Tocqueville’s LIKELY Take on the “Tweeting Juror” Problem
juror misconduct.104 According to Reuters Legal, in 75 percent of cases arising since 1999 where judges declined to declare mistrials stemming from jurors’ online activities, judges still found that jurors had engaged in some form of misconduct.105
Harm to the Integrity of the Judicial System The secret nature of jury deliberations in the American system serves several purposes. First, such secrecy “encourage[s] full and free discussion in the jury room.”106 If jurors knew their deliberations would be shared publicly, their willingness to speak openly with each other might be chilled.107 Second, confidentiality prevents outsiders from exerting undue influence over jurors and “pressuring [them] into changing their opinions.”108 Third, “[b]y hiding the jury’s reasons for its verdict and the methods by which it arrived at its decision … the system promotes the public acceptability of its fact finding.”109 For all these reasons, the Federal Rules of Evidence make jury verdicts virtually immune from challenges once rendered.110 Specifically, Rule 606(b) prescribes in part that “[d]uring an inquiry into the validity of a verdict … a juror may not testify about any statement made or incident that occurred during the jury’s deliberations … or any juror’s mental processes concerning the verdict.”111 Consequently, when jurors blog, tweet or post status updates about their deliberations, they utterly destroy the secretive nature of the process. As one commentator noted, in the modern era, “the jury deliberation room is merely closed symbolically to the outside world,” because “[i]n reality, every juror with a handheld Internet device is open to the influence of the world.”112 These online activities inject “‘a wider audience into what [would] have been a private exchange’” among jurors.113 In turn, the judicial system loses all of the benefits that would otherwise flow from a secretive deliberation process. Jurors might be reluctant to freely speak their minds, given the possibility that a fellow juror will post their remarks online. Jurors might be subjected to undue influence from outsiders as communicated via social networking sites. The public might lose faith in the jury’s fact-finding results, especially if jurors’ online communications bring to light “petty rivalries, potential misapprehension of evidence, and irrelevant matter the jurors actually considered.”114 In sum, “dispatches from the ‘black box’ of the jury room subvert the gravity of the process,” thereby undermining the integrity of the judicial system as a whole.115
104. See Goldstein, supra note 48, at 594. 105. See Grow, supra note 39. 106. Morrison, supra note 14, at 1599. 107. See id. (quoting Justice Cardozo, who wrote “[f]reedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world”). 108. Goldstein, supra note 48, at 589. 109. Morrison, supra note 14, at 1599. 110. See id. 111. F ed. R. E vid. 606(b). 112. Sharpe, supra note 49 (emphasis in original). 113. Lee, supra note 4, at 194 (alteration in original) (quoting Steven Johnson, How Twitter Will Change the Way We Live, Time (June 5, 2009), http://www.time.com/time/magazine/article/0,9171,1902818,00.html). 114. Morrison, supra note 14, at 1603. 115. Id. at 1602.
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