some of the electronic devices in popular use, including iPhones, smartphones, Blackberrys, PDAs, and iPads. Other terms are mentioned that identify sources of information available electronically, including Facebook, MySpace, Twitter, Google, Wikipedia, Google Earth, Podcasts, streaming video and audio, and RSS feeds. These lists will have to be reviewed regularly to stay current in the fast-changing world of technology and the internet. The goal is to get the message across to jurors that they must leave their normal technology-dependent lifestyle behind at the court-
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house steps, and rely on the lawyers, the judge and the witnesses in a case to tell them what they need to know. Those of us who live by our laptops and smartphones know how hard it is to ignore our electronic lifelines for even a short time, and jurors are no different. The current AMI 101 attempts to ease and facilitate the deprivation of electronic research and communication by explaining to jurors why it is important for them to make this sacrifice for the duration of a trial. If jurors are being asked to give up their addiction to the use of these devices, they need to know why, both to increase the level of compliance and to make the demands of jury service more acceptable. Is it working? While it may be too early to tell, Arkansas is seeing its share of trials tainted by juror misconduct in violation of prohibitions contained in the AMI. In Dimas-Martinez v. State,1 tweeting by a juror during the trial was one of the grounds for the reversal and remand of a capital murder verdict. At the close of the evidence on the sentencing phase of the trial, the juror tweeted “Choices to be made. Hearts to be broken. We each define the great line.” The trial court questioned the juror about the tweeted message, and confirmed that the juror had not made up his mind about how he was going to decide the case, nor had he discussed the particulars of the case with anyone. Despite this questioning by the court, the juror continued to tweet during the trial, even tweeting “It’s done” when the jury had reached its verdict but before it was announced. The Supreme Court, after noting that one of the persons following the juror’s tweets was a reporter, said: Because of the very nature of Twitter as an online social media site, Juror 2’s tweets about the trial were very much public discussions. Even if such discussions were onesided, it is in no way appropriate for a juror to state musings, thoughts, or other information about a case in such a public fashion.2 The Court was also concerned about the fact that the media had advance notice that the jury had completed its sentencing deliberations before an official announcement was made to the court.3 Importantly, it was not contended that the twitter messages