Tocqueville’s LIKELY Take on the “Tweeting Juror” Problem
There are, however, several potential downsides to targeted instructions. First, very specific instructions might actually inspire certain jurors to engage in online behaviors that they would not otherwise have contemplated.145 Some discredit this notion, citing the fact that “[l]ong before judicial admonitions were expanded to include [reference to the Internet], there were regular media reports about jurors going online.”146 Nevertheless, when courts expressly prohibit jurors from engaging in certain behaviors, the socalled “reactance effect” might drive some jurors to do just the opposite.147 Second, the list of specific prohibited technologies might become obsolete or under-inclusive with time, thereby requiring courts or legislatures Furthermore, this method urges to constantly update the instructions.148 jurors to contemplate in advance Of course, one easy way to overcome this whether they will be able to tolerate problem is to leave “fill-in-the-blank” spaces where judges can insert new technologies the “degree of social isolation and into their instructions, as reflected in the Illielectronic silence” required of them nois pattern instructions presented above.149 Third, some studies suggest that jurors often during jury service. misunderstand judges’ instructions.150 Social media can exacerbate misunderstandings in this context by blurring the line between online life and “real” life. For example, in one case, a juror became friends with the criminal defendant on MySpace one week before trial, but failed to share this information with the judge because, as she explained, “[She] just didn’t feel like [she] really knew him. [She] didn’t know him personally. [She] never, never talked to him.”151 Finally, some jurors may understand the instructions but simply ignore them, or capitalize on loopholes in the very specific list of prohibited technologies.152 As one (seemingly) snide juror explained in a blog post written during jury selection, the judge instructed jurors not to tweet about the case, but “‘made no mention’” of blogging.153 From Tocqueville’s perspective, judges can employ targeted jury instructions to educate jurors on the important role they play in the trial and judicial system broadly.154 Moreover, judges can use these instructions as a means for educating jurors about the principal values of our justice system, the role of certain constitutional guarantees, the rules of evidence and so on. In turn, jurors not only receive “practical instruction in the law,” but they also learn about their own legal rights in the process.155 Furthermore, judges can use jury instructions to teach jurors equity in practice. For instance, judges could explain to jurors that if they were parties to litigation or criminal defendants, they would surely expect 145. See Fallon, supra note 8, at 962. 146. Susan MacPherson & Beth Bonora, The Wired Juror, Unplugged, Trial , Nov. 2010, at 43. 147. See Fallon, supra note 8, at 962. 148. See id. 149. I ll . Patter n Jury I nstructions – C ivil 1.01 (2011). 150. See Morrison, supra note 14, at 1609. 151. State v. Dellinger, 696 S.E.2d 38, 41 (W. Va. 2010). 152. Leslie Ellis, Friend or Foe? Social Media, the Jury and You, The Jury E xpert (Am. Soc’y of Trial Consultants), Sept. 2011, at 4, available at http://www.thejuryexpert.com/2011/09/friend-or-foe-socialmedia-the-jury-and-you/. 153. Grow, supra note 39. 154. See Lee, supra note 4, at 208 (“Jurors who recognize that their service is significant will be more likely to put in the time and effort necessary to reach a correct verdict.”). 155. See Tocqueville , supra note 2, at 316.
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