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Tocqueville’s LIKELY Take on the “Tweeting Juror” Problem By Caroline A. Teichner I ntroduction
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hen Alexis de Tocqueville wrote in the early 19th century about the virtuous American jury system, he surely did not foresee the rise of a phenomenon that would wreak havoc in jury trials some 200 years later: social networking.1 Tocqueville’s idealized vision depicted the American jury both as a political institution that allowed citizens to participate in self-government, and as a “free school,” where jurors learned about the law and equity in practice from the best and brightest legal minds.2 Today, however, some jurors fail to check their social networking habits at the courtroom door, thereby jeopardizing not only Tocqueville’s vision, but also the core values of the jury system. Ubiquitous reports in the media describe jurors tweeting, posting to Facebook and blogging during trial proceedings — practices that “upend[] deliberations and infuriat[e] judges” when discovered.3 Even worse, these practices threaten the integrity of trials and violate “the traditional notion of our adversary system: To keep jurors insulated from outside information.”4 Indeed, this problem is so “pervasive that commentators have coined new phrases to describe it,” such as “the ‘Twitter Effect,’ and ‘Internet-Tainted Jurors.’”5 While this phenomenon might be shocking, it is certainly not surprising. In an era where psychologists recognize the clinical phobia of being without one’s cellphone (“nomophobia”),6 and where rehabilitation centers exist to treat people for technological 1. See John Schwartz, As Jurors Turn to Web, Mistrials Are Popping Up, N.Y. Times , Mar. 17, 2009, at A1 (“The use of BlackBerrys and iPhones by jurors gathering and sending out information about cases is wreaking havoc around the country.”). 2. A lexis de Tocqueville , D emocr acy in A merica 311–18 (Arthur Goldhammer trans., 2004). 3. Schwartz, supra note 1. 4. See Laura Whitney Lee, Comment, Silencing the “Twittering Juror”: The Need to Modernize Pattern Cautionary Jury Instructions to Reflect the Realities of the Electronic Age, 60 D e Paul L. R ev. 181, 183–84 (2010). 5. Thaddeus Hoffmeister, Jurors in the Digital Age 4 (Aug. 30, 2010) (unpublished manuscript), available at http://works.bepress.com/thaddeus_hoffmeister/7. 6. See Vicky Kung, Rise of ‘nomophobia’: More people fear loss of mobile conduct, Cnn.com (Mar. 6, 2012), http://articles.cnn.com/2012-03-06/tech/tech_mobile_nomophobia-mobile-addiction_1_mobile-
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