Tocqueville’s LIKELY Take on the “Tweeting Juror” Problem
C onclusion
T
he most effective means for controlling social media use by jurors likely encompasses a combination of the solutions discussed above.233 Most jurors will simply obey the judge’s admonishment against online communications.234 For a small minority of jurors, however, perhaps no solution will be entirely effective. In other words, “if jurors really want to cheat, they are going to cheat, no matter what safeguards are in place.”235 The solutions that fit best within Tocqueville’s vision of the jury as a “free school” and “political institution,” while also being practical for courts to implement, are tailored jury instructions, juror self-policing rules and voir dire questioning. Each of these methods enables judges to educate jurors about their important role in the trial and about the core values of our judicial system. At the same time, these solutions teach jurors that judges implicitly trust them to fulfill their weighty civic responsibilities — an empowering lesson that might in turn promote jurors’ respect for the judicial system as a whole. Finally, these solutions engage jurors in a microcosmic form of self-government by motivating them to “check” their peers’ (and their own) abuses of the judge’s admonishment against social media use. In contrast, the solutions that most undermine Tocqueville’s idealized vision of the jury system are confiscation, “virtual sequestration,” and the various punitive measures discussed above. These solutions tend to demoralize and frustrate jurors, making them feel as though the judicial system distrusts them to act responsibly and views them as “helpless, weak-minded, irrational, vindictive, and easily swayed children.”236 Jurors serving under these conditions might be reluctant to learn anything from their experience. Even worse, many citizens facing confiscation of their cell phone or the risk of extreme punitive measures might simply ignore their jury summons in the first place, thereby negating entirely the opportunity to learn any civic lessons from jury service. While Tocqueville almost surely did not foresee the rise of social networking and its impact on jury trials, his teachings nevertheless point the way toward the most effective solutions.
233. See McGee, supra note 7, at 324 (“Though each of the aforementioned proposals may be independently adequate to at least curtail contemporary occurrences of jury misconduct, the most effective resolution will be to employ a combination of them.”). 234. St. Eve & Zuckerman, supra note 142, at 24. 235. See McGee, supra note 7, at 323. 236. Morrison, supra note 14, at 1623–24 (quoting Albert W. Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, 56 U. Chi. L. R ev. 153, 232 (1989)).
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