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Jury Instructions for the Modern Age:

A 50-State Survey of Jury Instructions on Internet and Social Media Eric P. Robinson1 Juror use of the Internet and social media during trial has been a growing concern of the bench and bar for the past several years. A recent study by Reuters of reported cases on Westlaw found 90 verdicts called into question since 1999 because of jurors’ online activities. More than half the cases are from the last two years. In 28 of the cases, 21 of them since January 2009, new trials were granted or verdicts were overturned.2 Juror use of this media may take several forms: jurors conducting independent research on the case on the Internet; sending e-mails, text messages, Tweets or other communication conveying developments in a trial or deliberations; or using the camera feature of mobile technology to record courtroom proceedings. In response to this growing concern — and a growing number of mistrials in some cases due to improper juror use of technology — several states have adopted or proposed rules or statutes that would explicitly limit such activity by jurors. Courts have also responded to this trend with including partial or complete bans of cellphones and similar electronic devices from courtrooms and even entire courthouses. Many jurisdictions have also altered their jury instructions to tell jurors about the limitations on use of these devices during voir dire, trial and deliberations. And while many of these efforts have been comprehensive within their respective jurisdictions, the overall American landscape is speckled with inconsistency and outright silence on the vexing question of how best to handle the growing problems of smart devices and social media as they 1. Special thanks to Journal Board of Editors member Nancy Rapoport, a professor at the University of Nevada, Las Vegas William S. Boyd School of Law; Jeanne F. Price (Director), Jennifer Gross, and Chad Schatzle of the Wiener-Rogers Law Library at the Boyd School of Law; Blake F. Quackenbush, a student at the Boyd law school; Adeen Postar, Deputy Director of the Pence Law Library at the American University Washington College of Law; Karen Salaz, District Administrator of Colorado’s 19th Judicial District; Leigh Anne Hiatt, Public Information Officer with the Office of Public Information of Administrative Office of the Courts in Kentucky; and Dean P. Land, Legal Publications Attorney, Oregon State Bar, for their assistance with the research for this article. Thanks also to University of Neavada Associate Professor Swart Cheifet for his comments. 2. Brian Grow, As jurors go online, U.S. trials go off track, Reuters Legal, Dec. 8, 2010, http://www. reuters.com/article/2010/12/08/internet-jurors-idUSN0816547120101208. Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age impact the administration of U.S. justice. This article lists and categorizes the formal and informal efforts that federal and state courts have taken to manage the social media-jury instruction problem, primarily through the additions thier court rules and to official and unofficial (but widely accepted) jury instructions. Such updated instructions are labeled as “modern.” in this article. But several jurisdictions have not updated their jury instructions, which are labeled as “archaic.” “A” jurisdictions have no official or unofficial jury instructions. This article also cites cases in which courts have confronted use of the Internet or social media by jurors, and dealt with the consequences. Besides illuminating the rules, these cases provide examples of the issues that have arisen in this developing area of the law.

A Brief History of Jury Instructions

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n English common law, juries were generally given free rein to decide cases as they saw fit, without instruction from the judge.3 This carried over to the American colonies, sincebecause jurors were considered to “need no Explanation [since their] good sense & understanding will Direct ye as to them.”4 If the jury was given instructions, they were advisory only, and could be ignored.5 But once the U.S. Supreme Court clearly delineated the different roles of judges and juries — with the former deciding on the applicable law, and the latter determining the facts6 — it became necessary for the court to instruct jurors about the law that they were to apply in a particular case.7 Thus, towards the end of the 19th Century, it became more common for attorneys and judges to craft instructions for juries in each trial.8 Judges began compiling their own sets of instructions from prior cases that had been upheld by appellate courts.9 The legal profession soon came to realize that instructing the jury could involve a lot of work and duplication of effort. With every trial, judges and attorneys would spend time drafting the instructions. Another problem was that instructions were often inconsistent from judge to judge. And judges were often reversed for instructional error.10

This sentiment led to the creation of the first formal set of pattern jury instructions, compiled in the 1940s by the judges of the California Superior Court in Los Angeles. These instructions became widely used in that county, then came into use statewide, albeit with-

3. Peter Tiersma, The Rocky Road to Legal Reform: Improving the Language of Jury Instructions, 66 Brook. L. Rev. 1081, 1082 (2001). 4. Harvey S. Perlman, Pattern Jury Instructions: The Application of Social Science Research, 65 Neb. L. Rev. 520, 524-25 (1986), citing W. Nelson, Americanization of the Common Law 26 (1975) (quoting Grand Jury Charge, 1 Cushing Papers (1759) (collection of Mass. Hist. Soc’y, Boston)). 5. “[Colonial] juries were crucially instructed that they had the right to decide questions of law as well as of fact. . . . Juries could disobey . . . instructions, construe the law independently, or even set aside the law entirely to render verdicts according to conscience.” Jeffrey Abramson, We, the Jury: The Jury System and the Ideal of Democracy 9 (1994), quoted in Judith L. Ritter, Your Lips Are Moving . . . But The Words Aren’t Clear: Dissecting The Presumption That Jurors Understand Instructions, 69 Mo. L. Rev. 163, 189 n.154 (2004). 6. See Sparf v. United States, 156 U.S. 51, 102-03 (1895). 7. Ritter, supra note 5, at 189. 8. Tiersma at 1083; see also Alan D. Woodlief, Jr., An Introduction to the North Carolina Pattern Jury Instructions, 10(2) N.C. Bar J. 8, 9 (Summer 2005). 9. Id. 10. Id.

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Jury Instructions for the Modern Age out official endorsement.11 The Illinois Supreme Court took notice of these developments, and in 1955 created a committee to formulate its own set of pattern jury instructions.12 The resulting Illinois Pattern Jury Instructions had official status, and the court in fact mandated their use.13 Other states then followed,14 in a movement that was hailed as “one of the great strides in the modernization and preservation of our judicial system.”15 But there were problems with the instructions, which were primarily crafted by attorneys and judges, and were often not intelligible to lay jurors.16 The result was another movement to redraft jury instructions in “plain English,” so that they would be comprehensible to non-lawyers.17 This article reviews available “model, “pattern,” “recommended,” “standard,” and “uniform” civil and criminal jury instructions, including both official and non-official compilations. There is no signifigance to the label (model, pattern, etc.) given to the instructions.18 Although a state may have one or more sets of standardized jury instructions for use in civil and criminal trials, these instructions are often merely suggestions, which may be modified on a case-by-case basis.19

Jury Instructions and Social Media

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ourts have held that “it is essential” that the court admonish the jury about their duties and responsibilities, including the duty to remove themselves from outside information about a case, and that this admonition be given at the start of trial and throughout the proceeding; particularly before recesses, especially overnight ones.20 But failure to instruct a jury not to discuss the case outside the courtroom is not plain error requiring reversal, where there is no evidence that the jury was subject to outside influence.21

11. James A. Dooley, Illinois Pattern Instructions: An Appraisal by a Plaintiff ’s Attorney, 1963 U. of Ill. Law Forum 586, 589 (1963). 12. Don Musser, Instructing the Jury – Pattern Jury Instructions, 6 Am. Jur. Trials 923 (2003). 13. Id. See Ill. Sup. Ct. R. 25-1(a) (1963).The rule is now Ill. Sup. Ct. R. 239(a) (2011). 14. Philip H. Corboy, Pattern Jury Instructions-Their Function and Effectiveness, 32 Insurance Council J. 57, 65 (1965). 15. Harry I. Hannah, Jury Instructions: An Appraisal by a Trial Judge, 1963 U. of Ill. Law Forum 627, 643 (1963). 16. J. Alexander Tanford, The Law and Psychology of Jury Instructions, 69 Neb. L. Rev. 71, 79-83 (1990); Ritter, supra note 5, at 190. 17. Tanford at 91-93. 18. See, e.g., Robert C. Power, Reasonable and Other Doubts: The Problem of Jury Instructions, 67 Tenn. L. Rev. 45, 55 n.49 (1999). 19. “[T]he pattern instructions are not sacrosanct, a fact that has been borne out by the appellate rejection of pattern instructions, as well as appellate recognition of the fact that a legally ‘correct’ instruction can change its stripes when applied to a given case. Although not greeted with open arms in many courtrooms, opportunity awaits the attorney who specially crafts instructions for his case or who proposes modifications in existing instructions to tailor them and remove misleading or offending materials.” Pike & Fischer, BNA Criminal Practice Manual, §. 131.101. (2) (2009). See also People v. Mata, 133 Cal. App.2d 18, 21, 283 P2d 372 (Cal. 1955) (“Standard jury instructions “are no more sacrosanct than any others. Unless a particular instruction fits the evidentiary situation and presents a fair and impartial picture of the issues, it should not be given.”) 20. United States v. Williams, 635 F.2d 744, 745-46 (8th Cir. 1990). 21. United States v. Nelson, 102 F.3d 1344, 1348 (4th Cir. 1996), cert. denied, 520 U.S. 1203 (1997); accord Baldwin v. Blackburn, 653 F.2d 942, 948 (5th Cir.1981); United States v. Arciniega, 574 F.2d 931, 93233 (7th Cir.), cert. denied, 437 U.S. 908 (1978); United States v. Hart, 729 F.2d 662, 667-68 (10th Cir. 1984). Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age As courts have become increasingly aware—and wary—of jurors using social media and other Internet tools to communicate to or from the courthouse or do research into cases during trial or deliberations, several jurisdictions have adopted or proposed model jury instructions which explicitly tell jurors not to access information about cases on the Internet, or discuss the case on the Internet or social media.22 These instructions, based in large part on previous instructions that admonished jurors not to speak to others about a case, and to avoid newspaper, television, and radio coverage, attempt to cover a wide variety of juror use of the Internet. This may take several forms, including jurors conducting independent research on the case on the Internet; sending e-mails, text messages, tweets or other communication conveying developments in a trial or deliberations; or using the camera or audio features of mobile technology to record courtroom proceedings. Some courts have also dealt with cases in which jurors have used the Internet or social media during trial, and have had to determine the impact and remedy for such use.

Overview of Current Instructions This article reviews available civil and criminal jury instructions23 – including official and non-official compilations, as well as statutes or court rules imposing instructions – for the federal24 and state courts, and the local courts in the District of Columbia.25 Among the federal courts, six circuits have not compiled civil jury instructions26 and three have not compiled criminal instructions,27 although the U.S. Judicial Conference has formulated an instruction for civil and criminal cases in all federal courts. All states have compiled civil instructions, and all but three have compiled criminal instructions.28 Of the jurisdictions with instructions, two federal circuits and 21 states have “archaic” civil instructions, meaning that they either do not have any language regarding juror access to the media and discussions about cases, have only general language on the issue, or have language that only mentions traditional media (newspapers, radio, and television). In criminal instructions, five federal circuits have such archaic instructions, as do 13 states. Five federal circuits have “modern” civil instructions that either mention the Internet generally, mention both the Internet and social media, or mention specific web and social media sites and services. Seventeen states also have such modern civil instructions. On the criminal side, four federal circuits have modern instructions, while three have archaic ones. Among the states, 12 have archaic instructions, while 34 have updated their criminal instructions to account for the modern media landscape. 22. Even when adopted by a court, “pattern instructions are merely helpful suggestions to assist the practitioner and the trial court in formulating instructions and are not necessarily binding on the trial court nor automatically approved for its use. Nevertheless, some pattern instructions have been specifically approved.” 1 Fed. Jury Prac. & Instr. § 7:2 (6th ed. updated 2011). 23. Jury instructions were collected from a variety of sources, incouding Weslaw,; Lexis; Internet resources; published resources in the Wiener-Rogers Law Library at the Boyd School of Law; the Pence Law Library at the American University Washington College of Law; and the Library of Congress; and court public information officers at individual courts. 24. Some federal district courts have compiled their own sets of instructions. These are not analyzed in this article. 25. In the remainder of this article, the District of Columbia’s local courts will be counted among state courts. 26. These are the First, Second, Fourth, Sixth, Tenth, and District of Columbia Circuits. 27. These are the Second, Fourth, and District of Columbia Circuits.. 28. The three states without any sort of criminal instructions are Alabama, Delaware, and Rhode Island.

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Jury Instructions for the Modern Age Among the federal circuits, only one – the Eighth – has civil instructions that include a rationale for the restrictions on juror behavior. The Eleventh Circuit includes such a rationale in its criminal instructions. Among the states, ten include the rationale in their civil instructions, while seven include it in their criminal instructions. Civila No Instructions Archaic Instructions No Language General Language Newspaper / Radio / TV Modern Instructions Internet Internet / Social Media Specific Sites Includes Rationale

Federal 6b 2 0 1 1 5b 2 2 0b 1b

State 0 20 0 18 2 31 5 9 17 10

Criminala Federal State 3b 4 5 12 0 2 2 6 3 4 4b 35 1 7 3 13 0b 15 1b 7

a. E  xcept for the U.S. Judicial Conference instruction, general provisions applicable to both civil and criminal cases are included in both categories. b. T  his includes individual circuits’ instructions, but excludes the admonition formulated by the U.S. Judicial Conference for all federal civil and criminal trials. That admonition would fall into the “Specific Sites” and “Includes Rationale” categories.

The Need for Modern Jury Instructions The remainder of this article lays out these instructions by circuit and state, examining how they deal with jurors discussing or researching cases, especially through the use of the Internet and social media. Each section also includes descriptions of cases in which such behavior by jurors has been a factor. It is clear that jurisdictions without jury instructions specifically addressing use of the Internet and social media by jurors must address this issue directly. But several of the cases involving juror use of social media have occured in jurisdictions with modern jury instructions which admonish jurors to not discuss or research the case online, showing that such instructions alone are not sufficient. The court should give this instruction at the very start of jury service, and repeat it often throughout voir dire, trial and deliberations. These instructions cannot be a mere admonishment. They should also explain the reasons behind the restrictions, and should also remind jurors of the consequences of impropet behavior–not only to themselves, but to the court system.

Federal General Instructions In late January 2010 the U.S. Judicial Conference, which sets policies for all federal courts except the Supreme Court, sent all federal district judges suggested jury instructions on “juror use of electronic communication technologies” during trial.29 The suggested instruc 29. See U.S. Jud. Conf., Comm. on Ct. Admin. & Case Mgmt, Proposed Model Jury Instrs.: The Use of Electronic Technology to Conduct Research on or Communicate about a Case (Dec. 2009), available at http://www.uscourts.gov/newsroom/2010/DIR10-018.pdf. Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age tions are apparently intended for use in both civil and criminal cases.30 The suggested instructions prior to trial provide: You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in the case, and the individuals or corporations involved in the case. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Please do not try to find out information from any source outside the confines of this courtroom. Until you retire to deliberate, you may not discuss this case with anyone, even your fellow jurors. After you retire to deliberate, you may begin discussing the case with your fellow jurors, but you cannot discuss the case with anyone else until you have returned a verdict and the case is at an end. I hope that for all of you this case is interesting and noteworthy. I know that many of you use cell phones, Blackberries, the internet and other tools of technology. You also must not talk to anyone about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, My Space, LinkedIn, and YouTube.31

As the jury prepares to deliberate, the suggested instruction is: During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet service, or any text or instant messaging service; or any internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.32

Criminal Instructions

The Federal Judicial Center33 has its own set of pattern criminal jury instructions. Because these instructions were last updated in 1988, they do not reference social media or the Internet.34 But they do speak of avoiding “news reports of the trial,” and admonish jurors not to “discuss the case with anyone.”35 In the absence of updated instructions from the court, a leading treatise on federal courts practice has stepped into the void with updated instructions that mention the Internet and social media.36 30. Many federal courts ban or place limits on whether “smart phones” can be brought into courthouses at all. For a summary of these policies, see Administrative Office of U.S. Courts, Considerations in Establishing A Court Policy Regarding the Use of Wireless Communication Devices (2010 Update) (memo), n.d. [2010], available at http://www.wired.com/images_blogs/threatlevel/2011/03/dir11-019_pg1-8.pdf. 31. Id. 32. Id. 33. “The Federal Judicial Center is the research and education agency of the federal judicial system.” Fed. Jud. Ctr., About the Federal Judicial Center, available via http://www.fjc.gov/. 34. .See Pattern Crim. Jury Instr. 1 (Fed. Jud. Ctr. 1988) (preliminary instruction); Pattern Crim. Jury Instr. 5 (Fed. Jud. Ctr. 1988) (recess instruction). 35. Pattern Crim. Jury Instr. 5 (Fed. Jud. Ctr. 1988). 36. Compare e.g., 1A Fed. Jury Prac. & Instr. § 10:01 (6th ed.) (opening instruction including admonition to avoid Internet coverage) with 3 Fed. Jury Prac. & Instr. § 101.01 (5th ed.) (opening instruction admonishing jurors to avoid “news articles that might be published about the case,” as well as “any television or radio comments about the trial.”)

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Jury Instructions for the Modern Age Do not read any news accounts about this case in any newspaper or on the internet or watch any such news accounts on television or listen to any such news accounts on the radio. You must not consider anything you may have read or heard about the case outside of this courtroom whether before or during the trial or during your deliberations. Do not attempt any independent research or investigation about this matter. Your decision in this case must be based solely and exclusively upon the evidence received during this trial, my final instructions, and not upon anything else.37 During this recess and all other recesses, you must not discuss this case with anyone. This includes your family, other jurors, and anyone involved in the trial. If anyone attempts in any way to talk to you about this trial during a recess, it is your obligation to tell me immediately. Do not watch or listen to any news reports concerning this trial on television or on radio and do not read any news accounts of this trial in a newspaper or on the internet. Do not speak at all with any of the parties, the witnesses, or the attorneys. You are required to keep an open mind until you have heard all of the evidence in this case, the closing arguments of counsel, and the final instructions of law provided by the Court.38 *** I am advised that reports about this trial are appearing in the newspapers [and] [or] on radio] [and] [or] on television] [and] [or] on the internet]. The person who wrote or is reporting the story may not have listened to all of the testimony as you have, may be getting information from people who you may not see here in court under oath and subject to cross-examination, may emphasize an unimportant point, or may simply be wrong. Please do not read anything or listen to anything or watch anything with regard to this trial. The case must be decided by you solely and exclusively on the evidence which is received here in court.39

Circuit Courts In addition to pattern instructions for federal courts as a whole, most of the individual circuit courts have created sample—but non-binding40—jury instructions for federal trial courts in their geographic areas.

First Circuit – Civil: No Instructions;  Criminal: Archaic Civil Instructions

The First Circuit has not promulgated model instructions for general civil trials.41

Criminal Instructions The latest criminal pattern jury instructions promulgated by the First Circuit were published in 1998, and do not address the Internet or other forms of new media. To insure fairness, you as jurors must obey the following rules: *** Fourth, during the trial do not talk with or speak to any of the parties, lawyers or witnesses involved in this case—you should not even pass the time of day with any of them. It is important not only that

37. 1A Fed. Jury Prac. & Instr. § 10:01 (6th ed.) (opening instruction). 38. 1A Fed. Jury Prac. & Instr. § 11:02 (6th ed.) (admonitions at court recesses–short form). 39. 1A Fed. Jury Prac. & Instr. § 11:08 (6th ed.) (publicity during trial). 40. See. e.g., U.S. v. Norton, 846 F.2d 521, 524-25 (8th Cir. 1988) (“The Model Instructions … are not binding on the district courts of this circuit, but are merely helpful suggestions to assist the district courts.”); accord U.S. v. Williams, 20 F.3d 125, 131 (5th Cir. 1994). 41. Judge D. Brock Hornby of the federal district court in Maine has drafted proposed pattern jury instructions for use in particular types of cases in the First Circuit, but none have been adopted by the court. None of the proposed instructions, which are available at http://www.med.uscourts.gov/history/ mainehistory.htm, deal with juror communications or research. Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age you do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the lawsuit sees you talking to a person from the other side—even if it is simply to pass the time of day—an unwarranted and unnecessary suspicion about your fairness might be aroused. If any lawyer, party or witness does not speak to you when you pass in the hall, ride the elevator or the like, it is because they are not supposed to talk or visit with you; Fifth, do not read any news stories or articles about the case or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it; Sixth, do not do any research, such as consulting dictionaries or other reference materials, and do not make any investigation about the case on your own; …42

Cases In a 2009 decision, the First Circuit reversed a drug distribution conspiracy conviction because a juror had conducted online research because she disagreed with the other jurors’ definitions of the term “attempt to possess with the intent to distribute narcotics.”43 In another 2009 case, a juror in a wrongful death case sent Facebook “friend” requests to two of the plaintiffs, and sent an email to their attorney in which the juror said that the juror found out about the plaintiffs’ “partying ways” through the site. District Judge D. Brock Hornby denied a motion for a new trial, after determining that the juror visited the site after deliberations, and that the information did not play a role in the verdict.44

Second Circuit – Civil: No Instructions;  Criminal: No Instructions The Second Circuit has not adopted model civil or criminal jury instructions.

Cases During the 2001 New York trial of suspects in the 1998 terrorist bombings of American embassies in Africa, a juror allegedly researched the concept of “aiding and abetting” on the Internet: a question that the jury had asked the court during deliberations.45 After their conviction, the defendants sought a new trial on this and other grounds,46 but the motion was denied.47 More recently, ExxonMobil sought a new trial in a federal case in which a jury ordered the company to pay $104 million to New York City for contaminating groundwater, once the court discovered that at least five jurors, one of whom was removed before deliberations, had done independent research online. The judge denied the motion, but observed that such situations were a growing problem.48

42. Pattern Crim. Jury Instr. 1st Cir. 1.07 (1998) (preliminary instruction). 43. U.S. v. Bristol-Martir, 570 F.3d 29, 41-44 (1st Cir. 2009). 44. Wilgus v. F/V Sirius, Inc., Civil Action No. 08-225-P-H (D. Maine, order Oct. 27, 2009) (denying plaintiffs’ motion for new trial). 45. See Phil Hirschkorn, Bombings jury seeks info on ‘aiding and abetting’, CNN, May 21, 2001, http:// archives.cnn.com/2001/LAW/05/21/embassy.bombings/. 46. See Jailed embassy bombers seek new trial, Associated Press, Jan. 17, 2003, available at http://mg.co.za/ article/2003-01-17-jailed-embassy-bombers-seek-new-trial. 47. U.S. v. Bin Laden, 2005 WL 287404, *2-3 (S.D.N.Y. 2005), aff ’d on other grounds, In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93 (2nd Cir. 2008), cert. denied, Al-’Owhali v. U.S., 129 S. Ct. 2778, 174 L. Ed. 2d 273 (U.S. June 8, 2009), cert. denied, El-Hage v. U.S., 130 S. Ct. 1050, 175 L. Ed. 2d 928 (U.S. 2010). 48. In re Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation 739 F. Supp. 2d 576, 609-13 (S.D.N.Y. 2010).

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Jury Instructions for the Modern Age Search engines have indeed created significant new dangers for the judicial system. It is all too easy for a juror to find out more than he or she should by typing a few carefully chosen words into a search engine.49

Third Circuit – Civil: Modern;  Criminal: Modern Civil Instructions The Third Circuit has updated its Model Civil Jury Instructions to add language about the Internet, but not as comprehensively as it has updated the criminal instructions. For example, the preliminary instruction on juror conduct reads, … Second, do not read or listen to anything related to this case that is not admitted into evidence. By that I mean, if there is a newspaper article or radio or television report relating to this case, do not read the article or watch or listen to the report. In addition, do not try to do any independent research or investigation on your own on matters relating to the case or this type of case. Do not do any research on the internet, for example. You are to decide the case upon the evidence presented at trial.50

The Circuit also updated its admonition against accessing information about the trial, with the revised admonition requesting that jurors “… not read, watch or listen to any news reports of the trial, or conduct any research or investigation, including on the Internet.”51 A note to this instruction recommends that it “may be modified to be given at the beginning of the trial, as well as before a recess.”52

Criminal Instructions The Third Circuit also updated its Model Criminal Jury Instructions in November 2009, effective in January 2010, to add language about the Internet to the admonition against accessing information about the trial. (7) Do not use a computer, cellular phone, or other electronic devices while in the courtroom or during deliberations. These devices may be used during breaks or recesses for personal uses, but may not be used to obtain or disclose information about this case. (8) Do not do any research or make any investigation on your own about any matters relating to this case or this type of case. This means, for example, that you must not visit the scene, conduct experiments, consult reference works or dictionaries, or search the internet for additional information, or use a computer, cellular phone, or other electronic devices, or any other method, to obtain information about this case, this type of case, the parties in this case, or anyone else involved in this case. You must decide this case based only on the evidence presented in the courtroom and my instructions about the law. It would be improper for you to try to supplement that information on your own.53

Cases A Pennsylvania state senator on trial for federal corruption charges sought to remove a juror who had posted updates on the trial on Facebook, Twitter, and his blog during 49. Id. at 609. 50. Model Civ. Jury Instr., 3rd Cir. 1.3 (2010). 51. Model Civ. Jury Instr., 3rd Cir. 2.14 (2010) (recess admonition). 52. Id., Comment. See also Instruction 1.3 (providing similar admonitions as part of a broader instruction at the beginning of the case). 53. Mod. Crim. Jury Instr. 3rd Cir. 1.03 (Preliminary Instructions Before Opening Statements; Conduct of the Jury). See also Mod. Crim. Jury Instr. 3rd Cir. 2.01 (2010) (including Internet in recess admonition to avoid coverage of case); Mod. Crim. Jury Instr. 3rd Cir. 9.04 (2010) (same in admonition for overnight or weekend recesses); Mod. Crim. Jury Instr. 3rd Cir. 2.36 (2010) (including Internet in general admonition to avoid coverage of highly-publicized case); Mod. Crim. Jury Instr. 3rd Cir. 9.01 (including Internet research in admonition for alternate jurors). Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age deliberations.54 After an in camera hearing during which the juror was questioned about his general media and social media use during the trial, the court refused to remove the juror, finding that the juror “is one conscientious guy trying very much to comply with all the rules and regulations that I’ve established, more so [than] I would ever imagine that a juror would do. And I think that, you know, I’ve heard him and I don’t have any trouble with keeping him on the jury.”55 The defense objected, but was overruled. After the senator was convicted, he moved for a new trial on this and other grounds. The court denied the motion, finding that the defendant had not shown any outside influence on the juror that could have affected the verdict.56 Shortly after the judge denied the new trial motion, Philadelphia magazine reported that the jurors heard about the questions regarding the Internet postings.57 This led the defense to renew its motion for a new trial, which was similarly denied.58 The defendant has appealed this ruling.59

Fourth Circuit – Civil: No Instructions;  Criminal: No Instructions The Fourth Circuit has not adopted model civil or criminal jury instructions.

Fifth Circuit – Civil:Archaic ;  Criminal:Archaic Civil Instructions The Fifth Circuit’s Pattern Civil Jury Instructions, last updated in 2006, refer to avoiding “news reports of the trial,”60 and do not mention the Internet or social media.61

Criminal Instructions The Fifth Circuit’s pattern criminal instructions last updated in 2001, similarly do not mention the Internet or social media. Now that the trial has begun, you must not read about it in the newspapers or watch or listen to television or radio reports of what is happening here. The reason for these rules, as I am certain you will understand, is that your decision in this case must be made solely on the evidence presented at the trial.62 54. U.S. v. Fumo, No. 06-319, 2009 WL 1688482, at *58, 2009 U.S. Dist. LEXIS 51581 (E.D. Pa. June 17, 2009). The postings were discovered by a local television station. The juror saw the television report (accidently, he said, after watching an entertainment program), and immediately began deleting the posts. Id. 55. Id. (quoting transcript of In Camera Hearing 34, held Mar. 16, 2009). 56. Id., 2009 WL 1688482 at *67. 57. See Ralph Cipriano, Power: Fumo, After the Fall, Philadelphia magazine, July 9, 2009, at 4 (internet version), http://www.phillymag.com/articles/power_vince_fumo_after_the_fall/page4 (p. 4 of 6). The magazine article also reported that one juror’s co-workers made her aware of excluded evidence. Id. at 3. 58. U.S. v. Fumo, 639 F.Supp.2d 544 (E.D. Pa. 2009). 59. U.S. v. Fumo, No. 09-3389 (3d Cir. filed Aug. 18, 2009). Fumo’s appeal was filed as a countersuit to the government’s appeal of the sentence imposed. See U.S. v. Fumo, No. 09-3388 (3d Cir. filed Aug. 18, 2009). Both appeals are pending. See also Robert Moran, Fumo lawyers file brief seeking new trial, Phil. Inquirer, Feb. 11, 2011, http://articles.philly.com/2011-02-11/news/28350489_1_fumo-lawyers-eric-wuest-samuel-j-buffone. 60. Pattern Civil. Jury Instr. 5th Cir. 2.1 (2006) (cautionary instruction for first recess). 61. See also Pattern Civil. Jury Instr. 5th Cir. 1.1 (2006) (preliminary instructions admonishing jurors to “not read any newspaper account of this trial or listen to any radio or television newscast concerning it.”). 62. Pattern Crim. Jury Instr. 5th Cir. 1.01 (2001).

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Sixth Circuit – Civil: No Instructions;  Criminal: Archaic Civil Instructions The Committee on Pattern Jury Instructions of the District Judges Association of the Sixth Circuit has not drafted pattern civil jury instructions.

Criminal Instructions The Sixth Circuit’s Pattern Criminal Jury Instructions do not include any admonishment to the jury to avoid news coverage of the case. Instruction 8.02 reminds jurors that they must make their decision based only on the evidence presented in court, and admonishes them to “not conduct any experiments inside or outside the jury room; … not bring any books, like a dictionary, or anything else with you to help you with your deliberations; … not conduct any independent research, reading or investigation about the case; and … not visit any of the places that were mentioned during the trial.”63

Cases Lawyers for the family of a Kentucky man who died after being Tasered by police sought to have a 2010 verdict for one of the officers in a federal civil rights lawsuit64 set aside after a juror reported that two jurors had consulted Taser International’s website and used information from the site to persuade other jurors that Tasers are not lethal.65 The court denied the motion on the grounds that there was substantial evidence that the officer who was exonerated did not Taser the decedent.66

Seventh Circuit – Civil: Modern;  Criminal: Archaic Civil Instructions The Seventh Circuit has no formal pattern preliminary instructions for civil trials, “in light of the concern that such a set might increase disputes over the way in which preliminary instructions should be worded.”67. But the committee still provides sample preliminary instructions, with the proviso that “the sample instructions did not receive the same scrutiny from the Committee as the pattern instructions have received.”68 The sample instruction regarding juror conduct does not reference the Internet, stating that “you must not read any news stories or articles or listen to any radio or television reports about the case or about anyone who has anything to do with it,” and that “you must 63. Committee on Pattern Criminal Jury Instructions. District Judges Association, Sixth Circuit; Pattern Criminal Jury Instruction 8.02 (2009), available at http://www.ca6.uscourts.gov/internet/ crim_jury_insts/pdf/crmpattjur_full.pdf. 64. The jury was unable to reach a verdict regarding the other officer. Andrew Wolfson, Taser-Related Death Verdict Challenged Over Juror’s Conduct, Louisville Courier-J., Jan. 9, 2010. 65. Id. 66. Meinhart v. Campbell, Civil No. 07-465 (memorandum and order Jan. 13, 2010), available at http:// www.archive.org/download/gov.uscourts.kywd.62630/gov.uscourts.kywd.62630.80.0.pdf. After being set for retrial, the claims against the other police officer were settled. Docket, Meinhart v. Campbell, supra, available at http://ia700408.us.archive.org/14/items/gov.uscourts.kywd.62630/gov.uscourts. kywd.62630.docket.html. Another case in the Sixth Circuit, U.S. v. Wheaton, 426 F. Supp. 2d 666 (N.D. Ohio 2006), aff ’d, 517 F. 3d 350 (6th Cir. 2008), involved a juror using mapping software on a laptop to determine distances during deliberations in a drug conspiracy case. The case is not included here because the software and maps were both resident on the computer, and did not involve Internet access. The appeals court upheld the trial court’s refusal to grant a new trial. 67. Fed. Civ. Jury Instr., 7th Cir. (2010), App. at 172 (Appendix), available at http://www.ca7.uscourts. gov/7thcivinstruc2005.pdf. 68. Id. Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age not do any research, such as consulting dictionaries, searching the Internet or using other reference materials, and do not make any investigation about the case on your own.”69 But in 2005 the Seventh Circuit’s Committee on Pattern Civil Jury Instructions added a reference to the Internet to its “during trial” jury instruction regarding “what is evidence.” The amended provision reads, Second, anything that you may have seen or heard outside the courtroom is not evidence and must be entirely disregarded. [This includes any press, radio, Internet or television reports you may have seen or heard. Such reports are not evidence and your verdict must not be influenced in any way by such publicity.]70

The admonition for recesses reminds jurors to avoid “news reports,” without further specification.71 But the trial instruction on news coverage has been amended to have the court note that “reports about this trial [or about this incident] are appearing in the newspapers and [or] on radio and television [and the internet],” and to explain that this information may not be reliable because “[t]he reporters may not have heard all the testimony as you have, may be getting information from people whom you will not see here under oath and subject to cross examination, may emphasize an unimportant point, or may simply be wrong.”72

Criminal Instructions The criminal instructions have not been similarly updated. They still provide that “anything that you may have seen or heard outside the courtroom is not evidence and must be entirely disregarded. [This includes any press, radio, or television reports you may have seen or heard.]”73

Eighth Circuit – Civil: Modern;  Criminal: Archaic Civil Instructions The Eighth Circuit updated its juror conduct instructions for civil trials in 2009 to add Internet research to its list of prohibited juror conduct,74 and rewrote the provisions in 2011 to include social media and to give jurors an explicit rationale for the prohibitions. Thus, the instructions prior to voir dire now provide: Members of the Jury Panel, if you have a cell phone, PDA, Blackberry, smart phone, I-phone and any other wireless communication device with you, please take it out now and turn it off. Do not turn it to vibration or silent; power it down. [During jury selection, you must leave it off.] (Pause for thirty seconds to allow them to comply, then tell them the following:) If you are selected as a juror, (briefly advise jurors of your court’s rules concerning cellphones, cameras and any recording devices). I understand you may want to tell your family, close friends, and other people about your participation in this trial so that you can explain when you are required to be in court, and you should warn them not to ask you about this case, tell you anything they know or think they know about it, or discuss this case in your presence. You must not post any information on a social network, or communicate with anyone, about the parties, witnesses, participants, [claims]

69. Fed. Civ. Jury Instr., 7th Cir. (2010), App. at 184 (Appendix) (sample preliminary instructions). 70. Fed. Crim. Jury Instr., 7th Cir. 1.06 (2005), available at http://www.ca7.uscourts. gov/7thcivinstruc2005.pdf. 71. Fed. Civ. Jury Instr., 7th Cir. 2.01 (2010). 72. Fed. Civ. Jury Instr., 7th Cir. 2.02 (2010). 73. Fed. Crim. Jury Instr., 7th Cir. 1.06 (1998), available at http://www.ca7.uscourts.gov/pjury.pdf. 74. See e.g., 8th Cir. Model Civil Jury Instr. 1.05 (2009), available at http://www.juryinstructions.ca8.uscourts.gov/civ_manual_2011.pdf.

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Jury Instructions for the Modern Age [charges], evidence, or anything else related to this case, or tell anyone anything about the jury’s deliberations in this case until after I accept your verdict or until I give you specific permission to do so. If you discuss the case with someone other than the other jurors during deliberations, you may be influenced in your verdict by their opinions. That would not be fair to the parties and it would result in a verdict that is not based on the evidence and the law. While you are in the courthouse and until you are discharged in this case, do not provide any information to anyone by any means about this case. Thus, for example, do not talk face-to-face or use any electronic device or media, such as the telephone, a cell or smart phone, camera, recording device, Blackberry, PDA, computer, the Internet, any Internet service, any text or instant messaging service, any Internet chat room, blog, or Website such as Facebook, MySpace, YouTube, or Twitter, or in any other way communicate to anyone any information about this case until I accept your verdict or until you have been excused as a juror. Do not do any research — on the Internet, in libraries, in the newspapers, or in any other way — or make any investigation about this case on your own. Do not visit or view any place discussed in this case and do not use Internet programs or other device to search for or to view any place discussed in the testimony. Also, do not research any information about this case, the law, or the people involved, including the parties, the witnesses, the lawyers, or the judge until you have been excused as jurors. The parties have a right to have this case decided only on evidence they know about and that has been presented here in court. If you do some research or investigation or experiment that we don’t know about, then your verdict may be influenced by inaccurate, incomplete or misleading information that has not been tested by the trial process, including the oath to tell the truth and by cross-examination. Each of the parties is entitled to a fair trial, rendered by an impartial jury, and you must conduct yourself so as to maintain the integrity of the trial process. If you decide a case based on information not presented in court, you will have denied the parties a fair trial in accordance with the rules of this country and you will have done an injustice. It is very important that you abide by these rules. Failure to follow these instructions could result in the case having to be retried. [Are there any of you who cannot or will not abide by these rules concerning communication with others during this trial?] [Failure to follow these rules can result in you being held in contempt.] (And then continue with other voir dire.)75

There is a shorter admonition and explanation in the instructions for use at the end of voir dire, which include the statement that “‘Do not discuss’ also means do not e-mail, send text messages, blog or engage in any other form of written, oral or electronic communication, as I instructed you before.”76 While noting that “many of the items in this instruction can be deleted as duplicative of comments made in Instruction No. 0.01,”77 the preliminary instructions on jury conduct provide further detailed admonitions and rationales. Fifth, … You must not communicate with anyone or post information about the parties, witnesses, participants, [claims] [charges], evidence, or anything else related to this case. … If you discuss the case with someone other than the other jurors during deliberations, it could create the perception that you have already decided the case or that you may be influenced in your verdict by their opinions. That would not be fair to the parties and it may result in the verdict being thrown out and the case having to be retried. During the trial, while you are in the courthouse and after you leave for the day, do not provide any information to anyone by any means about this case. Thus, for example, do not talk face-to-face or use any electronic device or media, such as the telephone, a cell or smart phone, Blackberry, PDA, computer, the Internet, any Internet service, any text or instant messaging service, 75. 8th Cir. Model Civil Jury Instr. 0.01 (2011), available at http://www.juryinstructions.ca8.uscourts. gov/civ_manual_2011.pdf. 76. 8th Cir. Model Civil Jury Instr. 0.02 (2011), available at http://www.juryinstructions.ca8.uscourts. gov/civ_manual_2011.pdf. 77. 8th Cir. Model Civil Jury Instr. 1.05 (2011), available at http://www.juryinstructions.ca8.uscourts. gov/civ_manual_2011.pdf. Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age any Internet chat room, blog, or Website such as Facebook, MySpace, YouTube, or Twitter, or in any other way communicate to anyone any information about this case until I accept your verdict. Sixth, do not do any research — on the Internet, in libraries, in the newspapers, or in any other way — or make any investigation about this case on your own. Do not visit or view any place discussed in this case and do not use Internet programs or other device to search for or to view any place discussed in the testimony. Also, do not research any information about this case, the law, or the people involved, including the parties, the witnesses, the lawyers, or the judge. Seventh, do not read any news stories or articles in print, or on the Internet, or in any blog, about the case, or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it. [In fact, until the trial is over I suggest that you avoid reading any newspapers or news journals at all, and avoid listening to any television or radio newscasts at all. I do not know whether there might be any news reports of this case, but if there are, you might inadvertently find yourself reading or listening to something before you could do anything about it. If you want, you can have your spouse or a friend clip out any stories and set them aside to give to you after the trial is over. I can assure you, however, that by the time you have heard the evidence in this case, you will know what you need to decide it.. The parties have a right to have the case decided only on evidence that has been introduced here in court. If you do some research or investigation or experiment that we don’t know about, then your verdict may be influenced by inaccurate, incomplete or misleading information that has not been tested by the trial process, including the oath to tell the truth and by cross-examination. All of the parties are entitled to a fair trial, rendered by an impartial jury, and you must conduct yourself so as to maintain the integrity of the trial process. If you decide a case based on information not presented in court, you will have denied the parties a fair trial in accordance with the rules of this country and you will have done an injustice. Remember, you have taken an oath to abide by these rules and you must do so. It is very important that you abide by these rules. [Failure to follow these instructions may result in the case having to be retried and could result in your being held in contempt.]78

A shorter version of this admonition, including the rationale and consequences of outside research, are also included in the instruction for recesses.79

Criminal Instructions The circuit’s criminal instructions, however, have not been updated: they do not contain any mention of the Internet or social media. For example, the instruction on jury conduct provides: … do not read any news stories or articles about the case, or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it. [In fact, until the trial is over I suggest that you avoid reading any newspapers or news journals at all, and avoid listening to any TV or radio newscasts at all. I do not know whether there might be any news reports of this case, but if there are you might inadvertently find yourself reading or listening to something before you could do anything about it. If you want, you can have your spouse or a friend clip out any stories and set them aside to give you after the trial is over. It is important for you to understand that this case must be decided by the evidence presented in the case and the instructions I give you.] Sixth, do not do any research or make any investigation on your own about any matter involved in this case. By way of examples, that means you must not read from a dictionary or a text book or an encyclopedia or talk with a person you consider knowledgeable or go to the Internet for information about some issue in this case. In fairness, learn about this case from the evidence you receive here at the trial and apply it to the law as I give it to you.80 78. 8th Cir. Model Civil Jury Instr. 1.05 (2011), available at http://www.juryinstructions.ca8.uscourts. gov/civ_manual_2011.pdf. 79. See 8th Cir. Model Civil Jury Instr. 2.01 (2011), available at http://www.juryinstructions.ca8.uscourts.gov/civ_manual_2011.pdf. 80. Model Crim. Jury Instr., 8th Cir. 1.08 (2009); see also Model Crim. Jury Instr., 8th Cir. 2.01 (2009)

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Ninth Circuit – Civil: Modern;  Criminal: Modern The Ninth Circuit was among the first federal appellate courts to have jury instructions on Internet use.

Civil Instructions The court’s civil instruction regarding juror conduct was amended in 2009 and now provides: [B]ecause you must decide this case based only on the evidence received in the case and on my instructions as to the law that applies, you must not be exposed to any other information about the case or to the issues it involves during the course of your jury duty. Thus, until the end of the case or unless I tell you otherwise: Do not communicate with anyone in any way and do not let anyone else communicate with you in any way about the merits of the case or anything to do with it. This includes discussing the case in person, in writing, by phone or electronic means, via e-mail, text messaging, or any Internet chat room, blog, Web site or other feature. This applies to communicating with your fellow jurors until I give you the case for deliberation, and it applies to communicating with everyone else … Because you will receive all the evidence and legal instruction you properly may consider to return a verdict: do not read, watch, or listen to any news or media accounts or commentary about the case or anything to do with it; do not do any research, such as consulting dictionaries, searching the Internet or using other reference materials; and do not make any investigation or in any other way try to learn about the case on your own. The law requires these restrictions to ensure the parties have a fair trial based on the same evidence that each party has had an opportunity to address. A juror who violates these restrictions jeopardizes the fairness of these proceedings[, and a mistrial could result that would require the entire trial process to start over]. If any juror is exposed to any outside information, please notify the court immediately.81

Criminal Instructions The parallel criminal instruction contains the same language, with a comment noting that “[t]his instruction has been updated specifically to instruct jurors against accessing electronic sources of information and communicating electronically about the case, as well as to inform jurors of the potential consequences if a juror violates this instruction.”82 A further admonition in the jury instruction regarding deliberations tells jurors to neither communicate about the case, including “discussing the case in person, in writing, by phone or electronic means, via email, text messaging, or any Internet chat room, blog, website or other feature…”, nor to research the case by “consulting dictionaries, searching the Internet or using other reference materials; … or in any other way …”83

Tenth Circuit – Civil: No Instructions;  Criminal: Modern Civil Instructions The Tenth Circuit has not promulgated model instructions for civil trials.

Criminal Instructions The Tenth Circuit issued revised criminal jury instructions in 2011 that added language specifically warning jurors against discussing the case or accessing case information online. (recess admonition). 81. Model Civ. Jury Instr., 9th Cir. 1.12 (2009). 82. Model Crim. Jury Instr., 9th Cir. 1.8 and Comment (2010); see also Model Crim. Jury Instr., 9th Cir. 2.1 (2010) (recess instruction). 83. Model Crim. Jury Instr., 9th Cir. 1.8 (2010). Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age … Do not use the internet or any other form of electronic communication to provide any information. Simply put, do not communicate with anyone about the trial until your verdict is received. … Let me add that during the course of the trial you will receive all the evidence you properly may consider to decide the case. Because of this, you should not attempt to gather any information or do any research on your own. Do not attempt to visit any places mentioned in the case, either actually or on the internet, and do not in any other way try to learn about the case outside the courtroom.84

Eleventh Circuit – Civil: Archaic ;  Criminal: Modern Civil Instructions85 The Eleventh Circuit’s pattern civil instructions, which are much more limited and were last updated in 2005, do not mention the Internet or social media.86

Criminal Instructions The 2010 version of the 11th Circuit’s pattern criminal instructions reference specific Internet services and sites in the admonition against juror discussion and research of the case. It also gives jurors a detailed explanation of the reasoning behind the rules. 4. Do not visit or view the premises or place where the charged crime was allegedly committed, or any other premises or place involved in the case. And you must not use Internet maps or Google Earth or any other program or device to search for a view of any location discussed in the testimony. 5. Do not read, watch, or listen to any accounts or discussions related to the case which may be reported by newspapers, television, radio, the Internet, or any other news media. 6. Do not attempt to research any fact, issue, or law related to this case, whether by discussions with others, by library or Internet research, or by any other means or source. In this age of instant electronic communication and research, I want to emphasize that in addition to not talking face to face with anyone about the case, you must not communicate with anyone about the case by any other means, including by telephone, text messages, email, Internet chat, chat rooms, blogs, or social-networking websites such as Facebook, My Space, or Twitter. You must not provide any information about the case to anyone by any means whatsoever, and that includes posting information about the case, or what you are doing in the case, on any device or Internet site, including blogs, chat rooms, social websites, or any other means. You also must not use Google or otherwise search for any information about the case, or the law that applies to the case, or the people involved in the case, including the defendant, the witnesses, the lawyers, or the judge. It is important that you understand why these rules exist and why they are so important: Our law does not permit jurors to talk with anyone else about the case, or to permit anyone to talk to them about the case, because only jurors are authorized to render a verdict. Only you have been found to be fair and only you have promised to be fair — no one else is so qualified. Our law also does not permit jurors to talk among themselves about the case until the court tells them to begin deliberations, because premature discussions can lead to a premature final decision. Our law also does not permit you to visit a place discussed in the testimony. First, you can’t be sure that the place is in the same condition as it was on the day in question. Second, even if it were in the same condition, once you go to a place discussed in the testimony to evaluate the evidence in light of what you see, you become a witness, not a juror. As a witness, you may now have a mistaken view of the scene that neither party may have a chance to correct. That is not fair. Finally, our law requires that you not read or listen to any news accounts of the case, and that you not attempt to research any fact, issue, or law related to the case. Your decision must be based solely 84. Pattern Crim. Jury Instr., 10th Cir. 1.01 (2011) (preliminary instruction). 85. See, e.g., Pattern Civ. Jury Instr., 11th Cir. Note 1 (2005). 86. See, e.g., Pattern Civ. Jury Instr., 11th Cir. Note 1 (2005).

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Jury Instructions for the Modern Age on the testimony and other evidence presented in this courtroom. Also, the law often uses words and phrases in special ways, so it’s important that any definitions you hear come only from me, and not from any other source. It wouldn’t be fair to the parties for you to base your decision on some reporter’s view or opinion, or upon other information you acquire outside the courtroom. These rules are designed to help guarantee a fair trial, and our law accordingly sets forth serious consequences if the rules are not followed. I trust that you understand and appreciate the importance of following these rules, and in accord with your oath and promise, I know you will do so.87

Cases A federal district court judge declared a mistrial in March 2009 in a complex prosecution involving Internet pharmacies selling prescription drugs with scant medical supervision, after discovering that 10 of the 12 jurors had done independent Internet research about the case.88 As one of the lawyers involved told a local newspaper, “They Googled defendants’ names. They Googled definitions of medical terms. There was a lot of Googling going on.”89 The government later dropped the prosecution.90 In the prosecution of HealthSouth Corporation founder and former Chief Executive Officer Richard Scrushy and former Alabama governor Don Eugene Siegelman for bribery and conspiracy, the convicted defendants appealed on various grounds, including allegations that the jurors were exposed to extrinsic evidence from the Internet.91 The district court found that while the jurors had seen an unredacted indictment from the case92 that one juror found on the court’s online docket system and information concerning the role and obligations of the jury foreperson from the court’s website, the exposure was harmless beyond a reasonable doubt.93 The appeals court affirmed on this point,94 but the Supreme Court remanded for reconsideration in light of its decision in Skilling v. United States.95 On remand, the 11th Circuit again affirmed the district court on this point.96

D.C. Circuit – Civil: No Instructions;  Criminal: No Instructions The Circuit for the District of Columbia has not adopted model civil or criminal jury instructions. Neither has the Federal District Court for the District of Columbia, the only federal trial court within the D.C. Circuit’s jurisdiction.

87. Pattern Crim. Jury Instr., 11th Cir. 1 (2010) (preliminary instruction) 88. United States v. Hernandez, Crim. No. 07-60027 (S.D. Fla. mistrial declared March 10, 2009); see Deirdra Funcheon, Jurors and Prosecutors Sink a Federal Case Against Internet Pharmacies, Broward Palm Beach NewTimes, Apr. 23, 2009, http://www.browardpalmbeach.com/2009-04-23/news/jurors-and-prosecutors-sink-a-federal-case-against-internet-pharmacies/1/. 89. Id. 90. See Helfant v. U.S., No. 09-60838-CIV, 2009 WL 2258324, at *1 (S.D. Fla. July 29, 2009) (denying motion by co-defendant to vacate guilty plea after government dropped case against remaining defendants). 91. United States v. Siegelman, 561 F.3d 1215 (11th Cir. 2009), reh’g and reh’g en banc denied, 347 F. App’x. 556 (11th Cir. 2009), vacated, 130 S. Ct. 3542, 177 L. Ed. 2d 1120 (2010) (remanding for reconsideration in light of Skilling v. United States, 561 U.S. ----, 130 S.Ct. 2896, 177 L. Ed. 2d 619 [2010]). 92. The court had given the jury a redacted version of this document, after the court granted a government motion to remove multiplicitous charges that could have resulted in both defendants being convicted twice for the same offense. Id. at 1239. 93. Id. 94. Id. 95. 130 S. Ct. 3542, 177 L. Ed. 2d 1120 (2010) (remanding for reconsideration in light of Skilling v. United States, 561 U.S. ----, 130 S.Ct. 2896, 177 L. Ed. 2d 619 [2010]). 96. U.S. v. Siegelman, 640 F.3d 1159, 1183-84 (11th Cir. 2011). Reynolds Courts & Media Law Journal

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Alabama – Civil: Modern;  Criminal: No Instructions Civil Instructions Alabama’s Pattern Jury Instructions Committee recently approved changes to the state’s civil instructions telling jurors to not discuss or investigate cases, to also admonish against the use of the Internet and social media.97 Until you have heard all of the evidence in the case and have received my instructions, you must not talk about the case with anyone or let anyone talk about it with you. You must keep an open mind and not decide the case until I tell you to decide the case. You must not discuss the case among yourselves or with anyone until the case is over. This means that you must not discuss the case in person, in writing, on the phone, or on the Internet. You must not “tweet,” “blog,” or communicate by any other means, anything about the case during the trial and deliberations. If members of your family or friends or anyone else asks you about the case, you should tell them that the judge told you not to discuss it. The lawyers, parties and witnesses are not allowed to talk to you, and you can’t talk to them during the trial. Even a conversation that has nothing to do with the case would look bad. If the participants in the trial fail to greet you or talk with you during the trial, it is because of this rule.98 *** You must decide this case based upon the evidence presented in court and the law I give you. No juror should attempt to make an individual investigation of the facts, the law, or of the location(s) testified about. You cannot gather evidence or research the law for yourself or anybody else. You must not investigate the facts, the law, or any party, or witness, on the Internet or otherwise, [visit the scene of the accident] [attempt to inspect or examine any object or property unless that object or property has been received in evidence and the inspection is made in the court room or in the jury room]. We have learned that some jurors in other cases have tried to research the law or the facts of a case so they can learn more about the case they are hearing. A juror cannot consider facts that are not in evidence. If there is anything about this case or similar cases in the news media or on the Internet, you must not read, listen to, or watch the report. Do not use the Internet or any other method to investigate any aspect of the case. This is because your verdict must be based only on the legal evidence that is presented in the courtroom. Any juror misconduct can cause your verdict to be thrown out. If you learn that any juror has violated this instruction, you must tell me or one of the attendants about it.99

The state’s provision regarding jurors consulting outside materials has also been revised to bar Internet research. There may be some words or phrases or terms used in the trial of the case that need to be defined. The Court will give to you the proper definition of these words or terms. The legal definition may be different from that which you customarily give them. If this should happen, you must accept the Court’s definition. In no event should you seek any definition of any word or phrase by consulting any book, dictionary, encyclopedia, the Internet, or any other source. It would be highly improper for you to do so.100

97. See Diane Babb Maughan, 12 Jurors and the Internet, Birmingham Bar Ass’n. Bull., Summer 2010, at 9, available at http://www.birminghambar.org/docs/bulletin-summer2010.pdf. 98. Ala. Pattern Jury Instr., Civ. 1.11 (2nd ed. 2010). 99. Ala. Pattern Jury Instr. Civ. 1.125 (2d ed. 2009). 100. Ala. Pattern Jury Instr. Civ. 1.22 (2010).

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Criminal Instructions Alabama does not have pattern criminal jury instructions.

Alaska – Civil: Archaic;  Criminal: Modern Civil Instructions The Alaska Civil Pattern Jury Instructions, which were last revised in 1999, include only the admonishment to jurors that “you must decide this case based only on the evidence presented here in court.”101 The civil instruction for recesses similarly does not mention the Internet.102

Criminal Instructions Alaska’s Criminal Pattern Jury Instructions include a list of new media sources in the admonition against jurors discussing the case or accessing information outside of court, and gives a rationale for this rule: You, as jurors, must decide this case based solely on the evidence presented here in court [unless I specifically instruct you otherwise]. This means that during the trial you must not obtain any outside information from ANY source about this case or the people involved in it. The reason for this instruction is that the parties, the court, and the public have a right to know what evidence you, as jurors, are using to decide this case. If you decide the case based on information you find on the Internet or through communicating with friends, this right will be violated. In recent years, because of the growth in electronic communications, an increasing number of cases have had to be retried, at great expense, because of juror misconduct in obtaining outside information from the Internet, blogs, e-mail, electronic messaging, social networking sites, and other sources. I need to be assured that each of you will do everything you can to prevent such an unfortunate outcome from happening in this case. So, do not look up ANY information about this case or the people, places, or subjects involved in it from any source, including any public database, dictionary, the Internet, or other reference material. Do not look for information on-line or use a search engine like Google to obtain information. Do not read, listen to, or watch any newspaper, television, or radio report or commentary about the case. You must let me or my staff know immediately if you or any other jurors see or hear news reports or other reports, comments, or information about the case. Do not discuss with anyone, including friends, family, or co-workers, any subject connected with this case. “No discussion” also means no electronic communication – no emailing, texting, instant messaging, tweeting, blogging, chatting, or posting on Facebook, MySpace, or any other social networking site. You may tell people who need to know that you have been picked for the jury and how long the case may take. But do not discuss the case in any other way.103

The cautionary instruction to avoid news coverage of the case also mentions the Internet.104

Arizona – Civil: Modern;  Criminal: Modern Civil Instructions Arizona’s civil jury instructions, last revised in 2005, include only one reference to the Internet, in the general jury admonition about juror conduct. 101. Alaska Civ. Pattern Jury Instr. 1.05 (rev. 1999), available at http://www.courts.alaska.gov/insciv/01.05.doc. 102. Alaska Civ. Pattern Jury Instr. 1A.22 (rev. 1999), available at http://www.courts.alaska.gov/ insciv/01A.22.doc. 103. Alaska Crim. Pattern Jury Instr. 1.02 (2010), available at http://www.courts.alaska.gov/ins/1.02.doc. 104. Alaska Crim. Pattern Jury Instr. 1.03 (2011), available at http://www.courts.alaska.gov/ins/1.03.doc. Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age Do not do any research or make any investigation about the case on your own. Do not view or visit the locations where the events of the case took place. ‘Research’ includes doing things such as looking up words in a dictionary or encyclopedia, or using treatises or similar sources with respect to any of the issues involved in the case. Research also includes searching on the internet or using other electronic devices to obtain information. The reason for this is that you have to base any decision on the evidence that is produced here in the courtroom.105

Criminal Instructions The criminal instructions, updated in 2009, include a much more extensive discussion of juror use of the Internet and social media. … Arizona law prohibits a juror from receiving evidence not properly admitted at trial. Therefore, do not do any research or make any investigation about the case on your own. Do not view or visit the locations where the events of the case took place. Do not consult any source such as a newspaper, a dictionary, a reference manual, television, radio or the Internet for information. … Do not talk to anyone about the case, or about anyone who has anything to do with it, and do not let anyone talk to you about those matters, until the trial has ended, and you have been discharged as jurors. This prohibition about not discussing the case includes using e-mail, Facebook, MySpace, Twitter, instant messaging, Blackberry messaging, I-Phones, I-Touches, Google, Yahoo, or any internet search engine, or any other form of electronic communication for any purpose whatsoever, if it relates in any way to this case. This includes, but is not limited to, blogging about the case or your experience as a juror on this case, discussing the evidence, the lawyers, the parties, the court, your deliberations, your reactions to testimony or exhibits or any aspect of the case or your courtroom experience with anyone whatsoever, until the trial has ended, and you have been discharged as jurors. Until then, you may tell people you are on a jury, and you may tell them the estimated schedule for the trial, but do not tell them anything else except to say that you cannot talk about the trial until it is over. One reason for these prohibitions is because the trial process works by each side knowing exactly what evidence is being considered by you and what law you are applying to the facts you find. As I previously told you, the only evidence you are to consider in this matter is that which is introduced in the courtroom. The law that you are to apply is the law that I give you in the final instructions. This prohibits you from consulting any outside source. If you have cell phones, laptops or other communication devices, please turn them off and do not turn them on while in the courtroom. You may use them only during breaks, so long as you do not use them to communicate about any matter having to do with the case. You are not permitted to take notes with laptops, Blackberries, tape recorders or any other electronic device. You are only permitted to take notes on the notepad provided by the court. Devices that can take pictures are prohibited and may not be used for any purpose. ...106

Arkansas – Civil: Modern;  Criminal: Modern Civil Instructions The Arkansas model jury instructions for civil trials include a lengthy “cautionary instruction” that tells jurors to not talk about the case amongst themselves before deliberations, to not talk to anyone else or let anyone else talk to them about the case, and to not read or listen to news reports about the case. The instruction then turns to the Internet and other new media: … Sixth, many of you have cell phones, computers, and other electronic devices. You must not use any device to search the internet or to find out anything about this case. You must decide this case only on the evidence presented in the courtroom. You must not communicate with anyone, including family and friends, about this case, the people and places involved, or your jury service while this case is 105. Rev. Ariz. Jury Instr. (Civ.) 4th (2005), Prelim. Inst. No. 9, available at http://www.myazbar.org/ SecComm/Committees/CIJI/CIJI-PDF/Preliminary.pdf. 106. Rev. Ariz. Jury Instr. (Crim.) 3rd (2009), Prelim. Instr. 13, available at http://www.azbar.org/media/58829/preliminary_criminal_instr.pdf.

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Jury Instructions for the Modern Age being tried. You must not disclose your thoughts about the case before you verbally, by telephone or through any, text or internet transmission or other electronic device prior to deliberations nor should you ask anyone in person, by telephone, text, internet or electronically for advice on how to decide this case. You must not read the newspapers, watch television reports or use a computer, cell phone, the internet, any electronic device, or any other means at all, to get information, definitions or research related to this case or the people and places involved in this case. This applies whether you are in the courthouse, at home, or anywhere else. Also you should not visit places mentioned in the trial or use the internet to look at maps, descriptions or pictures to see any place discussed during the trial. You alone have been chosen by the parties and sworn by this court to try this case. This case must be tried solely upon the evidence presented to you in court and not upon any information or impression, whether correct or not, which you might acquire on your own or from other people or sources. *** Eighth, if you have a cell phone, pager, or any other electronic device, you must turn them off while in the courtroom and during deliberation. You must not use any electronic device to talk about this case, including tweeting, texting, blogging, e-mailing, or posting information on a website, social network or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, about your jury service. Unless instructed otherwise, you can use communication devices only during recesses and only concerning matters totally unrelated to this case. If you desire you will be given a telephone number at which you can be contacted while court is in session in case of an emergency. All of us are depending on you to follow these rules, so that there will be a fair and lawful resolution to this case. The parties have entrusted their case to you and to no other person or entity. If you become aware of any violation of these rules you must notify court personnel of the violation.107

The admonition regarding electronic devices is repeated in the recess instruction: Many of you have cell phones, computers, and other electronic devices. You must not use any device to search the internet or to find out anything about this case. You must decide this case only on the evidence presented in the courtroom. You must not communicate with anyone, including family and friends, about this case, the people and places involved, or your jury service while this case is being tried. You must not disclose your thoughts about the case before you verbally, by telephone or through any, text or internet transmission or other electronic device prior to deliberations nor should you ask anyone in person, by telephone, text, internet or electronically for advice on how to decide this case. You must not read the newspapers, watch television reports or use a computer, cell phone, the internet, any electronic device, or any other means at all, to get information, definitions or research related to this case or the people and places involved in this case. This applies whether you are in the courthouse, at home, or anywhere else. Also you should not visit places mentioned in the trial or use the internet to look at maps, descriptions or pictures to see any place discussed during the trial. Do not use any electronic device to talk about this case, including tweeting, texting, blogging, e-mailing, or posting information on a website, social network or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, about your jury service. Unless instructed otherwise, you can use communication devices only concerning matters totally unrelated to this case.108

Criminal Instructions The Arkansas Model Criminal Jury Instruction for commencement of trial specifically admonishes jurors to not talk about the case or anyone involved with it amongst themselves or with others (including the parties, lawyers, or witnesses), or to tell others about the case.109 107. Ark. Model Jury Instr., Civil 101 (Dec. 2010). 108. Ark. Model Jury Instr., Civil 102 (Dec. 2010). 109. Ark. Model Jury Instr., Crim. 2d 100-A, œœ 2-5 (Apr. 2010). Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age The criminal instructions also tell jurors, “do not read any news stories or articles about the case, or about anyone involved with it, or listen to any radio or television reports about the case or anyone involved in it.”110 An optional addition to this admonition recommends that jurors avoid the media altogether: In fact, until the trial is over, I suggest that you avoid reading any newspapers or news journals at all, and avoid listening to any TV or radio newscasts at all. I do not know whether there might be any news reports of this case, but if there are you might inadvertently find yourself reading or listening to something before you could do anything about it. If you want, you can have your spouse or a friend clip out stories and set them aside to give you after the trial is over. I can assure you, however, that by the time you have heard the evidence in this case, you will know more about the matter than anyone will learn through the news media.111

The instructions also admonish jurors to “not do any research on the Internet or otherwise; or make any investigation about the case or the parties on your own.”112 Finally, the instruction includes two options regarding cell phones and other electronic devices, depending on whether the judge has banned such devices. The first of these, for use when such devices are banned from the courtroom, is a shortened version of the admonition in the civil instructions. Eighth, [if you have a cell phone, pager, or other communication device, you must turn that device off while in the courtroom. Unless instructed otherwise, you can use those devices only during recesses. You will be given a telephone number at which you can be contacted during the trial in case or an emergency]. [OR] [do not bring cell phones, pagers, or other communication devices to the courtroom. If someone need to contact you in an emergency, the court can receive messages that it will deliver to you. If you need to contact someone, the court will make a telephone available to you].113

The model instruction for recesses and adjournments repeats the language about talking with others, and about doing research on the Internet or otherwise.114 The admonitions regarding newspaper, radio, and television coverage are listed as optional,115 as are repetitions of the instructions regarding cell phones and other electronic devices.116

Cases After a jury had awarded $12.6 million to its opponent in a fraud case, Stoam Holdings, Inc. sought a new trial after its attorneys discovered that one juror had posted eight tweets during voir dire and trial. One the tweets was, “Ooh and don’t buy Stoam. Its bad mojo [sic] and they’ll probably cease to exist, now that their wallet is 12m lighter.” 117 Another said, “I just gave away TWELVE MILLION DOLLARS of somebody else’s money.”118 The court denied the motion, holding that the tweets did not show juror bias.119 110. Id., 100-A, ¶ 6. 111. Id. 112. Id., ¶ 7. 113. Id., ¶ 9. See also id., Note on Use. 114. Id.,100-B. 115. Id., 100-B(A). 116. Id., 100-B(B). 117. Jon Gambrell, Appeal Says Juror Sent ‘Tweets’ During 12.6M Case, Associated Press, March 13, 2009. 118. Id. 119. John G. Browning, When All That Twitters Is Not Told: Dangers Of The Online Juror, 73(1) Tex. Bar J.

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California – Civil: Modern;  Criminal: Modern Civil Instructions The Judicial Council of California Civil Jury Instructions, last updated in December 2010, include a preliminary instruction that specifically addresses Internet and new media usage as part of its admonition against discussing the case: This prohibition is not limited to face-to-face conversations. It also extends to all forms of electronic communications. Do not use any electronic device or media, such as a cell phone or smart phone, PDA, computer, the Internet, any Internet service, any text or instant-messaging service, any Internet chat room, blog, or Web site, including social networking websites or online diaries, to send or receive any information to or from anyone about this case or your experience as a juror until after you have been discharged from your jury duty. *** During the trial, do not read, listen to, or watch any news reports about this case. [I have no information that there will be news reports concerning this case.] This prohibition extends to the use of the Internet in any way, including reading any blog about the case or about anyone involved with it or using Internet maps or mapping programs or any other program or device to search for or to view any place discussed in the testimony. *** Do not do any research on your own or as a group. Do not use dictionaries, the Internet, or other reference materials.120

The passages of this instruction regarding electronic communications were added in the past few years.121

Criminal Instructions The criminal jury instructions include a similar provision in the cautionary admonitions instruction:122 During the trial, do not talk about the case or about any of the people or any subject involved in the case with anyone, not even your family, friends, spiritual advisors, or therapists. Do not share information about the case in writing, by email, by telephone, on the Internet, or by any other means of communication. You must not talk about these things with the other jurors either, until you begin deliberating. *** You must not allow anything that happens outside of the courtroom to affect your decision [unless I tell you otherwise]. During the trial, do not read, listen to, or watch any news report or commentary about the case from any source. Do not do any research on your own or as a group regarding this case. Do not use a dictionary(,/or) the Internet(./)[, or <insert other relevant means of communication>]. Do not investigate the facts or law. Do not conduct any tests or experiments, or visit the scene of any event involved in this case. If you happen to pass by the scene, do not stop or investigate.

216, 219 (March 2010), available at http://trendmag2.trendoffset.com/display_article.php?id=351124. 120. Jud. Council of Cal., Civ. Jury Instrs. [hereinafter CACI], No. 100 (2010), available at http://www. courtinfo.ca.gov/jury/civiljuryinstructions/documents/caci_20110101.pdf; see also CACI 5000 (2010) (admonition at conclusion of case). 121. This is based on a comparison of the 2010 instructions with the 2005 version. See CACI No. 100 (2005), available at http://www.courtinfo.ca.gov/reference/documents/civiljuryinst.pdf. The 2005 version included the Internet in the admonition against external research. 122. Such an initial instruction is required by Cal. Penal Code § 1122(a). Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age [If you have a cell phone or other electronic device, keep it turned off while you are in the courtroom and during jury deliberations. An electronic device includes any data storage device. If someone needs to contact you in an emergency, the court can receive messages that it will deliver to you without delay.]123

The research admonition is reiterated in Criminal Instruction 201.124

Other As of Jan. 1, 2010, the California Superior Court in San Francisco requires that all juror questionnaires include a cover sheet containing the following statement: “You may not do research about any issues involved in the case. You may not blog, Tweet, or use the Internet to obtain or share information.”125 The requirement was implemented after a jury pool of 600 had to be excused after it became clear that several of them had researched the case on the internet, and claimed that such research was not covered by the oral admonition that they had been given.126 The Superior Court in San Diego asks jurors to sign declarations saying that they will not use personal electronic and media devices to research or communicate about a case.127

Cases In June 2007, a California appellate court reversed a trial court’s refusal to grant a motion by a convicted burglary defendant to contact the jurors in his trial, after the jury foreman discussed the jury’s deliberations in the case on his blog.128 After questioning of the jurors who did not object to being contacted did not yield any useful information, the defendant renewed his motion for a new trial. The trial court denied this motion, and the appeals court affirmed in February 2009 on the grounds that “[u]nder the totality of the circumstances shown by this record, … we conclude the evidence does not raise a “substantial likelihood” that Juror No. 8 (or any other juror) was actually biased against [the defendant].”129 In January 2008, a juror who posted a picture of the weapon in a murder trial to his blog was held in contempt by a Superior Court judge, but no penalty was imposed after the judge determined that the blogging did not result in an unfair trial.130 In 2009, a California appeals court denied an appeal by a man of convicted of torture and other crimes, including spousal and child abuse offenses, who alleged that the jury was tainted by a juror’s online search for a definition of the term “great bodily injury.” When 123. Jud. Council of Cal., Crim. Jury Instr. [CALCRIM], No. 101 (2011), available at http://www. courtinfo.ca.gov/jury/criminaljuryinstructions/calcrim_juryins.pdf. 124. See CALCRIM No. 201 (2011). 125. See S.F. Super. Ct. Rule 7.2. available at http://www.sfsuperiorcourt.org/Modules/ShowDocument. aspx?documentid=2471. The cover sheet is available at http://sfsuperiorcourt.org/Modules/ShowDocument.aspx?documentid=2486. 126. Kate Moser, Court Lays Down Law on Jury Internet Use, The [San Fran.] Recorder, Sept. 9, 2009, available at http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202433656715. 127. Browning, supra note 117, at 220. 128. People v. McNeely, No. D048692, 2007 WL 1723711 (Cal. App., 4th Dist., Div. 1 June 14, 2007) (unpublished), reh’g denied (Cal. App., 4th Dist., Div. 1 July 3, 2007), rev. denied, No. S154577 (Cal. Sept. 12, 2007). 129. People v. McNeely, No. D052606, 2009 WL 428561 (Cal. App. 4th Dist. Feb. 23, 2009) (unpublished), rev. denied, No. S171530 (Cal. May 20, 2009). 130. Raul Hernandez, Juror held in contempt for blog of murder trial, Ventura County (Cal.) Daily Star, Jan. 23, 2008, http://www.vcstar.com/news/2008/jan/23/juror-held-in-contempt-for-blog-of-murder-trial.

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Jury Instructions for the Modern Age asked about the research, the juror said that he “‘couldn’t find any definitive information,’” which is what he told other jurors.131 While the appeals court said that this was juror misconduct, it was not sufficient grounds for declaring a mistrial. Here, the only evidence before the trial court was that while Juror No. 63 attempted to find a definition of “great bodily injury” online, he came up with no information. This fact itself tends to rebut the presumption of prejudice because it supports the reasonable conclusion that no actual harm occurred from the search because no information was actually received from an extraneous source as a result of the search.132

Another appellate decision in 2009 affirmed a trial court’s denial of a new trial motion in a murder case, even though a juror was found to have blogged extensively about the case during the trial. One of the posts included information from Wikipedia on the difference between medical examiners and coroners, but the juror/blogger denied that this information affected his opinion of the defendant’s guilt or innocence.133 “Although Juror W. indisputably discussed the case while the matter was pending in violation of the court’s admonition, and thereby committed misconduct,” the appeals court concluded, “none of the discussions were directed at appellant or the substance of the case against him.”134 In February 2011, a trial court judge, after determining that a jury foreman had been posting updates to Facebook during a criminal gang beating trial, ordered the foreman to authorize Facebook to make the postings available to the judge for his review.135 The foreman appealed, and the California Supreme Court vacated the appellate court’s refusal to act on the trial court’s order.136 The case is now fully briefed and pending before the California Court of Appeals.137

131. People v. Hamlin, 170 Cal. App. 4th 1412, 1466 n.17, 89 Cal.Rptr.3d 402, 446 n.17 (2009). 132. Id. at 1466, 89 Cal. Rptr. 3d at 445-46. The court also rejected the defendant’s argument that “[u]nless a computer crashes before the search can go through, it is impossible to conduct an internet search of ‘great bodily injury’ and obtain no results at all,” did not demonstrate that the search had influenced the juror or showed that he was biased. Id. at 1467, 89 Cal. Rptr. 3d at 446. 133. People v. Ortiz, Crim. No. B205674, 2009 WL 3211030, *4 (Cal. App., 2d Dist. 2009) (unreported). 134. Id. at *6. 135. Andy Furillo, Juror ordered to turn over Facebook postings in Sacramento gang beating case, Sacramento (Cal.) Bee, Feb. 6, 2011, http://www.sacbee.com/2011/02/05/3379139/juror-ordered-to-turnover-facebook.html. Facebook had refused to honor the trial court’s subpoena for the posts, which led the judge to consider holding the company in contempt. See Rachel Costello, Court denies juror’s request to keep Facebook post private, News Media Update, Feb. 11, 2011, http://www.rcfp.org/newsitems/ index.php?i=11705; and Andy Furillo, Facebook’s off the hook, but juror posting case could go far, Sacramento (Cal.) Bee, Apr. 2, 2011, http://www.sacbee.com/2011/04/02/3522132/facebook.html. 136. Juror No. 1 v. Super. Ct. of Sacramento County, No. C067309 (Cal. App., 3d Dist. Feb. 10, 2011) (denying petition), vacated, No. S190544 (Cal. Mar. 30, 2011) (vacating the appeals court’s denial of the petition to prohibit the order requiring disclosure, and remanding with directions to issue an order directing the superior court to show cause why the relief sought in the petition should not be granted). The juror also filed a federal lawsuit to stop the disclosure on privacy grounds, but the federal court declined to intervene. See Juror No. 1 v. California, Civil No. 11-397 (E.D. Cal. Feb. 14, 2011) (order denying temporary restraining order). For a complete narrative of these cases, see Pamela MacLean, Jurors Gone Wild, Cal. Lawyer, Apr. 2011, http://www.callawyer.com/story.cfm?eid=914907&evid=1. 137. Juror No. 1 v. Super. Ct. of Sacramento County, No. C067309 (Cal. App., 3d Dist. filed Feb. 8, 2011) (docket showing that case is fully briefed as of May 12, 2011 available at http://appellatecases.courtinfo. ca.gov/search/case/dockets.cfm?dist=3&doc_id=1970078&doc_no=C067309). Reynolds Courts & Media Law Journal

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Colorado – Civil: Modern;  Criminal: Archaic General Instructions In 2010, Colorado’s Jury System Standing Committee adopted an admonition regarding juror use of social media, to be read to all jurors at the start of both civil and criminal trials.138 If you have a cell phone, pager or personal digital assistant, please turn it off while in the courtroom and during jury deliberations. Remember you are not allowed to communicate with anyone via any means about what is happening in the trial for the duration of the proceeding until a verdict is announced in court. During the course of the trial do not conduct independent research, view or listen to media reports, or access any information via the Internet or using any electronic tool, regarding this case, its participants, this type of case, or any related subject matter.139

The courts of Colorado’s 19th District have created a sign furthering this policy, to be posted in jury deliberation rooms. It has also been distributed statewide.140 Jurors are strictly prohibited from communicating any information regarding the trial during the course of jury duty. This prohibition includes all forms of electronic communication including: • cell phones, • e-mail, • text messaging, • tweeting, • blogging, • Internet chat rooms and • communicating about the case by way of any other social networking website, such as Facebook, My Space, LinkedIn, or YouTube. During the course of the trial it is vital that you do not conduct independent research. This prohibition includes researching this case, its participants, the type of case, definitions of words used in the courtroom, or any related subject matter including: • conducting any investigation on your own, • viewing or listening to media reports, • accessing any information via the Internet or any other electronic tool, • visiting any location mentioned in the trial, and • |accessing any books, dictionaries, encyclopedias, or any other reference sources.141

138. E-mail from Karen Salaz, District Administrator, 19th Judicial District, Colorado (July 10, 2011). See also Colo. Jury System Stdg. Comm., Minutes of Feb. 18, 2010 Meeting (2010), at 2 (3d item), available at http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Committees/Jury_System_Standing_Committee/Minutes%20of%202-18-10.pdf; see also Colo. Jury System Stdg. Comm., Minutes of Apr 29, 2010 Meeting (2010), at 2 (3d item), available at http://www. courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Committees/Jury_System_Standing_Committee/Minutes%20of%204-29-10.pdf. 139. Id. 140. Id. 141. Id.

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Civil Instructions Colorado’s civil jury instructions do not address the Internet or social media in their admonition to jurors about trial publicity. Do not discuss this case among yourselves, or with anyone else, or read, view, or listen to any reports about the case in the press, radio, or television, or form or express any opinion on the outcome.142

But the instructions do include the Internet in their admonition against juror research. You are not allowed to look at, read, consult, or use any material of any kind, including any dictionaries or medical, scientific, technical, religious, or law books, the internet, or any material of any type or description in connection with your jury service. You are not allowed to do any research of any kind about this case.143

Criminal Instructions After a major revision in 2008, Colorado’s criminal instructions reference the Internet and new media only obliquely, by referring to “any other media.” Jurors and potential jurors must not discuss the case with themselves or with anyone else until instructed further by the Court. You must not read, view or listen to any reports about the case on radio or television, or in the press or any other media. You should not form or express any opinion about the outcome of this matter until the Court instructs you to begin your deliberations.144

Cases A juror in a drug possession case that ended in a mistrial because of her refusal to vote for conviction was cited and found guilty of contempt, in part for researching the penalty that would have been imposed on the drug defendant had that defendant been found guilty.145 An appeals court reversed, but did not rule on the Internet research question because the trial court had used it as a basis of the contempt finding.146 In 2003, the Colorado Court of Appeals reversed a child abuse conviction in which a juror researched on the Internet and shared with fellow jurors the pharmacological description of the drug Paxil, which the defendant had testified she was taking at the time of the alleged crime.147 “In view of the problems and dangers associated with the unsupervised use of the Internet,” the court said, “trial courts should emphasize that jurors should not consult the Internet, or any other extraneous materials, at any time during the trial, including during deliberations.”148 In affirming the reversal, the Colorado Supreme Court wrote, 142. Colo. Sup. Ct., Comm. on Civ. Jury Inst., Colo. Jury Instr., Civ. [COLJI—Civ.] 1:1 (West 4th ed., updated Apr. 2010). 143. COLJI—Civ. 1.4; see also COLJI—Civ. 1.9 (reiteration in recess instruction) and COLJI—Civ. 4:1A (reiteration at start of deliberations). 144. Colo. Jury Instr. – Criminal. [COLJI—Crim.] (2008), chap. B (Criminal Jury Orientation, Examination and Selection Process), * 4, available at http://www.courts.state.co.us/userfiles/File/Court_ Probation/Supreme_Court/Committees/Criminal_Jury_Instructions/CHAPTER_BJuryOrientation. pdf; see also COLJI—Crim.C:10 (similar language in admonition on juror conduct), available at http:// www.courts.state.co.us/userfiles/File/Court_Probation/Supreme_Court/Committees/Criminal_Jury_ Instructions/CHAPTER_CGeneralInstructions.pdf. 145. The juror insisted that her Internet research did not violate the admonition to “not to speak to anyone about the case” because “obtaining information from the Internet did not violate that instruction because it was not tantamount to ‘speaking to anyone’ about the case.” People v. Kriho, 996 P.2d 158, 170 (Colo. App. 1999). 146. Id. 147. People v. Wadle, 77 P.3d 764 (Colo. App. 2003), aff ’d, 97 P.3d 932 (Colo. 2004). 148. Id. at 771. Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age “it is clear there existed at least a reasonable possibility that the extraneous information to which the jury was exposed influenced the verdict.”149

Connecticut – Civil: Modern;  Criminal: Modern Both the civil and criminal jury instructions in Connecticut—which state judges may use, but are not required to use—admonish jurors not to use the Internet during trial.

Civil Instructions The civil instructions provide: You may not perform any investigations or research or experiments of any kind on your own, either individually or as a group. ... Do not look anything up on the Internet concerning information about the case or any of the people involved, including the parties, the witnesses, the lawyers, or the judge. ... Do not go to the scenes where any of the events that are the subject of this trial took place or use Internet maps or Google Earth or any other program or device to search for or view any place discussed during the case. ... The same thing is true of any media reports you may come across about the case or anybody connected with the case. If you do come across any reports in the newspaper or a magazine, on TV, or any Internet site or “blog,” you may not read or watch them because they may refer to information not introduced here in court or they may contain inaccurate information. ... You may not communicate to anyone any information about the case. This includes communication by any means, such as text messages, email, Internet chat rooms, blogs, and social websites like Facebook, MySpace, YouTube, or Twitter.150

Criminal Instructions

This language is duplicated in the criminal jury instructions.151 The criminal instructions also include clear, concise explanations of the reasons behind the limits on use of social media. In addition, you may not talk to each other about the case until I tell you to do so, and that will not be until you have heard all the evidence, you have heard the closing arguments of the attorneys, and you have heard my instructions on the law that you are to apply to the facts you find to be true. Why is that? It may seem only natural that you would talk about the case as it is going on. The problem with that is, when people start discussing things, they take positions on them and express opinions which are often hard for them to change later on. So, if you were permitted to discuss the case while it’s going on, you might reach conclusions or express opinions before you have heard all the evidence or heard the final arguments of counsel or heard the law that you must apply. Your verdicts in the case might then be improperly influenced by the conclusions or opinions you or your fellow jurors have reached before you knew about all of the evidence or the law that will help you put that evidence in the proper context for your verdicts. What happens if these rules are violated by a juror? In some cases violations of the rules of juror conduct have resulted in hearings after trial at which the jurors have had to testify about their conduct. In some cases the verdict of the jury has been set aside and a new trial ordered because of jury misconduct. So, it is very important that you abide by these rules.152

149. 97 P.3d at 937. 150. State of Conn. Jud. Branch, Conn. Civ. Jury Instr. 1.1-1 (rev. 2009), available at http://www.jud. ct.gov/JI/civil/part1/1.1-1.htm. 151. See State of Conn. Jud. Branch, Conn. Crim. Jury Instr. 1.2-10 (rev. 2009), available at http:// www.jud.ct.gov/JI/Criminal/Part1/1.2-10.htm. 152. Id.

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Delaware – Civil: Archaic;  Criminal: No Instructions Civil Instructions

Except for a statement that “You should consider only the evidence in this case,”153 Delaware’s civil jury instructions contain no admonitions regarding accessing outside information, including information from the Internet.

Criminal Instructions

Delaware does not have a current set of standard criminal jury instructions.154

District of Columbia – Civil: Archaic;  Criminal: Modern Civil Instructions The civil jury instructions for the local District of Columbia courts do not include any admonition that jurors should not discuss cases, although they do include the statement “You may consider only the evidence properly admitted in the case.”155 There is no statement regarding trial publicity, online or off.156

Criminal Instructions The District’s criminal instructions do include an admonition against discussing cases, which specifically mentions the Internet and social media. The criminal instructions also mention trial publicity in both traditional and online media. In some cases, although not necessarily this one, there may be reports in the newspaper or on the radio, internet, or television concerning the case while the trial is going on. If there should be such media coverage in this case, you may be tempted to read, listen to, or watch it. You must not read, listen to, or watch such reports because you must decide this case solely on the evidence presented in this courtroom. If any publicity about this trial inadvertently comes to your attention during trial, do not discuss it with other jurors or anyone else. Just let me or my clerk know as soon after it happens as you can, and I will then briefly discuss it with you. You may not communicate with anyone not on the jury about this case. This includes any electronic communication such as email or text or any blogging about the case. In addition, you may not conduct any independent investigation during deliberations. This means you may not conduct any research in person or electronically via the internet or in another way.157

Florida – Civil: Modern;  Criminal: Modern In 2010, Florida added jury instructions specifically addressing juror use of social media during trials.158 The new instructions include statements to be given to a general juror pool, and before the start of voir dire in civil and criminal trials.

153. Del. Patt Jury Instr., Civ. § 3.2 (2000, rev. 2006), available at http://courts.delaware.gov/Superior/ pattern/patternjury_rev_81506.pdf. 154. It appears that such instructions were last compiled in 1974. See Del. Crim. Code: Pattern Jury Instrs. (1974). 155. D.C. Std. Civ. Jury Instrs., at 6, available at http://www.dcd.uscourts.gov/dcd/sites/dcd/files/Standard-JMF.pdf. 156. Id. 157. D.C. Crim. Jury Instr. 1.202, in Richard W. Stevens, ed., Crim. Jury Instrs. for the District of Columbia (5th ed. 2002, rev. 2010). 158. In Re: Standard Jury Instructions In Criminal Cases – Report No. 2010-01; and Standard Jury Instructions In Civil Cases – Report No. 2010-01, No. SC10-51 (Fla. 2010), available at http://www.floridasupremecourt.org/decisions/2010/sc10-51.pdf (amending criminal and civil jury instructions). Reynolds Courts & Media Law Journal

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Civil Instructions The additions to Floridaâ&#x20AC;&#x2122;s civil instructions include a Qualifications Instruction that outlines the restrictions on use of electronic devices to potential jurors. Many of you have cell phones, computers, and other electronic devices. Even though you have not yet been selected as a juror, there are some strict rules that you must follow about using your cell phones, electronic devices and computers. You must not use any device to search the Internet or to find out anything related to any cases in the courthouse. Between now and when you have been discharged from jury duty by the judge, you must not provide or receive any information about your jury service to anyone, including friends, co-workers, and family members. You may tell those who need to know where you are that you have been called for jury duty. If you are picked for a jury, you may tell people that you have been picked for a jury and how long the case may take. However, you must not give anyone any information about the case itself or the people involved in the case. You must also warn people not to try to say anything to you or write to you about your jury service or the case. This includes face-to-face, phone or computer communications. In this age of electronic communication, I want to stress that you must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, about your jury service. You must not disclose your thoughts about your jury service or ask for advice on how to decide any case. After you are called to the courtroom, the judge will give you specific instructions about these matters. A judge will tell you when you are released from this instruction. All of us are depending on you to follow these rules, so that there will be a fair and lawful resolution of every case.159

The civil instructions also include an instruction reminding jurors to not use the Internet and social media when the trial participants are introduced at the start of voir dire. In order to have a fair and lawful trial, there are rules that all jurors must follow. A basic rule is that jurors must decide the case only on the evidence presented in the courtroom. You must not communicate with anyone, including friends and family members, about this case, the people and places involved, or your jury service. You must not disclose your thoughts about this case or ask for advice on how to decide this case. I want to stress that this rule means you must not use electronic devices or computers to communicate about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages to or from anyone about this case or your jury service. You must not do any research or look up words, names, [maps], or anything else that may have anything to do with this case. This includes reading newspapers, watching television or using a computer, cell phone, the Internet, any electronic device, or any other means at all, to get information related to this case or the people and places involved in this case. This applies whether you are in the courthouse, at home, or anywhere else. All of us are depending on you to follow these rules, so that there will be a fair and lawful resolution to this case. Unlike questions that you may be allowed to ask in court, which will be answered in court in the presence of the judge and the parties, if you investigate, research or make inquiries on your own outside of the courtroom, the trial judge has no way to assure they are proper and relevant to the case. The parties likewise have no opportunity to dispute the accuracy of what you find or to provide rebuttal evidence to it. That is contrary to our judicial system, which assures every party the right to

159. See Fla. Std. Jury Instr., Civil, § 200, Qualifications Instruction (2010), available at http://www. floridasupremecourt.org/civ_jury_instructions/2010/200/qualification.rtf.

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Jury Instructions for the Modern Age ask questions about and rebut the evidence being considered against it and to present argument with respect to that evidence. Non-court inquiries and investigations unfairly and improperly prevent the parties from having that opportunity our judicial system promises. If you become aware of any violation of these instructions or any other instruction I give in this case, you must tell me by giving a note to the bailiff.160

The point is reiterated when explaining trial procedure following jury selection,161 and prior to deliberations.162

Criminal Instructions The additions to the criminal instructions mirror the additions to the civil instructions, including an instruction to the general jury pool before assignment to a particular case that uses the same language as the general qualifications instruction in the civil instructions;163 and a reiteration once a venire has been assigned to a particular case.164 The warning against use of electronic devices is also included in the instruction for the start of criminal trials: â&#x20AC;Ś The case must be tried by you only on the evidence presented during the trial in your presence and in the presence of the defendant, the attorneys and the judge. Jurors must not conduct any investigation of their own. This includes reading newspapers, watching television or using a computer, cell phone, the Internet, any electronic device, or any other means at all, to get information related to this case or the people and places involved in this case. This applies whether you are in the courthouse, at home, or anywhere else. You must not visit places mentioned in the trial or use the Internet to look at maps or pictures to see any place discussed during the trial. Jurors must not have discussions of any sort with friends or family members about the case or the people and places involved. So, do not let even the closest family members make comments to you or ask questions about the trial. In this age of electronic communication, I want to stress again that just as you must not talk about this case face-to-face, you must not talk about this case by using an electronic device. You must not use phones, computers or other electronic devices to communicate. Do not send or accept any messages related to this case or your jury service. Do not discuss this case or ask for advice by any means at all, including posting information on an Internet website, chat room or blog. 165

There is a similar admonition in the instruction when the case is submitted to the jury.166 A note repeated for each of these instructions states that the description of electronic communications devices may need to be modified as new technology develops.167

160. See Fla. Std. Jury Instr., Civil, Instr. 201.2 (2010), available at http://www.floridasupremecourt. org/civ_jury_instructions/2010/200/201(2).rtf. 161. See Fla. Std. Jury Instr., Civil, Instr. 202.2 (2010), available at http://www.floridasupremecourt. org/civ_jury_instructions/2010/200/202(2).rtf. 162. See Fla. Std. Jury Instr., Civil, § 700, Closing Instructions (2010), available at http://www.floridasupremecourt.org/civ_jury_instructions/2010/700/700.rtf. 163. Fla. Std. Jury Instr., Qualifications Instruction (2010), available at http://www.floridasupremecourt.org/jury_instructions/chapters/chapter1/QualificationsInstruction.rtf. 164. Fla. Std. Jury Instr., Crim. 1.1 (2010), available at http://www.floridasupremecourt.org/jury_instructions/chapters/chapter1/p1c1s1.1.rtf. 165. Fla. Std. Jury Instr., Crim., 2.1 (2010), available at http://www.floridasupremecourt.org/jury_instructions/chapters/chapter2/p1c2s2.1.rtf. 166. See Fla. Std. Jury Instr., Crim. 3.13 (2010), available at http://www.floridasupremecourt.org/jury_ instructions/chapters/chapter3/p1c3s3.13.rtf. 167. See, e.g., Fla. Std. Jury Instr., Crim., Qualifications Instruction (2010), Note on Use, available at http:// www.floridasupremecourt.org/jury_instructions/chapters/chapter1/QualificationsInstruction.rtf. Reynolds Courts & Media Law Journal

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Other In addition to the revisions to the jury instructions, in 2010 the Florida Bar’s Judicial Administration Rules Committee proposed a new rule on use of electronic devices in courtrooms. In addition to placing strict limits on use of these devices by jurors, the original draft of the proposed rule would have given judges and quasi-judicial officials broad authority to control use of these devices in the courthouse, including the ability to confiscate devices during judicial proceedings and to order the erasure of audio or visual recordings.168 Professional journalists were specifically exempt.169 After receiving comments regarding the proposed rule – mostly negative170 – the committee released a new proposal, which is limited to controlling jurors’ use of electronic devices. The revised proposal bars jurors from using these devices to record or transmit audio or video of court proceedings and transmit or receive text, data or information about the case or during proceedings.171 The rule also requires confiscation of the devices from jurors during deliberations, and allows it beforehand, but requires the devices be returned during recesses unless a jury is sequestered, in which case the presiding judge decides whether to return the devices during breaks.172

Cases In September 2010, a Florida appeals court ordered a new trial in a manslaughter conviction where the jury foreman searched online for the definition of “prudent”—used in the jury instructions—during a break in deliberations and shared the definition with other jurors.173 “Although here we confront new frontiers in technology, that being the instant access to a dictionary by a smartphone, the conduct complained of by the appellant is not at all novel or unusual,” the appeals court wrote in its opinion. “It has been a longstanding rule of law that jurors should not consider external information outside of the presence of the defendant, the state, and the trial court.”174

Georgia – Civil: Archaic;  Criminal: Archaic In March 2010, the Atlanta Journal-Constitution reported that the Council of Superior Court Judges of Georgia was drafting jury instructions that would prohibit communication about cases online, and discourage jurors from doing independent online research.175 While the revised instructions were scheduled to be adopted in July 2010,176 it appears that no action was taken on the proposals.177

168. Jennifer A. Mansfield, Criticism Submitted to Florida Bar on Proposed Regulation of Electronic Devices in Courtrooms, Media Law Letter, Feb. 2010, at 28. 169. Id. 170. Id. 171. Fla. Bar Jud. Admin. R. Comm,, Proposed Rule 2.451(b)(3), available at https://flabar.org/TFB/TFBResources.nsf/Attachments/3316CFA89D374EF385257802006552D2/$FILE/Final%20Rule%20 2.451%20for%20E-vote%20with%20proof%20corrections.pdf. 172. Fla. Bar Jud. Admin. R. Comm,, Proposed Rule 2.451(b)(1)-(2), id. 173. Tapanes v. State, 43 So.3d 159 (Fla. App., 4th Dist. 2010). 174. Id. at 163. 175. Andria Simmons, Georgia courts to bar jurors from Internet, Atlanta J.-Const., Mar. 30, 2010, http:// www.ajc.com/news/georgia-courts-to-bar-420308.html. 176. Id. 177. These changes are not among those listed from the Council’s rules change announcements from March and August 2010, and the Georgia Suggested Pattern Jury Instructions available on Westlaw, current through July 2010, contain no such language.

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Civil Instructions Georgia’s existing pattern jury instruction for civil cases refers to “books,” “documents,” and the “news media” without further explanation. You may not visit any scenes depicted by the evidence. You may not utilize any books or documents not in evidence during your deliberations. You may not read or listen to any accounts of the trial that might appear in the news media. You may not discuss this case with anyone other than your fellow jurors during deliberations.178

Criminal Instructions

The existing criminal instructions repeat the same language from the civil instructions. 179

Cases In February 2010, a Fulton county judge declared a mistrial and fined a juror $500 for doing online research during a rape case.180 In 2005, a Georgia appeals court held that a trial court was not required to declare a mistrial after a juror used MapQuest to research the distance between two locations that played a role in a child molestation trial and shared that information with fellow jurors, because the information was not dispositive to the jury’s guilty verdict.181

Hawaii – Civil: Archaic;  Criminal: Modern Criminal Instructions In 2009, the Hawaii Supreme Court amended its standard criminal jury instructions to specifically address juror use of the Internet and social media. The criminal instructions now include the following language in the preliminary instruction after a jury is selected and seated: You must not investigate the case in any way. This means that you must not visit any places mentioned during this trial, conduct experiments, consult any dictionaries, encyclopedias, web sites or other reference materials. Also, do not read, listen to, or watch anything about this case from any source, such as a television or radio broadcast, newspaper article or internet transmission. Your decision must be based only on the evidence you receive in this courtroom and the court’s instructions on the law.182

The admonition for recesses is more explicit: 1. Do not talk to anyone, including your fellow jurors, friends or members of your family about anything having to do with this trial, except to speak to court staff. This means that you must not discuss this case with anyone until the verdict is received or you are excused from jury service. No discussion also means no e-mailing, text messaging, tweeting, blogging or any other form of communication. … 6. Because of the requirement that your verdict must be based only on the evidence received in the courtroom and instructions on the law, you must not read, listen to or watch any news reports about this trial, if there are any, regardless of whether the report is from the newspaper, radio, television, internet or any other source. 178. Ga. Jury Instr., Civil [GA-JICIV] 00.100 (2010). 179. Ga. Jury Instr., Crim. [GA-JICRIM] 0.01.00 (2010). 180. Id. 181. Brown v. State, 275 Ga. App. 281, 284 620 S.E.2d 394, 398 (Ga. App. 2005) (“Of the jurors who actually recalled receiving the information, all of them testified that they were unaffected by the information.”). 182. Haw. Pattern Jury Instr., Crim., No. 1-01 (2010). Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age 7. Do not research this case on your own or as a group by using a dictionary, encyclopedia, map, or reference materials, including online or other electronic sources. You are not permitted to search the Internet, for example, using Google, or any other search engine or web site to look for information about this case or about the participants in the trial. The participants in a trial include the judge, lawyers, witnesses and the defendant. The Court understands that in your daily life it may be a common occurrence for you to look for more information about a product or an event, but the moment you try to gather information about this case or the participants, is the moment you contaminate the process you promised to uphold. 8. Do not share information, opinions, or anything else about this case with others, personally or in writing, or through computers, cell phone messaging, personal electronic and media devices or other forms of wireless communications. This includes, for example, communicating about this case through e-mail, instant messaging, tweeting, text messaging, or using the Internet in any way. Also, do not post or look at information about this case on a blog, forum, social network site, chat room, discussion board or any other web site. 9. If you have a cell phone or other electronic device, keep it turned off while you are in the courtroom. Turned off means that the phone or other device is actually off and not in a silent or vibrating mode. After each recess, please double check to make sure your device is turned off. If someone needs to contact you in an emergency, the court can receive messages and deliver them to you without delay. The court’s phone number will be provided to you.183

But the pattern instruction for the end of criminal trials, regarding conduct of deliberations, admonishes jurors only to avoid discussions and “news accounts” about the case, without mentioning the Internet or social media at all.184

Civil Instructions Hawaii’s civil instructions have not been similarly amended to mention Internet and social media. For example, the pretrial admonition against independent investigation or research states that jurors must not “visit the scene on your own, conduct experiments, or consult dictionaries, encyclopedias, textbooks, or other reference materials for additional information,” but does mention the Internet or social media.185

Idaho – Civil: Archaic;  Criminal: Modern Civil Instructions Idaho’s civil instructions include a general admonition not to consult outside sources or conduct independent investigations or research, but do not mention the Internet or social media.186 The comment to this admonition, however, advises that “[i]t is perhaps preferable to use the elements of this instruction as a guide for a more informal explanation to the jury of the necessary conduct expected of them, including reasons and examples as appropriate.”187

Criminal Instructions Idaho’s criminal instruction for recesses during voir dire and during trial is much more detailed, and mentions various social media activities: 183. Hawaii Pattern Jury Instr., Crim., No. 2-01 (2010). See In re Publication and Distribution of the Hawai’i Pattern Jury Instrs. (Haw. 2009) (revising Crim. Instr. No. 2-01, et. al.), available at http:// www.courts.state.hi.us/docs/legal_references/jury_instruct6.pdf. 184. See Hawaii Pattern Jury Instr., Crim., No. 8.03 (2010). 185. See, e.g., Hawaii Pattern Jury Instr., Civ., No. 2.4 (2010). 186. See Idaho Civ. Jury Instr. [IDJI] 1.03 (2010). Idaho’s civil jury instructions are available at http:// www.isc.idaho.gov/rules/cv_juryinst.pdf. 187. Id., Comment.

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Jury Instructions for the Modern Age During the course of this trial, [including the jury selection process,] you are instructed that you are not to discuss this case among yourselves or with anyone else, including any use of email, text messaging, tweeting, blogging, electronic bulletin boards, or any other form of communication, electronic or otherwise. Do not conduct any personal investigation or look up any information from any source, including the Internet. Do not form an opinion as to the merits of the case until after the case has been submitted to you for your determination.188

The instruction regarding juror conduct goes into more detail, and explains the rationale behind the restrictions. Do not discuss this case during the trial with anyone, including any of the attorneys, parties, witnesses, your friends, or members of your family. “No discussion” also means no emailing, text messaging, tweeting, blogging, posting to electronic bulletin boards, and any other form of communication, electronic or otherwise. *** Do not make any independent personal investigations into any facts or locations connected with this case. Do not look up any information from any source, including the Internet. *** Do not read or listen to any news reports about this case or about anyone involved in this case, whether those reports are in newspapers or the Internet, or on radio or television. In our daily lives we may be used to looking for information on-line and to “Google” something as a matter of routine. Also, in a trial it can be very tempting for jurors to do their own research to make sure they are making the correct decision. You must resist that temptation for our system of justice to work as it should. I specifically instruct that you must decide the case only on the evidence received here in court. If you communicate with anyone about the case or do outside research during the trial it could cause us to have to start the trial over with new jurors and you could be held in contempt of court. While you are actually deliberating in the jury room, the bailiff will confiscate all cell phones and other means of electronic communications. Should you need to communicate with me or anyone else during the deliberations, please notify the bailiff.189

Other The state’s Handbook for Jurors is also archaic, telling jurors that they “may not discuss the case with anyone during the course of the trial,”190 and, under the heading “News, Television, and Radio Reports,” that they “are not allowed to read, watch, or listen to media stories relating to the trial to which they are assigned.”191

Illinois – Civil: Modern;  Criminal: Archaic Civil Instructions Illinois’ civil instructions were revised in 2009 to specifically address the Internet in the general cautionary instruction: [6] The use of cell phones, text messaging, Internet postings and Internet access devices in connection with your duties violates the rules of evidence and you are prohibited from using them. 188. Idaho Crim. Jury Instr. [ICJI] 002 (2010). Idaho’s criminal jury instructions are available at http:// www.isc.idaho.gov/idaho_courts_e.htm. 189. ICJI 108 (2010). 190. Idaho Sup. Ct. Jury Comm., Idaho Supreme Court Handbook For Jurors (n.d.), at 7, available at http://www.isc.idaho.gov/jurybook.pdf. 191. Id. Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age [7] You should not do any independent investigation or research on any subject relating to the case. What you may have seen or heard outside the courtroom is not evidence. This includes any press, radio, or television programs and it also includes any information available on the Internet. Such programs, reports and information are not evidence and your verdict must not be influenced in any way by such material.192

While the instructions themselves do not supply a rationale for these directives, a comment to point six does provide an explanation: The practice of instructing jurors not to discuss the case until deliberation is widespread. The use of Web search engines, wireless handheld devices, and Internet-connected multimedia smartphones by jurors in any given case has the potential to cause a mistrial. It is critical to the administration of justice that these electronic devices not play any role in the decision making process of jurors.193

The Illinois Supreme Court’s committee on civil jury instructions is reportedly looking into strengthening these instructions to cover social media.194 It has already released a preliminary instruction, based on the federal U.S. Judicial Conference version.195

Criminal Instructions The state’s criminal instructions have not been updated. While Illinois has criminal instructions admonishing jurors “not to converse with anyone on any subject connected with this case;” “not read or listen to any outside comments or news accounts of this case;” and “not view or go to the place where the offense was allegedly committed,”196 the instructions do not mention the Internet or social media.

Other The Illinois courts have published A Handbook for Illinois Jurors: Petit Jury, which explains the court system and the role and responsibilities of jurors. The handbook includes a section admonishing jurors not to discuss or do independent research about a case, although it does not mention the Internet or social media. Jury Conduct During Trial Don’t Make An Independent Investigation Jurors are expected to use the experience, common sense, and common knowledge they possess, but are not to rely upon private sources of information.  It follows, therefore, that you should never inspect the scene of any occurrence involved in the case except under supervision of the Court. Don’t Talk To Participants During Trial Do not talk to any of the parties, witnesses, or the attorneys about anything.  It may be what you say to a trial participant is a simple “good morning” or some remark about the weather, but your conversation may be misinterpreted by someone who may see you talking but cannot hear what is being said.  To avoid misunderstandings, therefore, say nothing.

192. Ill. Pattern Instr. – Civ. 1.01 (2010). 193. Ill. Pattern Instr. – Civ. 1.01[6], Comment (2010). 194. See Jasmine Villaflor Hernandez & Jessica LeeAnn Cummings, Loose-Lipped Lawyers in the Facebook Age: What Courts Can Do About Unauthorized Electronic Communication, 99 Ill. B.J. 344, 346 (2011). 195. Id. See also U.S. Jud. Conf., Comm. on Ct. Admin. & Case Mgmt., Proposed Model Jury Instrs., supra note 29. 196. Ill. Pattern Jury Instr. – Crim. 26.08 (4th ed. 2009) (admonishment during trial); Ill. Pattern Jury Instr. – Crim. 26.09 (4th ed. 2009) (admonition for recesses).

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Jury Instructions for the Modern Age Don’t Discuss The Case During Trial Jurors are not to discuss the case among themselves until they have heard all of the evidence, the arguments of the attorneys, and the Court’s instructions.  After this you will go to the jury room to discuss the case and reach your verdict.  You may, of course, converse with your fellow jurors about anything not connected with the case when the Court is not in session. During the trial you must not discuss the case with your family, friends or others.  The reason for this is plain.  You must base your verdict only upon evidence.  The opinions or comments that friends, relatives, or other outsiders may offer are not proper evidence in the case.  So, if you are asked to discuss the case by persons outside the courtroom, you should simply say that the law does not permit you to do so.  If anyone persists in discussing the case or tries to influence you in any manner, it is your legal duty to report this to the judge immediately.  YOU SHOULD AVOID NEWSPAPERS OR RADIO AND TELEVISION BROADCASTS which may feature accounts of the trial or information about someone’s participation in it.  These may be one-sided or incomplete and are not evidence. After you have been released from all service as a juror you may, but are not required to, discuss the case with lawyers, investigators or other persons.  It is not proper for an attorney or his or her representative to make inquiry of you until such time as you have been finally excused.  If you prefer not to discuss the case, you should so state to the person inquiring.197

Indiana – Civil: Modern;  Criminal: Modern Civil Instructions Indiana Model Civil Jury Instructions discuss the use of the Internet and social media in detail, and give a lengthy explanation of why their use is prohibited. * * * Your decision must be based only on the evidence presented during this trial and my instructions on the law. Therefore, from now until the trial ends, you must not: Conduct research on your own or as a group, Use dictionaries, the Internet, or any other resource to gather any information about the issues in this case, Investigate the case, conduct any experiments, or attempt to gain any specialized knowledge about the case, or Receive assistance in deciding the case from any outside source. You also must not: Use laptops or cell phones in the courtroom or in the jury room while discussing the case, Consume any alcohol or drugs that could affect your ability to hear and understand the evidence, Read, watch, or listen to anything about this trial from any source whatsoever, including newspapers, radio, television, or the Internet, Listen to discussions among, or receive information from, other people about this trial, or Visit or view the scene of any event involved in this case. If you happen to pass by the scene, do not stop or investigate. Finally, you must not: Talk to any of the parties, their lawyers, any of the witnesses, or members of the media. If anyone tries to talk to you about this case, you must tell the bailiff or me immediately. You may discuss the evidence with your fellow jurors during the trial, but only in the jury room, and only when all of you are present. Even though you are permitted to have these discussions, you must not make a decision about the outcome of this case until your final deliberations begin. Until you reach a verdict, do not communicate about this case or your deliberations with anyone else.

197. Admin. Office of Ill. Cts., A Handbook for Illinois Jurors: Petit Jury (2009) (emphasis in original), available at http://www.state.il.us/court/circuitcourt/Jury/Jury.pdf. Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age In this age of instant electronic communication and research, I want to emphasize that in addition to not talking face to face with anyone else about the case, you must not communicate with anyone or post information about the case, or what you are doing in the case, by any means, including telephone, text messages, email, internet chat rooms, blogs, or social websites, such as Facebook, MySpace, or Twitter. You also must not Google or otherwise search for any information about the case, or the law that applies to the case, or the people involved in the case, including the parties, witnesses, lawyers, or Judge. During the trial, you may tell people who need to know that you are a juror, and you may give them information about when you will be required to be in court. But you must not talk with them or others about anything else related to the case. After your service on this jury is concluded, you are free to talk with anyone about the case or do whatever research you wish. I want you to understand why these rules are important. Our law does not permit jurors to talk about the case with anyone except fellow jurors. The law also does not permit jurors to allow anyone to talk to them about the case. The reason for this is that only jurors are authorized to render a verdict. Only you have been found to be fair, and only you have promised to be fair â&#x20AC;&#x201C; no one else has been so qualified. Our law does not permit you to visit a place discussed in the testimony because you cannot be sure that the place is in the same condition as it was on the day in question. Also, even if it were in the same condition, once you go to a place to evaluate evidence in light of what you see there, you become a witness, not a juror. As a witness, you may now have an erroneous view of the scene that may not be subject to correction by either party. That is not fair. Finally, our law requires that you not read or listen to any news accounts of the case, and that you not attempt to research any fact, law, or person related to the case. Your decision must be based solely on the testimony and other evidence presented in this courtroom. It would not be fair for you to base your decision on some reporterâ&#x20AC;&#x2122;s view or opinion, or upon information that you acquire outside the courtroom from a source that cannot be challenged or cross-examined by the parties. These rules are designed to help guarantee a fair trial, and our law accordingly provides for serious consequences if the rules are not followed. I trust that you understand and appreciate the importance of following these rules and, in accord with your oath and promise, I know that you will do so.198

Criminal Instructions Indianaâ&#x20AC;&#x2122;s Pattern Jury Instructions for criminal trials use different language, but make the same admonition and include a similar explanation of the reasoning behind these restrictions. You have been selected as jurors and you are bound by your oath to try this case fairly and honestly. You are permitted to discuss the evidence among yourselves in the jury room during recesses from trial but only when all jurors and alternates are present. You must not talk or communicate about this case with anyone else. You should keep an open mind. You should not form or express any conclusion or judgment about the outcome of the case until the Court submits the case to you for your deliberations. You must focus your attention on the court proceedings and reach a verdict solely upon what you see and hear in this court. As jurors, you must not do any independent investigation about the case and you must not be influenced in any way by information, opinions, or publicity outside the courtroom. Until you have returned your verdict in court and I have released you from your service, do not talk to any of the parties, their lawyers, any witnesses, or members of the media. If anyone tries to talk about the case in your presence, you should tell the bailiff immediately and privately. During your 198. Ind. Model Civ. Jury Instrs. 101 (2011).

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Jury Instructions for the Modern Age attendance in the courtroom, during any discussions about the case in the jury room, or during deliberations in the jury room, you shall not use any computers, laptops, cellular telephones, or other electronic communication devices unless specifically authorized by the court. During the trial, there will be periods of time when you will be allowed to separate, such as for recesses, lunch periods, and overnight. At those times, you must not use computers, laptops, cellular telephones, or other electronic communication devices or any other method to: investigate, conduct research, or otherwise gather information regarding the case; conduct experiments or attempt to gain any specialized knowledge about the case; receive assistance in deciding the case from any outside sources; read, watch, or listen to anything about the case from any source; listen to discussions among or receive information from other people about the case; or communicate with any of the parties, their lawyers, any of the witnesses, members of the media, or anyone else about the case, including by posting information, text messaging, e-mailing, or participating in Internet chat rooms, blogs, or social websites which could contain information about the case. You also must not visit or view the scene of any event involved in this case. If you happen to pass by the scene, do not stop or investigate. You must also not consume any alcohol or drugs that could affect your ability to hear and understand the evidence. The reason for these restrictions is to ensure that your decision is based only on the evidence presented during this trial and the Courtâ&#x20AC;&#x2122;s instructions on the law. (Short form admonishment at every recess:) During the recess, you may discuss the case among yourselves only while you are all together in the jury room. Do not discuss the case under any other circumstance. You must not form or express any opinion or conclusion about the outcome of the case until it is finally submitted to you for your deliberations. (Long form admonishment at the conclusion of each day of trial:) During the overnight recess, do not discuss the case under any circumstance. You must not form or express any opinion or conclusion about the outcome of the case until it is finally submitted to you for your deliberations. During the recess, you must not use computers, laptops, cellular telephones, or other electronic communication devices or any other method to: investigate, conduct research, or otherwise gather information regarding the case; conduct experiments or attempt to gain any specialized knowledge about the case; receive assistance in deciding the case from any outside sources; read, watch, or listen to anything about the case from any source; listen to discussions among or receive information from other people about the case; or communicate with any of the parties, their lawyers, any of the witnesses, members of the media, or anyone else about the case, including by posting information, text messaging, e-mailing, or participating in Internet chat rooms, blogs, or social websites which could contain information about the case.199

In addition to the changes to the jury instructions, Indianaâ&#x20AC;&#x2122;s jury rules were amended, effective July 1, 2010, to ban juror use of all electronic communications devices. The court shall instruct the jurors before opening statements that until their jury service is complete, they shall not use computers, laptops, cellular telephones, or other electronic communication devices while in attendance at trial, during discussions, or during deliberations, unless specifically authorized by the court. In addition, jurors shall be instructed that when they are not in court they shall not use computers, laptops, cellular telephones, other electronic communication devices, or any other method to: 199. Ind. Patt. Jury Instrs., Crim., Instr. 1.01 (2011). Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age (1) conduct research on their own or as a group regarding the case; (2) gather information about issues in the case; (3) investigate the case, conduct experiments, or attempt to gain any specialized knowledge about the case; (4) receive assistance in deciding the case from any outside source; (5) read, watch, or listen to anything about the case from any source; (6) listen to discussions among, or received information from, other people about the case; or (7) talk to any of the parties, their lawyers, any of the witnesses, or members of the media, or anyone else about the case, including posting information, text messaging, email, Internet chat rooms, blogs, or social websites.200

The new rules also provide for the court to collect electronic devices from jurors during deliberations: The court shall instruct the bailiff to collect and store all computers, cell phones or other electronic communication devices from jurors upon commencing deliberations. The court may authorize appropriate communications (i.e. arranging for transportation, childcare, etc.) that are not related to the case and may require such communications to be monitored by the bailiff. Such devices shall be returned upon completion of deliberations or when the court permits separation during deliberations. Courts that prohibit such devices in the courthouse are not required to provide this instruction. All courts shall still admonish jurors regarding the limitations associated with the use of such devices if jurors are permitted to separate during deliberations.201

Cases The Indiana Supreme Court adopted the new rules after it considered a case in which a juror took a cell phone call during deliberations. While the court denied a new trial in the case, it recognized the problem that jurors’ use of electronic devices poses, and recommended that trial courts act to limit or prohibit use of such devices during trial. [The plaintiff, who lost at trial] presented her claim of error due to the juror’s cell phone use in her motion to correct error. It was denied by the trial court, which concluded that “[n] othing about these events comprise[s] misconduct in any form.” On appeal, Ms. Henri has not established that the alleged receipt of a cell phone call with the apparent approval of the bailiff constituted misconduct, and has shown neither gross misconduct nor probable harm. Reversal and a new trial are not warranted on this issue. We additionally observe that permitting jurors, other trial participants, and observers to retain or access mobile telephones or other electronic communication devices, while undoubtedly often helpful and convenient, is fraught with significant potential problems impacting the fair administration of justice. These include the disclosure of confidential proceedings or deliberations; a juror’s receiving improper information or otherwise being influenced; and a witness’s or juror’s distraction or preoccupation with family, employment, school, or business concerns. These and other detrimental factors are magnified due to swift advances in technology that may enable a cell phone user to engage in text messaging, social networking, web access, voice recording, and photo and video camera capabilities, among others. The best practice is for trial courts to discourage, restrict, prohibit, or prevent access to mobile electronic communication devices by all persons except officers of the court during all trial proceedings, and particularly by jurors during jury deliberation.202

200. Ind. Jury R. 20(b) (2010), available at http://www.in.gov/judiciary/rules/jury/#_Toc243295750. 201. Ind. Jury R. 26(b) (2010), available at http://www.in.gov/judiciary/rules/jury/#_Toc243295756. 202. Henri v. Curto, 908 N.E.2d 196, 202-03 (Ind. June 17, 2009) (vacating 891 N.E.2d 135 [Ind. App. 2008]).

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Iowa – Civil: Archaic;  Criminal: Archaic Civil Instructions Iowa’s civil jury instructions were last revised in 2004, and do not address use of the Internet or social media, or even juror exposure to traditional media. They include only general statements that The following are not evidence: … 4. Anything you saw or heard about this case outside the courtroom.203

Criminal Instructions Like the civil instructions, Iowa’s criminal jury instructions have not been revised since 2004. The only statement regarding extrinsic evidence is the same as the civil instructions.204

Kansas – Civil: Archaic;  Criminal: Modern Civil Instructions The civil instructions in Kansas do not mention any social media or Internet sites by name. But they do give some of the rationales for the restrictions on jurors’ communications and activities. There are a few general rules of conduct with which all members of the jury panel should be familiar. (a) Keep an open and attentive mind throughout the trial. Do not make up your mind or attempt to reach a decision until the conclusion of the entire case and its submission to you for deliberation. Before that time do not discuss the case among yourselves. At no time discuss the case with anyone else or permit others to discuss it in your presence. As an additional precaution, do not converse with the attorneys, parties, or witnesses during the trial. Should anyone attempt to discuss the case with you, report the incident to the bailiff. (b) To keep an open mind, do not listen to or read news accounts of the trial proceedings. Often such accounts are based upon incomplete information and give a distorted view of the case. (c) Do not inspect any particular place or thing in controversy unless so directed by the Court. The scene or thing may have changed. You are to reach your verdict from the evidence and testimony presented in Court.205

Criminal Instructions The state’s criminal pattern jury instructions, meanwhile, have been revised to specifically mention a number of social Internet sites and services. As jurors chosen to try this case, you must base your decision only on the evidence presented here in open court during this trial and my instructions on the law. Therefore, from now until I dismiss you from jury service you must not: • Conduct any research on your own or with anyone else about the issues of this case. • Use dictionaries, the internet, any book or any other source to look up an information about the issues of this case. • Investigate the issues, conduct experiments, or try to gain any specialized knowledge about the case. • Receive help from any outside source in deciding the case. • Listen to discussions among other people about this case or receive any information from them. 203. Iowa Civ. Jury Instr. 100.4 (2004), available at www.lb8.uscourts.gov/researchdirectory/.../iowacrim-jury-instr.doc. 204. Iowa Crim. Jury Instr. 100.5 (2004), available at www.lb8.uscourts.gov/researchdirectory/.../iowaciv-jury-instr.doc. 205. Pattern Instr. Kan. 4th, Civ. 101.10 (4th ed. 2008). Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age • Visit or view the scene of any event involved in this case. If you happen to pass by the scene, do not stop or examine it. • Talk to the parties, their lawyers, any of the witnesses, or members of the media about this case. • Listen to, read or view any media coverage of the trial. I caution you not to talk with anyone about this case nor tell by any method of communication what you are doing as a juror. I mean face-to-face conversations, as well as electronic communications including e-mails and posting comments on internet chat rooms, blogs, or any social networking website such as Facebook, MySpace, or Twitter. Also, you must not use Google or some similar search engine to do research about the issues of the case, the law, the parties, the witnesses, the lawyers, or the judge. Our courts have made these rules to assure fair trials. If you do learn something about the case from a source outside the trial, do not tell any such information to the other jurors. Tell the bailiff as soon as possible, so I can be told about that fact and take any necessary action.206

Cases The Kansas Court of Appeals recently affirmed a trial court’s denial of a mistrial based on juror misconduct, after a juror appeared to be sending text messages from the jury box during a trial that ended in a conviction for aggravated burglary and attempted aggravated robbery. The trial judge did not question the juror, and denied the motion, because no one had actually observed the juror texting, although the bailiff had seen the juror texting during jury selection.207 The appeals court held that while “it may have been the better practice for the trial court to have made the inquiries, we are unable to conclude that no reasonable person would take the view adopted by the district court.”208 Thus, the appeals court concluded, “[t]he trial court did not abuse its discretion in denying [the defendant’s] motion for a mistrial on the basis of juror misconduct.”209 The court then recommended that courts in Kansas adopt jury rules like those in Indiana, which ban electronic devices,210 and that the state’s jury instructions should specifically mention various forms of modern electronic communications, as was done in New York.211 206. Pattern Inst., Kan. 3d, Crim. 51.01-B (2009). 207. As related by the appeals court, Defense counsel stated that he observed the juror slumped down in her seat below the rail in front of the jury box, but that he did not know what she was doing. He said he moved for a mistrial “grudgingly, because [he] favored this jury” and that he was “satisfied with the other jurors,” who had “been attentive and participated fully in the case. The prosecutor stated that she did not notice the juror texting, but that she did not look at the jury during trial. She added, “So I don’t know if you want to bring her out here and ask her or what.” The judge noted that his bailiff had advised him that juror number one was texting during jury selection, and that he had noticed the juror’s hands were below the rail and that her focus was down towards her lap during the first day of the trial, although the judge could not see if the juror was text messaging. State v. Mitchell, --- P.3d ----, 2011 WL 1330804, at *2-*3 (Kan. Ct. App. Apr. 8, 2011). 208. Id., 2011 WL 1330804, at *4. 209. Id. 210. Id. See also Ind. Jury R. 20(b) (2010), available at http://www.in.gov/judiciary/rules/jury/#_ Toc243295750 (banning juror use of all electronic communications devices); and Ind. Jury R. 26(b) (2010), available at http://www.in.gov/judiciary/rules/jury/#_Toc243295756 (providing for the court to collect electronic devices from jurors during deliberations). 211. Id. The court referred to the “the general instruction on juror communication,” but did not otherwise specify which Kansas instruction should be amended. Presumably the court was referring to Pattern

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Kentucky – Civil: Archaic;  Criminal: Archaic Unlike other states, which often seek specificity in their jury instructions, “[Kentucky’s] approach to [jury] instructions is that they should provide only the bare bones, which can be fleshed out by counsel in their closing arguments if they so desire.”212 The state’s Supreme Court recently reaffirmed this standard, which, it said “is buttressed by a long line of Kentucky cases which call for a substantially similar approach.”213 Thus, instead of specific instructions, the compilations of civil and criminal jury instructions for Kentucky both suggest language for admonitions against outside research, to be given prior to recesses.

General Instructions Kentucky law requires that, prior to any recess during trial or deliberations, the jury “shall be admonished by the court that it is their duty not to converse with, nor allow themselves to be addressed by, any other person on any subject of the trial; and that, during the trial, it is their duty not to form or express an opinion thereon, until the case is finally submitted to them.”214 The same statute provides that “[n]o officer, party, or witness to an action pending, or his attorney or attorneys shall, without leave of the court, converse with the jury or any member thereof upon any subject after they have been sworn.”215

Criminal Instructions The requirement for a pre-recess admonition is repeated in Kentucky’s criminal procedure rules: The jurors, whether permitted to separate or kept in charge of officers, must be admonished by the court that it is their duty not to permit anyone to speak to, or communicate with, them on any subject connected with the trial, and that all attempts to do so should be immediately reported by them to the court, and that they should not converse among themselves on any subject connected with the trial, nor form, nor express any opinion thereon, until the cause be finally submitted to them. This admonition must be given or referred to by the court at each adjournment.216

Louisiana – Civil: Archaic;  Criminal: Archaic Civil Instructions Louisiana does not have a set of jury instructions, civil or criminal, with the official imprimatur of the courts.217 But there is a set of generally accepted instructions in Cheney C.

Instr. Kan. 4th, Civil 101.10 (2008), which does not contain such specific references. The court’s recommendation to adopt the New York language was based on a description of the New York changes in People v. Jamison, 24 Misc. 3d 1238(A), 899 N.Y.S.2d 62 (Table) 2009 WL 2568740, 2009 N.Y. Slip Op. 51800(U) (N.Y. Sup. Ct., Kings County Aug. 18, 2009) (unpublished). The New York rule is N.Y. Crim. Instr. 2d [NY CJI 2d], Jury Admonitions (rev. May 5, 2009), http://www.nycourts.gov/cji/1-General/ CJI2d.Jury_Admonitions.pdf. See infra note 243 and accompanying text. 212. Cox v. Cooper, 510 S.W.2d 530, 535 (Ky. 1974). 213. Bayless v. Boyer, 180 S.W.3d 439, 450 (Ky. 2005) (citations omitted). 214. Ky. Rev. Stat. 29A.310(1) (2011). See also 2-13 Palmore & Cetrulo, Ky. Jury Instrs. § 13.04, Admonitions (2011). 215. Ky. Rev. Stat. 29A.310(2). 216. Ky. R. Crim. Pro. 9.70. 217. Cheney C. Joseph & P. Raymond Lamonica, 17 La. Civ. L. Treatise, Crim. Jury Instrs. § 1.01 (2d ed. 2010). But see Louisiana Supreme Court looks to simplify jury instructions for civil cases, New Orleans Times-Picayune, Jan. 8, 2011, http://www.nola.com/politics/index.ssf/2011/01/louisiana_supreme_ court_looks.html. Times-Picayune, Jan. 8. 2011, .. Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age Joseph and P. Raymond Lamonica’s Louisiana Civil Law Treatise.218 Their opening instruction for civil trials includes an admonition not to consult outside material, and a short rationale statement, but books are the only medium specifically mentioned. I should also point out to you that anything you may have seen or heard outside the courtroom is not evidence and should be disregarded. You should decide this case solely on the evidence presented here in the courtroom. That also means that you should not conduct any research on these matters yourselves, such as reading books that might help you understand this case. Since not all of the jurors would have access to the same materials, this independent effort on your part would not be fair to the parties to this litigation.219

The introductory civil instructions also include an admonition against discussing the case prior to deliberations.220 This is repeated in the civil instructions immediately prior to deliberations. If you recess during deliberations, or if your deliberations should last more than one day, you must follow all of the instructions that I have given you about your conduct during the trial. You must not discuss the case with anyone outside of the jury room, even another juror. You may only discuss the case with your fellow jurors in the jury room and only when all of your fellow jurors are present.221

Criminal Instructions There is no such admonition in the criminal instructions, nor is there an admonition in the criminal instructions against discussing the case outside of deliberations.222

Maine – Civil: Modern;  Criminal: Modern General Instructions Maine’s Jury Instruction Manual contains an instruction, meant for both civil and criminal trials, which admonishes jurors to not communicate about the case in any way, specifically mentioning the Internet and social media. At this time, I want to remind you of some things that are important to assure that this is a fair trial and that you, as jurors, are perceived as having been fair and impartial in hearing the case and reaching your verdict: First, do not talk among yourselves about this case, or about anyone involved with it, until the end of the trial when you go to the jury room to decide on your verdict; Second, do not talk or communicate with anyone else about this case, until the trial has ended and you have been discharged as jurors. “Anyone else” includes members of your family, your friends, people at your workplace, or anyone else with whom you might communicate. You may tell them that you are a juror, but do not tell them anything about the case until after you have been discharged. When I ask you not to communicate, that means, beyond talking directly to people, that you may not communicate anything about this case or your participation in it using any means of communication including e-mail, cell phones, text messaging, Twitter or any blog, internet chat room, or social networking websites such as Facebook, YouTube, My Space, or LinkedIn;

218. See 17 La. Civ. L. Treatise, Criminal Jury Instructions (2d ed. 2010) and H. Alston Johnson III, 18 La. Civ. L. Treatise, Civil Jury Instructions (2d ed. 2010). Note that the word “civil” in the title of the treatise is a reference to Louisiana’s history as a “civil law” jurisdiction; that the treatise is “intended to cover the entire field of the civil law.” A.N. Yiannopoulos, Louisiana Civil Law: A Lost Cause?, 54 Tul. L. Rev. 830, 845 (1980). 219. 18 La. Civ. L. Treatise, Civ. Jury Instr. § 1.01 (2d ed. 2010). 220. Id. 221. 18 La. Civ. L. Treatise, Civ. Jury Instrs. § 2.15 (2d ed. 2010). 222. See 17 La. Civ. L. Treatise, Crim. Jury Instrs. (2d ed. 2010).

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Jury Instructions for the Modern Age Third, do not let anyone talk to you or communicate with you by any means, about the case or about anyone who has anything to do with it. If someone should try to talk to you or communicate with you about the case, please report it to a court officer immediately; Fourth, during the trial do not talk with or speak to any of the parties, lawyers, or witnesses involved in this case--you should not even pass the time of day with any of them. If a person from one side of the lawsuit sees you talking to a person from the other side--even if it is simply to pass the time of day--an unwarranted and unnecessary suspicion about your fairness might be aroused. If any lawyer, party, or witness does not speak to you when you pass in the hall, ride the elevator or the like, it is because they are not supposed to talk or visit with you; [Fifth, do not read any news stories or articles about the case or about anyone involved with it, or listen to any radio or view any internet, website, or other electronic or television reports about the case or about anyone involved with it;] Sixth, do not do any research, such as consulting dictionaries or other reference materials or internet materials, and do not make any investigation about the case on your own; and Finally, do not make up your mind about the issues until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence. Keep an open mind until then.223

While the initial instruction does not explain the rationale for these restrictions, the admonition for recesses does so. Members of the jury. At each recess I have emphasized how important it is that you do not discuss the case or otherwise have any contact about the case. I have kept repeating these points because they are so vital to assure the State (plaintiff ) and defense a fair trial. Before we break for the evening, let me discuss in more detail why it is so important. I know you are going to go home, there will be family, friends; they will be interested in what you are doing. But it is absolutely essential that you not discuss the case with them for two basic reasons. First, there is still more of this case to come. Until the case is finally completed, you must keep an open mind about it. I know all of you will want to do that, but sometimes, when we discuss something, we tend to take positions on the matter, and once we have taken a position it is a little more difficult, in our own mind, to back away from that position. This concern never arises, however, if you do not discuss the case or communicate about it in any way, either among your fellow jurors or with anyone else until it is finally completed. Second, it is important that you not discuss or communicate about the case so that no one can suggest that you have prejudged this case, or that you have been influenced in any way by anything that has occurred or has been said outside of this courtroom. No one can make those suggestions if you do not discuss the case. As I have indicated before, you must decide the case based on what you hear and see in this courtroom and in this courtroom alone. For that reason, beyond your obligation not to discuss or communicate about this case, it is essential that you not conduct any independent investigation of the facts or issues that relate to this case. Please do not investigate the scene of events at issue here and please do not do any reading or research about issues in this case. Any such activity would be an improper gathering of evidence outside of the trial process. Also, please do not read anything that may appear about this case in the newspaper, and please try to avoid anything about this case that may be presented on radio or television or the internet. There may be things in such reports that are not proper for you to hear or view. Further, any news reports of this trial, no matter how competently prepared, are necessarily going to be brief summaries of the events. But your impressions of this trial must be your own. You must not be influenced by highlights of events which represent someone elseâ&#x20AC;&#x2122;s belief of what has been important. Certainly you will want to read about the trial when it is over. Have relatives and friends save copies of newspapers for that

223. Donald G. Alexander, 1-2 Maine Jury Instruction Manual, § 4-2A (4th ed., 2001). Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age purpose. There is nothing that inhibits you from reading about this case once it is finished, but please do not have any contact or engage in any communication, in any way, regarding this case outside of the courtroom, until it is finished, after you have reached your verdict. With those cautions, I would wish you a good evening, we will reconvene tomorrow morning at [ ].224

Maryland – Civil: Archaic;  Criminal: Archaic Maryland has not updated its pattern jury instructions to account for social media and the Internet.

Civil Instructions The pattern civil instructions only admonish jurors to “not discuss the case with anyone who is not on the jury,” and to “not visit the scene of any incident mentioned in the testimony or seek advice from friends or acquaintances as to any issues in this case or otherwise conduct investigation outside the courtroom.”225 Jurors are also given a short explanation that states the standard rule, but it does not address the rationale behind it. The reason for this is that you must decide the case only on the evidence which you have heard and seen in the courtroom and on nothing else.226

Criminal Instructions The criminal pattern instructions tell jurors not to “Do not research or investigate the case on your own. You must base your decision only on the evidence presented in this courtroom.”227 The criminal instructions also include two instructions regarding media coverage: one for prior to trial, and another to be used prior to deliberations. They both mention traditional media, but neither of the instructions specifically address the Internet or social media: There may be news coverage of this case. For that reason, do not watch or listen to any television or radio news broadcasts. Do not read anything from any source about this case, about crime in general or about criminal sentencing [or the death penalty]. If anything occurs contrary to these instructions, please write me a note, as soon as possible, and do not discuss it with anyone else.228 You must completely disregard any newspaper, television or radio reports that you may have read, seen or heard concerning this case. Such reports are not evidence. You must not be influenced in any manner by publicity.229

The admonition against discussing the case also fails to address new media: Do not discuss this case with anyone or let anyone discuss this case with you or in your presence. This includes other jurors, courtroom personnel, friends and relatives, spectators and reporters. In addition, you should avoid any contact with the parties, witnesses and lawyers involved in this case. If anyone tries to discuss this case with you or if anything questionable occurs, please write me a note, as soon as possible, and do not discuss it with anyone else.230

224. Id., § 4-19. 225. Md. Inst. for Continuing Prof. Ed. of Lawyers, Md. Civil Pattern Jury Instr. 1.01(a)(3) (2009). 226. Id. 227. Md. Inst. for Continuing Prof. Ed. of Lawyers, Md. Crim. Pattern Jury Instr. [MPJI-Cr] 1.00 (2007). 228. MPJI-Cr 1:02(A) (2007) (for use prior to trial). 229. MPJI-Cr 1:02(B) (2007) (for use prior to deliberations). 230. MPJI-Cr 1:02(B) (2007) (for use prior to recesses and upon daily adjournments).

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Cases The Maryland Court of Special Appeals reversed two jury verdicts in 2009 because of social media use by jurors during trial. In Wardlaw v. State, the court concluded that the trial court’s failure to question the jurors about the influence of an individual juror’s Internet research on “oppositional defiant disorder” required a reversal.231 A different panel of the same court reached the same conclusion in Clark v. State, in which a bailiff found in the jury room printouts from Wikipedia on various scientific issues in the trial.232 Issues of jurors’ use of the Internet arose in two Maryland cases in a single month, November 2009. In the corruption trial of Baltimore mayor Sheila Dixon, the defense initially sought a new trial after Dixon was convicted, because five jurors had become friends and discussed the case on Facebook.233 And although a juror in a murder trial admitted to researching the case on the Internet, the court instructed the jury to base their verdict only on the evidence in court, and the jury acquitted the defendant.234 A rule adopted by the Maryland Court of Appeals in 2010 allows cell phones and other devices capable of transmitting, receiving or recording information in the state’s courts, but bans the devices from jury deliberation rooms and from courtrooms without permission of the presiding judge.235 As originally proposed, the rule would have generally banned most cell phones and other electronic devices from courthouses.236

Massachusetts – Civil: Archaic;  Criminal: Archaic Massachusetts has not updated its pattern jury instructions to account for social media and the Internet.

Civil Instructions In the Massachusetts model civil instructions, the instruction regarding trial publicity is similar to the criminal instruction: During the time that you serve on this jury, there may be reports about this case in the newspapers or on radio or television. You may be tempted to look at or listen to them. Please do not do so. The law requires that the evidence you consider in reaching your verdict meet certain standards; for example, a witness may testify about events [he/she] has personally seen or heard but not about matters told to [him/her] by others. Also, witnesses must be sworn to tell the truth and must be available for questions from the other side. News reports about the case are not subject to these standards, and if you look at or listen to such reports, you may be exposed to information, true or not, which unfairly favors one side and which the other side is unable to respond to.

231. 185 Md. App. 440, 971 A.2d 331 (Md. Ct. Special App. 2009). 232. No. 0953/08 (Md. Ct. Special App. Dec. 3, 2009) (unreported); see Andrea Siegel, Judges Confounded by Jury’s Access to Cyberspace, Balt. Sun, Dec. 19, 2009, http://articles.baltimoresun.com/2009-12-13/ news/bal-md.ar.tmi13dec13_1_deliberations-period-florida-drug-case-jurors. 233. Julie Bykowicz, 5 Dixon jurors recalled as witnesses, Balt. Sun, Dec. 30, 2009, http://articles.baltimoresun.com/2009-12-30/news/bal-md.dixon30dec30_1_juror-misconduct-new-trial-arnold-mweiner. Dixon eventually reached a plea agreement that included her resignation. 234. Lisa Beisel, Jury acquits man in attempted murder, The [Annapolis, Md.] Capital, Nov. 7, 2009, http://www.hometownannapolis.com/news/top/2009/11/07-17/Jury-acquits-man-in-attempted-murder.html?ne=1. 235. Md. Ct. R. 16-110 (2010), available at http://mdcourts.gov/reference/rule16-110.pdf. 236. Tricia Bishop, New rule could end tweets from trials statewide, Balt. Sun, Feb. 22, 2010, http://articles. baltimoresun.com/2010-02-22/news/bal-md.twitter22feb22_1_cell-phones-trials-tweets. Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age In fairness to both sides, therefore, please avoid such news reports. Put them aside immediately if they come to your attention. Your sworn obligation is to decide this case solely on the evidence presented in the courtroom.237

Criminal Instructions After instructing jurors not to discuss the case with anyone during the trial, including fellow jurors and the jurors’ families, the preliminary instruction in Massachusetts’ model criminal instructions includes an optional instruction with an admonition to avoid coverage of the case; both mention only traditional media. As I have told you, you must decide this case solely on the evidence presented in the courtroom. You must completely disregard any newspaper, television or radio reports about this case which you might encounter. It would be unfair to consider such reports, since they are not evidence and the parties will have no opportunity to challenge their accuracy or to explain them. Please try to avoid such news reports. If any come to your attention, it is your sworn responsibility to put them aside immediately and to direct your attention elsewhere.238

The instruction regarding trial publicity uses similar language but adds an explanation for the rationale of the rule. During the time that you serve on this jury, there may be reports about this case in the newspapers or on radio or television. You may be tempted to look at or listen to them. Please do not do so. Due process of law requires that the evidence you consider in reaching your verdict meet certain standards; for example, a witness may testify about events he has personally seen or heard but not about matters told to him by others. Also, witnesses must be sworn to tell the truth and must be available for questions from the other side. News reports about the case are not subject to these standards, and if you look at or listen to such reports, you may be exposed to information, true or not, which unfairly favors one side and which the other side is unable to respond to. In fairness to both sides, therefore, please avoid such news reports. Put them aside immediately if they come to your attention. Your sworn obligation is to decide this case solely on the evidence presented in the courtroom.239

The text of the recess instruction does not include an admonition against jurors undertaking independent research about a case, although a note to the instruction states that, “The judge may also wish to caution jurors not to conduct their own research or investigations (including Internet or dictionary searches).”240

Cases Massachusetts had some of earliest appeals based on juror use of the Internet. In Commonwealth v. McCaster, an appeals court upheld a drug conviction in which the defense agreed to proceed with 11 jurors rather than 12 after three jurors who were found to have consulted outside sources during deliberations were removed and replaced with

237. Mass. Continuing Legal Ed., Inc., Mass. Super. Ct. Civ. Pract. Jury Inst. [CIVJIII MA-CLE] (2009), Instr. 13-1. 238. Massachusetts Continuing Legal Ed., Inc., Crim. Model Jury Instructions for Use in the Dist. Ct. [MJI MA-CLE], Instr. 1.120 (2009). 239. MJI MA-CLE 1.260 (2009). 240. MJI MA-CLE 1.240, Note 2 (2009); see also Com. v. Rodriguez, 63 Mass. App.Ct. 660, 678 n.11, 828 N.E.2d 556, 568 n.11 (Mass. App.Ct. 2005) (instruction to jurors to not to do their own research and investigation “obviously encompassed Internet research as well.”).

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Jury Instructions for the Modern Age two alternates. One of these jurors researched the chemical composition of cocaine online; the other two jurors spoke to two police officers and a friend, respectively.241 In the midst of the prosecution’s case in a rape trial, a juror posted the following message on an Internet listserv stating that she was “stuck in a 7 day-long Jury Duty rape/assault case ... missing important time in the gym, working more hours and getting less pay because of it! Just say he’s guilty and lets [sic] get on with our lives!”242 Two members of the listserv responded: one was an attorney in New York who wrote that the message was inappropriate, and recommended that the juror inform the judge of the situation. The juror did not inform the judge in the rape case, but the New York attorney informed defense counsel.243 The trial court initially denied a defense motion for postverdict voir dire of the jury, and was reversed.244 On remand the trial court questioned the juror, and determined that “there is nothing in the evidence before the Court to indicate that [the juror] was ever at any time exposed to any extraneous matters” and that “there is no basis for any further action in this matter.”245 The Supreme Judicial Court remanded again, ordering the trial judge to conduct a more probing investigation.246 The judge again reached the same conclusion, and the appeals court affirmed.247 In a 2005 decision, the Massachusetts Appeals Court reversed a cocaine trafficking conviction. Although the reversal was primarily based on the trial court’s improper removal of a juror for speaking to relatives about the case, the appeals court also noted that another juror’s research of the Massachusetts statute regarding impaneling, sequestering, and discharge of jurors “reinforces our conclusion that the verdicts cannot stand.”248 More recently, in a 2011 priest rape trial, a juror who was also editor of a local newspaper was removed after he posted several tweets during the proceedings, including one stating, “Sucks that you can’t tweet from the jury box. What’s the fun in that?”249 The juror later blogged about the experience, saying that “The judicial system – at least as represented by the Berkshire Superior Court in Pittsfield, Mass. – is light years behind the curve when it comes to the role of social media in fomenting and perpetuating democracy.”250

Michigan – Civil: Modern;  Criminal: Modern Civil Instructions Michigan’s Model Civil Jury Instructions were amended in 2009 to specifically address juror use of the Internet and other resources during trial, and provide an explanation of the rationale behind the rules.

241. 46 Mass. App. Ct. 752, 710 N.E.2d 605 (1999). 242. Com. v. Guisti, 434 Mass. 245, 249-50, 747 N.E.2d 673, 678 (Mass. 2001). 243. Id. at 250, nn.6 & 7, 747 N.E.2d at 678, nn.6 & 7. 244. Id. at 253, 747 N.E.2d at 681. 245. Com. v. Guisti, 449 Mass. 1018, 1018, 867 N.E.2d 740, 740 (Mass. 2007). 246. Id. at 1018-19, 867 N.E.2d at 741. 247. Id. at 1019, 867 N.E.2d at 742. 248. Com. v. Rodriguez, 63 Mass. App. Ct. 660, 828 N.E.2d 556 (2005). The statute researched by the juror was Mass Laws ch. 234, § 26B. Id. at 678, 828 N.E.2d at 568. 249. Bob Gardinie, Rape trial of ex-priest now before jury: Deliberations set to start in case; juror dismissed after using “Twitter,” Albany (N.Y.) Times-Union, Feb. 9, 2011, http://www.timesunion.com/local/article/Rape-trial-of-ex-priest-now-before-jury-1004872.php; see also Rosemary Armao, Big mouth in the jury box, City Brights Blog, Albany (N.Y.) Times-Union, Feb. 14, 2011, http://blog.timesunion. com/armao/big-mouth-in-the-jury-box/286/. 250. Seth Rogovoy, Twitter Rubs Up Against the Judicial System, The Rogovoy Report, http://rogovoy. com/news1824.html. Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age (2) Until I discharge you as jurors, you may not read, listen to, or watch any news reports about this case. Under the law, the evidence you consider to decide the case must meet certain standards. For example, witnesses must swear to tell the truth, and the lawyers must be able to cross-examine them. Because news reports do not have to meet these standards, they could give you incorrect or misleading information that might unfairly favor one side. So, to be fair to both sides, you must follow this instruction. (3) While you are in the courtroom and while you are deliberating, you are prohibited altogether from using a computer, cellular telephone, or any other electronic device capable of making communications. You may use these devices during recesses, but even then you may not use them to obtain or disclose the kind of information I will describe next. (4) Until you are discharged as jurors on this case, even when you are not in court, you may not use a computer, cellular phone, any electronic device capable of making communications, or any other method, to get any information about this case. Information about this case means: (a) any information about a party, witness, attorney, or court officer; (b) any news accounts about this case; (c) any information on any topics raised in the case, or testimony offered by any witness; and (d) any other information that you might think would be helpful in deciding the case. *** (6) You must not do any investigations on your own or conduct any experiments of any kind. This includes using the Internet for any purpose regarding this case.251

These changes were made after the Michigan Supreme Court revised its court rules to require such an instruction.252 (2) The court shall instruct the jurors that until their jury service is concluded, they shall not (a) discuss the case with others, including other jurors, except as otherwise authorized by the court; (b) read or listen to any news reports about the case; (c) use a computer, cellular phone, or other electronic device with communication capabilities while in attendance at trial or during deliberation. These devices may be used during breaks or recesses but may not be used to obtain or disclose information prohibited in subsection (d) below; (d) use a computer, cellular phone, or other electronic device with communication capabilities, or any other method, to obtain or disclose information about the case when they are not in court. As used in this subsection, information about the case includes, but is not limited to, the following: (i) information about a party, witness, attorney, or court officer; (ii) news accounts of the case; (iii) information collected through juror research on any topics raised or testimony offered by any witness; (iv) information collected through juror research on any other topic the juror might think would be helpful in deciding the case.253

251. Mich. Sup. Ct. Comm. on Model Civ. Jury Instrs,, Mich. Model Civ. Jury Instr. [Mich. M Civ. JI] 2.06 (2009), available via http://courts.mi.gov/mcji/MCJI.htm. The 2009 changes incorporated former M Civ JI 2.07 (“Jurors Not to Consider Information Received outside Presence of Court”) and M Civ JI 2.12 (“Caution about Publicity in Cases of Public Interest”) into M Civ JI 2.06. 252. See Tresa Baldas, For jurors in Michigan, no tweeting (or texting, or Googling) allowed, Nat’l L. J., July 1, 2009, http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202431952628. 253. Mich. Ct. R. 2.511(H)(b) (as amended eff. Sept. 1, 2009). See Amendment of Rule 2.511 of the Michigan Court Rules, ADM File No. 2008-33 (Mich. order June 30, 2009), available at http://courts.michigan. gov/supremecourt/Resources/Administrative/2008-33.pdf. See also Baldas, id.

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Criminal Instructions The criminal jury instructions prepared by the Michigan State Bar do not have the official sanction of the courts, and their use “remains discretionary with the capable trial judges of this state.”254 Nevertheless, the instructions have been updated to account for new technologies, although they do not identify specific web sites and services. (1) The only information that yon will receive about this case will come to you in this courtroom. You must not consider any information that comes from anywhere else. [You must not read newspaper headlines or articles relating to the trial. Also you must not watch or listen to television and radio comments or accounts of the trial while it is in progress.] (2) Until your jury service is concluded, you are not to discuss the case with others, including other jurors, except as otherwise authorized by the court. You are not to read or listen to any news reports about the case. You may also not use a computer, cellular phone, or other electronic device with communication capabilities while in attendance at trial or during deliberation. These devices may be used during breaks or recesses but may not be used AT ANY TIME to obtain or disclose (a) information about a party, witness, attorney, or court officer, (b) news accounts of the case, or (c) information collected through juror research on any topics raised or testimony offered by any witness or by any exhibit. (3) [You must not visit the scene of the occurrence that is the subject of this trial. If it should become necessary that you view or visit the scene, you will be taken as a group under court supervision. You must not consider as evidence any personal knowledge you have of the scene.] (4) You must not do any investigations on your own or conduct any experiments of any kind. This includes using the Internet for any purpose regarding this case. (5) If you discover a juror has violated my instructions, you should report it to me.255

Cases In August 2010, a Michigan juror was removed from the jury in a criminal trial and punished for contempt after posting a message on Facebook during trial stating, “actually excited for jury duty tomorrow. It’s gonna be fun to tell the defendant they’re GUILTY.” Macomb County Circuit Court Judge Diane Druzinski found the juror, Hadley Jons, guilty of contempt of court, and ordered her to pay a $250 fine and to write an essay about the constitutional right to a fair trial.256

Minnesota – Civil: Modern;  Criminal: Modern Civil Instructions One of Minnesota’s admonitions against juror use of the Internet, which mentions several specific sites and services, is contained in Minnesota’s preliminary civil instruction. Now a few words about your conduct as jurors: ***

254. See People v. Vaughn, 447 Mich. 217, 235 n.13, 524 N.W.2d 217, 226 n.13 (1994), abrogated on other grounds by People v. Carines, 460 Mich. 750, 597 N.W.2d 130 (Mich. 1999). 255. Mich. Crim. Jury. Instr. [CJl2d] 2.16 (2d ed,, 1991, supp. 2011). 256. Woman Sentenced Over Facebook Posting, ClickOnDetroit (WDIV-TV, Detroit), Aug. 29, 2010, http://www.clickondetroit.com/news/24806080/detail.html. Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age Do not do your own investigation. Do not ask people about this case. Do not refer to any newspapers, books, magazines, the internet, or other sources of information to answer questions of fact or of law raised by the evidence or by the court’s instructions. When you go home during the trial, do not talk to your family, friends, or others about the case. You may tell them you are a juror on a civil case and that is all that you should tell them. Do not report your experiences as a juror while the trial and deliberations are going on. Do not e-mail, blog, tweet, text or post anything to Facebook, MySpace, or other social networking sites about this trial. Do not visit any “chat rooms” where this case may be discussed. *** Remember you cannot consider anything you hear or learn about this case outside this courtroom. These rules are important. If these rules are not complied with, the whole trial may need to be redone and we will have to start over from the beginning.257

The instruction for recesses repeats the previous admonition in summary form. While you are adjourned, there are some rules you must follow: *** 4 You must not refer to any newspapers, books, magazines, the internet, or other sources of information to answer questions of fact or of law raised by the evidence or by the court’s instructions. 5 You must not e-mail, blog, tweet, text or post anything to Facebook, MySpace, or other social networking sites about this trial. Do not visit any “chat rooms” in order to discuss this case. These rules are important. If these rules are not complied with, the whole trial may need to be redone and we will have to start over from the beginning.258

Criminal Instructions Minnesota’s criminal jury instructions have been updated to specifically reference several social media services and websites in their admonitions against jurors commenting on or researching cases. The preliminary criminal instruction provides: There are things you should not do during this trial. You are not investigators. …Do not research anything about the case, including the issues, evidence, parties, witnesses, location, or the law, through any form of written, print, electronic or Internet media. *** You do not have to stay away from people and refuse to speak to them. Do whatever you wish, but do not talk about this case, and do not talk at all to anyone involved in it. Do not read about this case in the newspapers or listen to news about it on radio or television. Do not e-mail, blog, tweet, text or post anything to your Facebook, MySpace, or other social networking sites about this trial. Do not visit any “chat rooms” where this case may be discussed.259

The “plain language” version of this instruction repeats these admonitions,260 and adds a mention of the possible consequences of failure to follow the instruction: … Do not e-mail, blog, tweet, text or post anything to your Facebook, MySpace, or other social networking sites about this trial. Do not visit any “chat rooms” where this case may be discussed. 257. 4 Minn. Prac., Jury Instr. Guides—Civil [CIVJIG] 10.15 (5th ed. 2010). 258. CIVJIG 10.40 (2010 5th ed.). 259. 10 Minn. Prac., Jury Instr. Guides—Crim. [CRIMJIG] 1.02A (5th ed. 2010). 260. A note to the instructions reminds judges that “[e]ach judge will probably find jurors respond best to a statement about the process and the case that is phrased as naturally as possible by the judge.” 10 Minn. Prac., Jury Instr. Guides--Criminal A, ch. 1, note 1 (5th ed. 2010).

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Jury Instructions for the Modern Age Do not read or listen to news reports about the case. Do not do your own investigation. Do not ask people about this case. Do not visit any of the locations mentioned in the trial. Do not research anything about the case, including the issues, evidence, parties, witnesses, location, or the law, through any form of written, print, electronic or Internet media. If you do not follow these instructions, you may jeopardize the trial. This may require the whole trial to be redone and we will have to start over.261

The plain language version is repeated in the recess instruction.262

Cases In a recent decision, a Minnesota appeals court affirmed a trial court’s denial of a hearing on whether Facebook postings by a prosecutor affected the jury in a trial where the defendant was convicted of three counts of attempted first-degree murder, one count of first-degree assault, and two counts of second-degree assault.263 The Facebook comments, posted on the day that the case was submitted to the jury, discussed one of the jurors and said that the prosecutor was “keep[ing] the streets of Minneapolis safe from the Somalias [sic].”264 But the appeals court found no evidence that jurors saw the comments, placing faith in the instructions they received during trial.265 Here, the jury was instructed throughout the trial not to research the case, the issues, or anyone involved in the case on the Internet. Appellant presented evidence in the form of two affidavits—one by each of his trial attorneys—stating that the prosecutor had posted the alleged comments on her public Facebook page. But appellant did not present evidence that any juror had been exposed to the comments. Absent evidence of juror exposure, appellant did not establish a prima facie case of juror misconduct.266

Mississippi – Civil: Modern;  Criminal: Modern Civil Instructions Misssissippi’s civil jury instructions discuss Internet use in the context of recesses and adjournments, using the same language in both the initial and recess instructions. When you go home during the trial, do not talk to your family, friends, or others about the case. You may tell them you are a juror on a case and that is all that you should tell them. Do not discuss your experiences as a juror while the trial and deliberations are going on. Do not e-mail, blog, tweet, text or post anything to your Facebook, MySpace, Twitter, or other social networking sites about this trial. Do not visit any “chat rooms” where this case may be discussed.267

The Mississippi civil instructions also include an admonition against juror research that has been updated to include the Internet. Until you are discharged from serving on this jury, you are not to read, listen to, or watch any news reports about this case. You must not do any research on your own or as a group. You must not use dictionaries, a computer, your phone, the Internet, or use any other research materials to learn anything about this case. You are not to contact anyone, including a family doctor, accountant, or at 261. CRIMJIG 1.02B (5th ed. 2010). 262. CRIMJIG 2.08 (5th ed. 2010). 263. State v. Usee, — N.W.2d —, 2011 WL 2437271 (Minn. App. June 20, 2011). 264. Id., 2011 WL 2437271, at *6. 265. Id. at *7. 266. Id. 267. Miss. Prac. Model Jury Instr. Crim. § 1:2.50 (2010) (introductory instruction); see also Miss. Prac. Model Jury Instr. Civ. § 1:15.50 (recess instruction) (using same language). Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age torney, to ask him/her anything about this case. You must not visit or view the scene(s) of any event(s) involved in this case. You must decide this case based only on the evidence presented in this trial and the instructions of law that I will give you.268

Criminal Instructions

Similar language is used in some of the state’s criminal jury instructions.269 But other criminal instructions have not been updated, and still admonish jurors to “not read any newspaper articles about the case and you must not listen to any news broadcasts or watch any news telecasts about this case.”270

Missouri – Civil: Modern;  Criminal: Modern Civil Instructions

Missouri updated its general civil jury instruction in 2007 to bar Internet research,271 and again in 2009 to explicitly include web services in the prohibition against juror research or communication.272 The instruction also relates the possible consequences of failing to obey this admonition.273 (7) OUTSIDE INFLUENCES During the trial, you should not remain in the presence of anyone who is discussing the case when the court is not in session. Otherwise, some outside influence or comment might influence a juror to make up his or her mind prematurely and be the cause of a possible injustice. For this reason, the lawyers and their clients are not permitted to talk with you until the trial is completed. (8) PROHIBITION OF JUROR RESEARCH OR COMMUNICATION ABOUT THIS CASE Your deliberations and verdict must be based only on the evidence and information presented to you in the proceedings in this courtroom. Rules of evidence and procedure have developed over many years to make sure that all parties in all cases are treated fairly and in the same way and to make sure that all jurors make a decision in this case based only on evidence allowed under those rules and which you hear or see in this courtroom. It would be unfair to the parties to have any juror influenced by information that has not been allowed into evidence in accordance with those rules of evidence and procedure, or to have a juror influenced through the opinion of someone who has not been sworn as a juror in this case and heard evidence properly presented here. Therefore, you must not conduct your own research or investigation into any issues in this case. You must not visit the scene of any of the incidents described in this case. You must not conduct any independent research or obtain any information of any type by reference to any person, textbooks, 268. Miss. Prac. Model Jury Instr. Civil § 1:15.60 (2010). 269. See Miss. Prac. Model Jury Instr. Crim. § 1:2.50 (2010) (recess admonition); Miss. Prac. Model Jury Instr. Crim. § 1:2.70 (2010) (research admonition). 270. Miss. Prac. Model Jury Instr. Crim. § 1:1 (2010) (preliminary instruction). 271. In re Revisions to MAI-Civil (Mo. May 1, 2007), slip. op. at 5, available at http://www.courts.mo.gov/ file.jsp?id=7658. 272. In re Revisions to MAI-Civil, 2009 Mo. LEXIS 544, 5-6 (Mo. Nov. 23, 2009), at *5-6, available at http://www.courts.mo.gov/file.jsp?id=41859. 273. The Missouri instructions distinguish between instructions and admonitions. “[D]irections or admonitions given by a trial judge to a jury during the course of trial are not instructions. Examples of such directions or admonitions include a direction not to visit the scene of an accident or an oral repetition of the admonition to refrain from discussing the case during a recess. Considerable discretion is afforded to the trial judge, subject to appropriate requests or objections of counsel, to determine the scope and frequency of such directions or admonitions.” Mo. Approved Jury Instr. (Civil) [MAI Civil] 2.01, note B (6th ed. 2010, supp. 2011).

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Jury Instructions for the Modern Age dictionaries, magazines, the use of the Internet, or any other means about any issues in this case, or any witnesses, parties, lawyers, medical or scientific terminology, or evidence that is in any way involved in this trial. You are not permitted to communicate, use a cell phone, record, photograph, video, e-mail, blog, tweet, text, or post anything about this trial or your thoughts or opinions about any issue in this case to any other person or to the Internet, “facebook”, “myspace”, “twitter”, or any other personal or public web site during the course of this trial or at any time before the formal acceptance of your verdict by me at the end of the case. If any of you break these rules, it may result in a miscarriage of justice and a new trial may be required.274

A note to this admonition advises that judges may also wish to admonish jurors regarding use of cell phones and other electronic devices: The trial court has considerable discretion regarding the use of cell phones or other electronic devices in the courthouse and during trial. Judicial discretion may be exercised by oral admonition, the addition of a paragraph regarding such devices at the end of MAI 2.01, or using a separate instruction.275

Criminal Instructions Missouri modified its approved criminal instructions in 2008 to address juror use of the Internet.276 After these modifications, the instruction for the first recess and for adjournment states, It is the Court’s duty to instruct you now upon a matter about which you will be reminded at each recess or adjournment of Court. Until this case is given to you to decide, you must not discuss any subject connected with the trial among yourselves, or form or express any opinion about it, and, until you are discharged as jurors, you must not talk with others about the case, or permit them to discuss it with you or in your hearing. Your decision must be based only on the evidence presented to you in the proceedings in the courtroom. You should not research this case on the Internet or by any other means. (You should not read, view, or listen to any newspaper, radio, or television report of the trial.)277

Montana – Civil: Archaic;  Criminal: Modern Civil Instructions Montana’s civil pattern instructions do not mention the Internet. Instead they include a general admonition that “the only evidence you will consider in this case must come to you while you are together as a jury in the courtroom, in the presence of the judge, the attorneys and the parties.”278 The instruction then tells jurors not to discuss the case, and states, “[i]t is necessary to avoid even the appearance of unfairness or improper conduct.”279 You should not read newspaper headlines or articles relating to the trial. You must not watch or listen to television and radio comments or accounts of the trial while it is in progress. You must not make any investigations on your own, view any material objects not presented in court or conduct any experiments of any kind. [I would particularly warn you against inspecting the accident scene involved in this lawsuit.]

274. MAI Civil 2.01, §8 (6th ed. 2010, supp. 2011). 275. Id., note F (6th ed. 2010, supp. 2011). 276. See In re: Revisions, additions and withdrawals to MACH-CR and MAI-CR 3d (Mo. May 20, 2008), available at http://www.courts.mo.gov/file.jsp?id=10320 (modifying Mo. Approved Instr. (Crim.) 300.04 [3d ed. 1987] [MAI-CR 3d] [admonition to avoid coverage of case] and MAI-CR 3d 302.01 [instruction on what is evidence]). 277. Mo. Approved Jury Instr. (Crim.) [MAI-CR] 300.04 (2011). 278. Montana Pattern Instr., Civil [MPI Civil] 1.04 (2007). 279. Id. Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age Failure to observe these precautions might require the retrial of this case, which would result in log delay, considerable expense to the county and the parties and a waste of your time and effort.280

Criminal Instructions Montana’s criminal jury instructions admonish jurors not to consult the Internet, and name a number of sites specifically by name: Fourth, during this trial you may not make any investigation of this case or inquiry outside of the courtroom on your own. You may not go to any place mentioned in the testimony without explicit order from me to do so. You must not consult any books, dictionaries, encyclopedias, research online, using Google, Yahoo, Bing, or any other Internet search engine, or use other reference materials or other sources of information unless I specifically authorize you to do so. Fifth, do not read about the case in the newspapers. Do not listen to radio or television broadcasts about the trial. News accounts may be incomplete or may contain matters that are not proper evidence for your consideration. This prohibition extends to all forms of communication, whether in person, written, or through any electronic device or media, such as the telephone, a cell or smart phone, BlackBerry, PDA, computer, the Internet, any Internet service, any text or instant messaging service, and any Internet chat room, blog, or website such as Facebook, MySpace, YouTube, and Twitter. You must base your verdict solely on what is presented in Court. You are now sworn jurors in this case, and you will hear the evidence and thus be in a better position than anyone else to know the true facts.281

Nebraska – Civil: Modern;  Criminal: Modern Civil Instructions Nebraska’s civil jury instruction to be given before trial was amended in 2010 to warn jurors against using any evidence other than what was presented in court, including their personal knowledge and experience. The instruction also bars use of various named web sites, and prohibits all use of cell phones and other devices in the courtroom. (4) In determining what the facts are, you must rely solely upon the evidence that is presented here within the four walls of this courtroom and that general knowledge that everyone has. Other than that general knowledge that everyone has, you must disregard your personal knowledge of any of the facts in this case. Do not use any electronic device in any way to discover or share any information about this case. This includes cell phones, Blackberries, computers, and other electronic devices. This includes searching, blogging, emailing, texting, using Facebook, Twitter, My Space, LinkedIn, or any similar social network. Do not conduct any of your own independent research about this case. Do not consult dictionaries, other reference materials, or electronic devices to obtain any information about this case—about the parties, the issues, the locations, or any thing else that has to do with this case. [Do not go near any of the places discussed in this case.] Do not pay any attention to any news reports regarding this case. Any information obtained outside of this courtroom, whether through reference materials, newspapers, television, [or] computers or other electronic devices, [or visits to the places involved in this case,] could be misleading, inaccurate, or incomplete. For example, information found in newspapers or books, or on the internet, may be wrong. [The places involved in this case may have changed.] In addition, relying on any of this information would be unfair because the parties would not have the opportunity to refute, explain, or correct it.

280. Id. 281. Mont. Crim. Jury Instr. [MCJI] 1-101 (2009), available at http://www.doj.mt.gov/resources/criminaljury/chapter1.pdf.

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Jury Instructions for the Modern Age (5) You are not allowed to use a computer, cell phone, or other electronic device at all while you are in the courtroom and during your deliberations near the end of the trial. You may use such devices during breaks or recesses, but you may not use them to obtain or disclose information about this case or any of the people involved in this case. *** Again let me remind you that you must not discuss this case with anyone, not even with each other, until near the end of the trial when I tell you to do so and you go into the jury room to discuss your verdict. You must not send, search for, or receive any communication about this case, whether in person, on the phone, through any electronic device, or in any other way until such time as I instruct you that you may do so. You must not make up your minds regarding this case until after submit it to you for your consideration and your verdict 282

A lengthy comment to this instruction, under the heading â&#x20AC;&#x153;The Problem Of Electronic Devices,â&#x20AC;? recommends that the court undertake a post-recess inquiry into whether the jurors followed the pre-recess electronic-devices admonition. In 2010 the Committee added admonitions to this pattern instruction regarding juror use of electronic devices. The problems include jurors using such devices to do independent research and to communicate with others, outside the courtroom or in, about the trial. A large part of the Committeeâ&#x20AC;&#x2122;s approach to this problem is an attempt to educate jurors about the problem and how seriously the court (and the lawyers) takes the problem. The Committee recommends that this education begin immediately. *** As noted above, the admonitions regarding electronic devices attempt to educate jurors to the problem. There may be more that individual judges can do in this regard and the Committee suggests that judges consider and try whatever they think is necessary to accomplish this goal. One thing that judges might consider is instructing jurors on the consequences of violating these electronic-device admonitions: mistrials, new trials, waste of time, money, and resources. *** The world of electronic devices is particularly fast moving. Please be alert to new devices and new problems (such as the at-one-time new problems of jurors reading news reports off of small, handheld devices, jurors taking in-court photographs with their phones, and intimidating text messages being sent to jurors).283

The recess admonition reminds jurors to avoid on- and off-line information about the case. Do not read, watch, or listen to any reports about this case in the newspaper, on television, on the radio, on your computer, or on any other electronic device. If any information about this case does come to your attention, you must immediately disregard it.]284

A comment to this instruction recommends that the court undertake a post-recess inquiry into whether the jurors followed the pre-recess electronic-devices admonition. A part of the whole point of the electronic-device admonitions is to educate jurors about the problems these devices present and how serious the court and the lawyers consider these problems to be. The Committee believes that these post-recess questions will help convey to the jury just how serious the court is about the admonitions.285 282. 1 Neb. Prac., Neb. Jury Inst., Civ. [NJI2d Civ.] 1.00 (2d ed., 2010-11). 283. NJI2d Civ. 1.00, Comment II (2010-2011). 284. NJI2d Civ. 1.00A (2010-2011). 285. Id., Comment B. Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age The instruction prior to deliberation briefly reiterates this admonition. [While you are in the jury room, do not attempt to contact anyone outside of the jury room on your own. Do not call anyone, text anyone, or use Facebook, Twitter, My Space, or any other social network to communicate with anyone. If you need to get a message to anyone outside of the jury room, for example, to tell a family member that you will be home late, let (here designate appropriate person) know [in writing].]286

Criminal Instructions The language from the civil instructions is largely repeated in the Nebraska criminal jury instructions.287

Nevada – Civil: Archaic;  Criminal: No Instructions Civil Instructions Nevada’s newly-published civil jury instructions tell jurors not to speak to fellow jurors, attorneys and court personnel about cases, or to “undertake any investigation of the case on your own, or endeavor to research legal or factual issues on your own.”288 “To do so,” the jurors are told, “might contaminate your verdict.”289 There is no further explanation, and no mention of social media or the Internet.

Criminal Instructions Nevada’s criminal procedure law requires that judges admonish the jury that “[n]o juror may declare to any fellow jurors any fact relating to the case as of the juror’s own knowledge.”290 But Nevada does not have a modern set of jury instructions for criminal cases.291

Cases A Las Vegas man convicted of sexual assault and possession of child pornography in 2007 sought a new trial, but the district court denied the motion. The defense had argued that the man was unaware that the photographs that he had downloaded from the Internet depicted children under 16 years old, and three jurors said that they had undertaken their own tests to see if they could determine the age of various young women. One did this online, by looking at various pornographic web sites, while the other two conducted their experiments by observing people at church and at a mall. The court held that the Internet research was improper, but that “the average hypothetical juror would [not] be influenced by what that juror did.”292 The Nevada Supreme Court affirmed.293 In an unpublished decision in September 2010, the Nevada Supreme Court reversed the conviction in another sexual assault case where the jury foreperson conducted inde 286. NJI2d Civ. 5.01 (2010-2011). 287. See 1 Neb. Prac., Neb. Jury Inst. Crim. [NJI2d Crim.] 1.0 (2d ed., 2010-11) (preliminary instruction); NJI2d Crim. 1.1 (2010-11) (recess instruction); and NJI2d Crim. 9.0 (2010-11) (pre-deliberation instruction). 288. Civil Subcomm. of the State Bar of Nev., Nev. Jury Instrs., Gen’l Instr..2 (2011). 289. Id. 290. Nev. Rev. Stat. § 175.121 (2010). 291. In the early 2000s, the Nevada Bar Association established a committee to draft such instructions. 292. K.C. Howard, Juror misconduct cited, Las Vegas Rev.-J., Dec. 1, 2007, http://www.lvrj.com/ news/11993056.html. 293. Zana v. State. 216 P.3d 244, 248-49 (Nev. 2009). See also Zana v. State, — P.3d —, 2010 WL 4065818 (Nev. Sep. 29, 2010) (ordering hearing on habeas corpus petition).

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New Hampshire – Civil: Archaic;  Criminal: Modern Civil Instructions New Hampshire’s civil instructions restrict jurors from talking about a case, but do not mention social media. The instructions also do not explicitly prohibit outside research, on the Internet or otherwise. You are instructed not to discuss this case among yourselves or with anyone else; keep an open mind throughout the proceedings and do not decide the case individually or as a group until such time as all of the evidence has been presented at which time you will retire to the deliberation room to decide this case by your verdict. The purpose of this instruction is to ensure that you will decide this case based solely upon all of the evidence presented within the confines of this courtroom (and what you observed on the view) and not based upon conversations you may have with someone unrelated to the case or on some outside influence that has no relevance or valid connection to this case.295

Jurors are also instructed that they may base their decision only on evidence presented in court, again with no mention of the Internet or social media. You should decide the facts based on the evidence, that is, the testimony of the witnesses, the exhibits which will accompany you to the jury deliberation room, and what you observed during the course of the view. In deciding the facts, you should consider the evidence as well as the reasonable inferences you draw therefrom. You must not decide the facts on the basis of anything said by counsel not supported by the evidence or anything you may have read or heard about this case, or cases such as this, outside this courtroom or on the basis of any sympathy, prejudice, bias, or fear or favor for or against either party.296

Criminal Instructions While a committee of the New Hampshire Bar Association has drafted new criminal jury instructions for use in the state, they have not yet been formally approved.297 Unlike the prior instructions, which do not discuss extrinsic evidence in any detail,298 the draft instructions include the Internet in the pre-trial admonition to avoid trial publicity. Sixth, do not read about this case in the newspapers or on the internet or listen to any radio or television reports about the case or about anyone who has anything to do with it. If a newspaper head-line or news broadcast about the case catches your eye or ear, do not examine the article or watch or listen to the broadcast any further. The reporter may not have listened to all of the testimony, may be getting information from people who you will not see here in court under oath and subject to crossexamination, may emphasize an unimportant point, or may simply be wrong. In fact, until the trial is over, I suggest that you avoid reading any newspapers and avoid listening to any TV or radio newscasts at all. I do not know whether there might be any news reports of this case, but if there are, you might inadvertently find yourself reading or listening to something be-fore you could do 294. Lockwood v. State, Nos. 50864, 52615 (table), 2010 WL 3529416 (text) (Sept. 3, 2010) (superseding No. 50864, 2009 WL 4281270 [Nev. Nov. 23, 2009]). 295. N.H. Civ. Jury Instr. § 0.2 (2011). 296. N.H. Civ. Jury Instr. § 2.2 (2011). 297. Crim. Jury Instr. Drafting Comm., N.H. Bar Assn., Criminal Jury Instructions: Drafting Committee Version (Sept. 2010), at 2, available at http://www.nhbar.org/uploads/pdf/CJI.pdf. 298. The prior criminal instructions, adopted in 2005, speak only in general terms about what is evidence that a jury may consider in a case. See N.H. Crim. J. Inst. (1985) 1.01 – 1.03, 1.04a (2005), available at http://www.nhbar.org/legal-links/cji-1985.asp. Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age anything about it. If you want, you can have your spouse or a friend clip out any stories and set them aside to give you after the trial is over. I can assure you, however, that by the time you have heard the evidence Thus, you will know more about the matter than anyone will learn through the news media. If you inadvertently learn anything about this case, please let me know immediately. You must base your verdict solely and exclusively on the evidence received in court during the trial. Seventh, do not do any research, such as consulting dictionaries or other reference materials, and do not make any investigation about the case on your own.299

The admonition to “not watch or listen to any news reports concerning this trial on television or on radio and … not read any news accounts of this trial in a newspaper or on the internet” is repeated the in draft recess instruction.300

Cases In 2006, the New Hampshire Supreme Court rejected a rape convict’s appeal on the grounds that four blog posts by a juror violated the defendant’s right to an impartial jury.301 One of the comments mentioned the juror’s upcoming jury duty (Lucky me, I have Jury Duty! Like my life doesn’t already have enough civic participation in it, now I get to listen to the local riff-raff try and convince me of their innocence”),302 while the others generally conveyed the juror’s opinions regarding the police, drunk driving, and the death penalty for juveniles.303 The trial court’s individual voir dire of Juror 2 was comprehensive and thorough. … The trial court concluded that Juror 2 fairly and impartially reviewed the evidence and applied the law as instructed and was, therefore, qualified to sit on the jury panel. We cannot say that the trial court’s findings are against the weight of the evidence. Moreover, the record supports the trial court’s determination that the remaining jurors were not affected by the existence of Juror 2’s blog.304 In October 2009 a juror pleaded guilty to a violation and agreed to reimburse the court $1,200 in two days of payments to jurors after he told fellow jurors that the defendant in a sexual assault trial had prior convictions for molesting children, a fact that the juror found online.305 “If it’s someone’s third offense for driving while intoxicated, shouldn’t you know?” the juror said in a press interview. “If it’s a fourth theft charge, shouldn’t you know? Everybody should (be concerned) that jurors are not told everything.”306 299. N.H. Bar Ass’n. Crim. Jury Instr. Drafting Comm., Crim. Jury Instrs., supra, at 12. 300. Id. at 13. 301. State v. Goupil, 154 N.H. 208, 908 A.2d 1256 (2006). 302. Id. at 214, 908 A.2d at 1262. 303. As described by the court, Once he was seated on the defendant’s jury, but prior to the start of the trial, Juror 2 wrote: “After sitting through 2 days of jury questioning, I was surprised to find that I was not booted due to any strong beliefs I had about police, God, etc.” Prior to trial, Juror 2 also posted: (1) a photograph depicting a woman’s deformed face after she was hit by a drunk driver; and (2) a statement containing his views on a United States Supreme Court decision ruling against the death penalty for juveniles [Roper v. Simmons, 543 U.S. 551 (2005)]. During the defendant’s trial, Juror 2 made a blog entry that referenced an unrelated shooting incident in Atlanta. Id. at 214, 908 A.2d at 1262-63. 304. Id. at 220, 908 A.2d at 1267. 305. Annmarie Timmins, Juror behind mistrial pleads, pays $1,200, Concord [N.H.] Monitor, Oct. 10, 2009, http://www.concordmonitor.com/article/juror-behind-mistrial-pleads-pays-1200. 306. Annmarie Timmins, Juror becomes a defendant, Concord [N.H.] Monitor, Mar. 26, 2009, http:// www.concordmonitor.com/article/juror-becomes-defendant.

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New Jersey – Civil: Modern;  Criminal: Modern Civil Instructions New Jersey revised its preliminary civil jury charge in 2010 to admonish jurors to not research or communicate about the cases they are sitting on via the Internet and social media. While this case is pending, you are not to conduct any research or make any investigations on your own about the case. That is not your job. Your job is to decide the case based solely upon the evidence presented to all of you here in the court room. You should not review or seek out information about the issues in the case, the parties, the attorneys or the witnesses, either in traditional formats such as newspapers, books, advertisements, television or radio broadcasts or magazines or through the internet or other computer research. You also should not attempt to communicate with others about the case, either personally or through computers, cell phones, text messaging, instant messaging, blogs, Twitter, Facebook, Myspace, personal electronic and media devices or other forms of wireless communication. You should not go on the Internet or participate in or review any websites, Internet “chat rooms” or “blogs” nor should you seek out photographs or documents of any kind that in any way relate to this case. Why is this restriction imposed? You are here to decide this case based solely on the evidence — or lack of evidence — presented in this courtroom. Many of you regularly use the Internet to do research or to examine matters of interest to you. The information you are accessing is not evidence. One of the problems is that what you are examining may be wrong, incomplete, or inaccurate. That material may be outdated. Indeed, there often is no way to determine whether the information that we see on the Internet is correct. We must insist that, as a juror, you must not be influenced by any information outside of this courtroom. Otherwise, your decision may be based on material which only you, and none of your fellow jurors, know. This would unfairly and adversely impact the judicial process. We must make certain that all of you hear the same evidence. We must also make certain that each party has a fair opportunity to refute or explain evidence offered against it or that may be unfavorable to its case.307

An additional preliminary instruction specifically bars usage of cell phones and other electronic devices in courtrooms. If you have a cell phone, pager or other communication device, you must turn that device off while in the courtroom. When serving on a trial, you must turn off cell phones and other communication devices and cannot use them for any purpose when in the courtroom or the jury room. You will be given a telephone number at which you can be contacted during the trial. Unless instructed otherwise by me, the trial judge, you can use those devices only when outside the courtroom or jury room during recesses. When you are permitted to use such devices, you must remember, as I have instructed you, you may not use them in any way to conduct your own research or make any investigations about this case on your own, or to communicate with anyone about this case.308

Criminal Instructions In New Jersey’s criminal instructions, the preliminary instructions regarding voir dire have been modified to inform jurors that they will be asked “several questions that ask about your television and internet viewing habits, favorite news sources, and the like.”309

307. N.J. Model Civ. Jury Charges [NJ-JICIV] 1.11C (1998, rev. 2010), available via http://www.judiciary.state.nj.us/civil/civindx.htm. 308. NJ-JICIV 1.11I (2004, rev. 2007), available via http://www.judiciary.state.nj.us/civil/civindx.htm. 309. N.J. Model Crim. Jury Charges [NJ-JI CRIM], Non-2C Charges, Preliminary Instructions to the Jury (rev. 2010), available at http://www.judiciary.state.nj.us/criminal/charges/non2c017.pdf. Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age The criminal instructions for the start of trial include a lengthy discussion of Internet use by jurors: During the trial from time to time there shall be recesses. During any of those recesses I direct you not to discuss the case among yourselves, and when we recess overnight, you must not discuss the case or the testimony with any members of your family or any other persons or provide an account of your juror service to others, including through any electronic means, such as shared internet websites. Thus, for example, do not talk face to face or use any electronic device, such as the telephone, cell or smart phone, Blackberry, iPhone, PDA, computer, the Internet, e-mail, any text or instant message service, any Internet chat room, blog or website such as Facebook, MYSpace, YouTube, or Twitter, to communicate to anyone any information about this case. The reason of course is that you should not begin any deliberations until the entire case has been concluded, i.e., until you have heard all of the witnesses, the final arguments of counsel, and my instructions as to the law. It would be improper for any outside influence to intrude upon your thinking. If anyone should attempt to discuss the case with you, you should report the fact to me or my staff immediately. If you have a cell phone, pager, or any device that is capable of providing internet access and any device that may be used to record or transmit sound or images, whether video images or still images, you must turn that device off while in the courtroom. Similarly, you must turn off these communication devices and cannot use them for any purpose while in the jury deliberation room. You will be given a telephone number at which you can be contacted during the trial. Unless I otherwise instruct, you may only use these communication devices when you are outside the jury deliberation room during recesses. Please be mindful of these instructions at all times. *** Your deliberations should be based on the evidence in the case without any outside influence or opinions of relatives or friends. Additionally, I must instruct you not to read any newspaper articles, or search for, or research information relating to the case, including any participants in the trial, through any means, including electronic means. Do not do any research on the Internet, in libraries, in the newspapers, or any other manner – or conduct any investigation about this case. Do not visit or view any place discussed in this case and do not use Internet maps or Google Earth or any other program or device to search for or view any place discussed in the testimony. Also do not research any information about this case, the law, or – again – the people involved, including the parties, the witnesses, the lawyers, the judge, or the court personnel. Additionally, do not read any news stories or articles, in print, on the Internet, or in any blog about this case. I do not know if there will be any newspaper or other media coverage of this trial, but you are instructed to completely avoid reading, viewing or listening to any newspaper or media accounts or listening to anyone else discuss them. I am sure that you can understand why this instruction is so important. Newspaper and media accounts are not evidence, are often based upon second or third hand information, purely hearsay, not always accurate and not subject to examination by the attorneys. I have no way to monitor you in this area but must rely upon your good faith and the fact that you have been sworn to comply with the instructions of the court so that both sides may receive a fair trial. Because this instruction is so important, it is my duty to remind you of it at the end of each day’s proceedings.310

Cases In an aggravated manslaughter case, a juror reported to the judge that another juror had announced to her fellow jurors that she had researched the defendants, the victims, and the possible sentence for conviction on the Internet, but had not revealed the results of her research. The complaining juror added that the other juror had also read—and tried to hide— 310. NJ-JI CRIM Non-2C Charges, Instructions After Jury Is Sworn (rev. 2011), available at http:// www.judiciary.state.nj.us/criminal/charges/non2c014.pdf. See also Super. Ct. of N.J., Policy Regulating Jurors’ Use of Electronic Devices During Juror Service (memorandum, Mar. 17, 2010), available at http://www.judiciary.state.nj.us/jury/juror_wireless_use.pdf.

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Jury Instructions for the Modern Age a newspaper in the jury room, and had announced at the start of deliberations that she had already made her decision, and held up a piece of paper with her decision. While the juror in question denied doing research on the Internet and said that she had seen only a headline about the case in the newspaper, four jurors confirmed that the juror said either that she had done research online or knew where such research could be done online. But only one of these jurors recalled the emotional juror mentioning anything she found in that research; the juror said that she had mentioned the possible sentence for the original murder charges in the case. The trial court replaced that juror in question with an alternate, based on the juror’s failure to admit her apparent violation of the court’s instructions. But he denied a mistrial, holding that the remaining jurors were not tainted. The appeals court disagreed with this assessment, concluding that “juror 14’s misconduct tainted the jury as a whole.”311 As this article went to press, a judge declared a mistrial after jurors deliberating in a criminal case accusing a pastor of sexual assault of a teenage girl in his congregation reported to the court that one juror had handed out the results of his Wikipedia research on the definition of a legal term. The jury had been repeatedly admonished not to do online research.312

New Mexico – Civil: Modern;  Criminal: Modern Civil Instructions New Mexico’s civil instruction on juror conduct was amended in 2011 to admonish jurors not to do Internet research.313 After the changes, it reads as follows: Your job is to find and determine the facts in this case, which you must do solely upon the evidence received in court. There are a number of important rules governing your conduct during the trial. *** Fifth, do not consider anything you may have read or heard about the case outside the courtroom. During the trial and your deliberations, avoid news accounts of the trial, whether on radio, television, in the newspaper, on the internet or elsewhere. If you happen to see or hear any news account of the trial, please report that fact to a member of the staff. Sixth, do not attempt any research, tests, experiments, visits to any locations involved in this case, or other investigation, including on the internet. It would be difficult or impossible to duplicate conditions shown by the evidence; therefore, your results would not be reliable. Such conduct also runs contrary to the rule that your verdict must be based solely upon the evidence presented to you. Nonetheless, in your deliberations, you need not ignore your backgrounds, including professional, vocational, and educational experience. Seventh, because you are only to consider the evidence presented in the trial in this case, you may not use your computer or phone or other electronic device at any time to do any research on any issue arising in the trial or jury deliberations, or to comment on what is happening in the trial or jury deliberations. Specifically, you may not text-message or go to or use any social networking sites, including, but not limited to, Facebook, MySpace, LinkedIn, Twitter, and/or YouTube. Don’t use internet dictionaries, Wikipedia, or any other source of information. You may rely only on the evidence presented in the trial in this case.314 311. New Jersey v. Scott, 2009 WL 2136273, 2009 N.J. Super. Unpub. LEXIS 1901 (N.J. Super., App. Div. July 20, 2009), certification certif. denied, 200 N.J. 504, 983 A.2d 1111 (N.J. Nov. 10, 2009) (table). 312. Kibret Markos, Mistrial declared in Mahwah pastor’s sex-assault case, The [Bergen County, N.J.] Record, July 7, 2011, http://www.northjersey.com/news/crime_courts/Mistrial_declared_in_pastors_sex-assault_case.html. 313. See N.M. Uniform Jury Instr. – Civ. [NMUJI – Civ.] 13-110 (2011) (as modified by 2011 N.M. Ct. Order 0011 [eff. March 25, 2011]), available at http://www.nmcompcomm.us/nmrules/ NMRules/13-110_1-19-2011.pdf. 314. NMUJI – Civ. 13-110 (2011) (as modified by 2011 N.M. Ct. Order 0011 [eff. March 25, 2011]), available Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age The civil recess instruction tells jurors to report any exposure to “news accounts of this trial,” but does not mention any specific types of media, including no mention of the Internet.315

Criminal Instructions New Mexico’s criminal jury instruction on juror conduct, which already included the Internet in the admonition to avoid coverage of the case, was amended in 2011 to give more specifics about prohibited activities online. You must decide the case solely upon the evidence received in court. You must not consider anything you may have read or heard about the case outside the courtroom. During the trial and your deliberations, you must avoid news accounts of the trial, whether they be on radio, television, the internet or in a newspaper or other written publication. … You must decide the case solely upon the evidence received in court. You must not consider anything you may have read or heard about the case outside the courtroom. During the trial and your deliberations, you must avoid news accounts of the trial, whether they be on radio, television, the internet or in a newspaper or other written publication. You must not visit the scene of the incident on your own. You cannot make experiments with reference to the case. You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in this case, and the individuals or corporations involved in the case. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Do not try to find out information from any source outside the confines of this courtroom. Until you retire to deliberate, you may not discuss this case with anyone, even your fellow jurors. After you retire to deliberate, you may begin discussing the case with your fellow jurors, but you cannot discuss the case with anyone else until you have returned a verdict and the case is at an end. I know that many of you use cell phones, the internet, and other tools of technology. You also must not talk to anyone about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone or any other device that can access the internet through email, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, such as        (insert current examples of social networking sites, such as Facebook, My Space, LinkedIn, or YouTube). During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, computer, or any other device that can access the internet; the internet, any internet service, or any text or instant messaging service; or any internet chat room, or by way of any other social networking websites, such as        (insert current examples of social networking sites, such as Facebook, My Space, LinkedIn, YouTube, or Twitter), to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.316

The recess instruction for criminal trials was similarly amended,317 but a separate juror conduct instruction for use in juvenile criminal proceedings has not been updated to include language regarding the Internet.318 at http://www.nmcompcomm.us/nmrules/NMRules/13-110_1-19-2011.pdf. 315. NMUJI – Civ. 13-201 (2005). 316. N.M. Uniform Jury Instr. – Crim. [NMUJI – Crim.] 14-101 (2011) (as modified by 2011 N.M. Ct. Order 0013 [eff. March 25, 2011]), available at http://www.nmcompcomm.us/nmrules/ NMRules/14-101_1-24-2011.pdf. 317. NMUJI – Crim.14-114 (2010, modified 2011) (as modified by 2011 N.M. Ct. Order 0013 [eff. March 25, 2011]), available at http://www.nmcompcomm.us/nmrules/NMRules/14-114_1-24-2011.pdf. 318. NMUJI – Crim. 14-9002 (2001).

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New York – Civil: Modern;  Criminal: Modern Civil Instructions New York’s jury instructions for civil trials admonish jurors to not discuss or research the case online, and specifically mention several Internet sites and services. Since this case involves something that happened at a particular location, you may be tempted to visit the location yourself. Please do not do so. Even if you happen to live near the location, please avoid going to it or past it until the case is over. In addition, please do not attempt to view the scene by using computer programs such as Google Earth. Viewing the scene either in person or through a computer program would be unfair to the parties, since the location as it looked at the time of the accident and as it looks now may be very different. This case involves a location as it existed at the time of the accident, not as it exists today. Thus, you should rely on the evidence that is presented here in court to determine the circumstances and conditions under which the accident occurred. Also, in making a visit without the benefit of explanation, you might get a mistaken impression on matters not properly before you, leading to unfairness to the parties who need you to decide this case based solely upon the evidence that is relevant to this matter.319

One of the instructions is almost apologetic for these restrictions, and explains the rationale for them. … Please do not discuss this case either among yourselves or with anyone else during the course of the trial. Do not do any independent research on any topic you might hear about in the testimony or see in the exhibits, whether by consulting others, reading books or magazines or conducting an internet search of any kind. All electronic devices including any cell phones, Blackberries, iphones, laptops or any other personal electronic devices must be turned off while you are in the courtroom and while you are deliberating after I have given you the law applicable to this case. [In the event that the court requires the jurors to relinquish their devices, the charge should be modified to reflect the court’s practice] It is important to remember that you may not use any internet services, such as Google, Facebook, Twitter or any others to individually or collectively research topics concerning the trial, which includes the law, information about any of the issues in contention, the parties, the lawyers or the court. After you have rendered your verdict and have been discharged, you will be free to do any research you choose, or to share your experiences, either directly, or through your favorite electronic means. For now, be careful to remember these rules whenever you use a computer or other personal electronic device during the time you are serving as a juror but you are not in the courtroom. While this instruction may seem unduly restrictive, it is vital that you carefully follow these directions. The reason is simple. The law requires that you consider only the testimony and evidence you hear and see in this courtroom. Not only does our law mandate it, but the parties depend on you to fairly and impartially consider only the admitted evidence. To do otherwise, by allowing outside information to affect your judgment, is unfair and prejudicial to the parties and could lead to this case’s having to be retried. Accordingly, I expect that you will seriously and faithfully abide by this instruction.320

Criminal Instructions

New York’s official criminal jury instructions321 include a set of “Jury Admonitions In Preliminary Instructions” that incorporate specific – and adamant – prohibitions against juror use of the Internet during trial, and an admirable explanation of why these restrictions are necessary. 319. Comm. on Pattern Jury Instr., Ass’n of Justices of the Supreme Ct. of the State of N.Y., N.Y. Pattern Jury Instr.—Civil [NY PJI-Civ.] 1:10 (2011). 320. NY PJI-Civ. 1:11 (2011). 321. New York law specifically requires that the jury be instructed prior to trial and recesses about “its baReynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age Our law requires jurors to follow certain instructions in order to help assure a just and fair trial. I will now give you those instructions. *** 4. Do not visit or view the premises or place where the charged crime was allegedly committed, or any other premises or place involved in the case. And you must not use internet maps or Google Earth or any other program or device to search for and view any location discussed in the testimony. 5. Do not read, view or listen to any accounts or discussions of the case reported by newspapers, television, radio, the internet, or any other news media. 6. Do not attempt to research any fact, issue, or law related to this case, whether by discussion with others, by research in a library or on the internet, or by any other means or source. In this age of instant electronic communication and research, I want to emphasize that in addition to not conversing face to face with anyone about the case, you must not communicate with anyone about the case by any other means, including by telephone, text messages, email, internet chat or chat rooms, blogs, or social websites, such as Facebook, MySpace or Twitter. You must not provide any information about the case to anyone by any means whatsoever, and that includes the posting of information about the case, or what you are doing in the case, on any device, or internet site, including blogs, chat rooms, social websites or any other means. You must also not Google or otherwise search for any information about the case, or the law which applies to the case, or the people involved in the case, including the defendant, the witnesses, the lawyers, or the judge. Now, ladies and gentlemen, I want you to understand why these rules are so important: Our law does not permit jurors to converse with anyone else about the case, or to permit anyone to talk to them about the case, because only jurors are authorized to render a verdict. Only you have been found to be fair and only you have promised to be fair – no one else has been so qualified. Our law also does not permit jurors to converse among themselves about the case until the Court tells them to begin deliberations because premature discussions can lead to a premature final decision. Our law also does not permit you to visit a place discussed in the testimony. First, you cannot always be sure that the place is in the same condition as it was on the day in question. Second, even if it were in the same condition, once you go to a place discussed in the testimony to evaluate the evidence in light of what you see, you become a witness, not a juror. As a witness, you may now have an erroneous view of the scene that may not be subject to correction by either party. That is not fair. Finally, our law requires that you not read or listen to any news accounts of the case, and that you not attempt to research any fact, issue, or law related to the case. Your decision must be based solely on the testimony and other evidence presented in this courtroom. It would not be fair to the parties for you to base your decision on some reporter’s view or opinion, or upon information you acquire outside the courtroom. These rules are designed to help guarantee a fair trial, and, our law accordingly sets forth serious consequences if the rules are not followed. I trust you understand and appreciate the importance of following these rules and, in accord with your oath and promise, I know you will do so.322 sic functions, duties and conduct,” and that “[s]uch instructions must include, among other matters, admonitions that the jurors may not converse among themselves or with anyone else upon any subject connected with the trial; that they may not read or listen to any accounts or discussions of the case reported by newspapers or other news media;[and] that they may not visit or view the premises or place where the offense or offenses charged were allegedly committed or any other premises or place involved in the case…” N.Y. Crim. Pro. Law [NY CPL] § 270.40 (2011); see also NY CPL § 310.10 (2011) (extending requirement to recesses). 322. N.Y. Crim. Instr. 2d [NY CJI 2d], Jury Admonitions (rev. May 5, 2009), http://www.nycourts.gov/

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Jury Instructions for the Modern Age The recess instruction repeats much of this language.323

Cases In 2007, New York’s Appellate Division held that while a juror’s obtaining weather information from the Internet was misconduct, it was immaterial and did not create a substantial risk of prejudice requiring the court to set aside a drug sale conviction.324 In 2009, a trial court denied a defense motion to set aside a guilty verdict in a rape case based on a juror who conducted Internet search research on the defense attorney, and who also discussed the case with others during trial.325 In a 2010 case, a juror sent a “friend” request on Facebook to a fireman who testified in the case in which she was sitting. While the trial judge called the juror’s action “unquestionably a serious breach of her obligations as a juror and a clear violation of the court’s instructions,” she rejected a defense motion to set aside convictions for criminally negligent homicide and reckless endangerment on that basis.326 In June 2011, a juror in a rape trial pleaded guilty to criminal contempt and was fined $1,000 after he sent two e-mails to a friend who was a prosecutor in another county, causing the judge to declare a mistrial. The first e-mail, with the subject “Juror #5 reporting to you live,” described the physical conditions of the jury deliberation room. The second said that the jury was deadlocked five to seven in favor of acquittal.327

North Carolina – Civil: Modern;  Criminal: Modern Civil Instructions The recess admonition in North Carolina’s civil instructions includes the Internet and social media in the admonitions against discussing and accessing information about a case. The instruction also gives a rationale for the restrictions. Members of the jury, we will now take a (state length) recess. During this recess [and any other recess that we have while this trial is in progress], I instruct you that it is your duty to carefully observe the cautions I am now going to give you. During the course of the trial you should not talk with each other about the case. You may only talk with each other about the case at the end of the trial when you go to the jury room to consider your verdict. It may be difficult for you to understand why you may not discuss this case among yourselves until it is finally submitted to you. It would be unfair to discuss the case among yourselves before you receive everything necessary to reach an informed decision. Until you are instructed to begin deliberations on your verdict, you should not form or express any opinion about the case. You should not talk or have contact of any kind with any of the parties, attorneys or witnesses. You should not talk to anyone else or allow anyone else to talk with you or in your presence about the case. If anyone cji/1-General/CJI2d.Jury_Admonitions.pdf. Note that the Internet version of NY CJI 2d is the official version; see NY CJI 2d, Preface, http://www.nycourts.gov/cji/0-TitlePage/1-Preface.html. 323. NY CJI 2d, Jury Separation During Deliberations (rev. Dec. 17, 2009), http://www.nycourts.gov/cji/1General/CJI2d.Jury_Separation_Rev.pdf; see also NY CPL § 310.10 (2011) (extending requirement to recesses). 324. People v. Lara, 44 A.D.3d 488, 843 N.Y.S.2d 311 (N.Y. Sup. Ct., App. Div. 2007). 325. People v. Jamison, 24 Misc.3d 1238(A), 899 N.Y.S.2d 62 (table), 2009 WL 2568740, 2009 N.Y. Slip Op. 51800(U) (text) (N.Y. Sup. Ct. 2009) (unreported). Among the outsiders with whom the juror discussed the case was an attorney, who reported the incident to the court. Id. at *2. 326. People v. Rios, 26 Misc.3d 1225(A), 907 N.Y.S.2d 440 (table), 2010 WL 625221 (N.Y. Supp.), 2010 N.Y. Slip Op. 50256(U) (text) (unreported) (N.Y. Sup. Ct. 2010) (setting aside convictions on other grounds). 327. Thomas Zambito, Juror gets $1000 fine for sending email during rape case, causing mistrial, N.Y. Daily News, June 15, 2011, http://www.nydailynews.com/ny_local/2011/06/15/2011-06-15_juror_ gets_1000_fine_for_sending_email_during_rape_case_causing_mistrial.html. Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age attempts to communicate with you about the case you must notify the bailiff immediately. If that person persists, simply walk away and notify the bailiff. In this age of instant electronic communication and research, I want to emphasize that in addition to not speaking face-to-face with anyone about the case, you should not engage in any form of electronic communication about the trial, including but not limited to: Twitter, blogging, Facebook, text messaging, instant messaging, computer gaming, and any other such means of electronic communication. Any such discussion could lead to a mistrial and would severely compromise the partiesâ&#x20AC;&#x2122; right to a fair trial. You should explain this rule prohibiting discussion of the case to your family and friends. (When the trial is over) (When your jury duty is completed), you will be released from this instruction. At that time, you may, but are not required to, discuss the case and your experiences as a juror. You should avoid watching, reading or listening to any accounts of the trial that might come from any news media. That is, you should not read, listen, or watch anything about it that might be in the newspaper, or on the Internet, radio, or television. Media reports may be incomplete or inaccurate. You may only consider and decide this case upon the evidence received at the trial. If you acquire any information from an outside source, you must not report it to other jurors and you must disregard it in your deliberations. In addition, you should report the outside source of information to the bailiff or to the court at the first opportunity. While the trial is going on, you must not go to (state place where case arose) or make any independent inquiry or investigation about this matter, including, but not limited to, any Internet or other kind of research. You are prohibited from performing your own experiments as well. This case involves the scene and events as it existed at the time, not as it exists today. Viewing the scene, pictures or other materials without the benefit of explanation in court is unfair to the parties who need you to decide this case solely upon the evidence that is admitted in this case. If you base your verdict on anything other than what you learn in this courtroom, that could be grounds for a mistrial-which means that all of the work that you and your fellow jurors put into this trial will be wasted, and the lawyers, the parties, and a judge will have to do this all over again. If you communicate with others in violation of my orders, you could be held in contempt of court. Thatâ&#x20AC;&#x2122;s why this is so important. After you have rendered your verdict, or have been otherwise discharged by me, you will be free to do any research you choose, or to share your experiences either directly or through your favorite electronic means. You must keep all cell phones turned off when you are in the courtroom or the jury room. While the trial is in progress, you may only talk on a cell phone during a recess outside of the jury room. If, during the trial, issues arise that would affect your ability to pay attention and sit as a fair and impartial juror, you may explain the matter to the bailiff who will inform me. At any time if you cannot hear a witness, an attorney, or me, please make that fact known immediately by raising your hand.328

The instruction for subsequent recesses reiterates these admonitions: Members of the jury, we will now take a (state length) recess. I remind you to observe during this recess the rules that I gave you earlier. Do not talk or communicate with each other or with anyone else about any matter connected with this case or allow anyone to talk about it in your presence. Do not talk to or have any contact with any of the parties, attorneys or witnesses. Do not conduct any investigation, or receive or attempt to receive any reports or information related to this case from any source, including the media, the Internet, social networking or any other means. Do not form or express any opinion about this case. [Do not go to any location mentioned in the evidence. If your routine course of travel to or from the courthouse takes you past any such location, remember that you must not conduct any independent investigation about any matter connected with this trial.]329

But there is no general civil instruction regarding use of the Internet and social media during trial. 328. N.C. Pattern Instr., Civ. 100.20 (2010). 329. N.C. Pattern Instr., Civ. 100.21 (2010).

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Criminal Instructions North Carolina’s criminal instruction includes an admonition against Internet use. The admonitions to be given to a jury in a criminal case are specified in N.C. Gen. Stat. § 15A-1236, which requires that judges tell jurors to not discuss the case or express any opinion about the case “except in the jury room after their deliberations have begun;” to not participate in or listen to a discussion about the case with others, including parties, witnesses, or counsel; and “[t]o avoid reading, watching, or listening to accounts of the trial.”330 These admonitions are expressed in the instruction to a jury once it has been impaneled. This instruction has been updated to mention a number of specific social media services. Finally, before you retire to consider your verdict, you must obey the following rules: First, you must not talk about the case amongst yourselves. The only place this case may be discussed is in the jury room and then only after you begin your deliberations. Second, you must not talk about this case with anyone else (including members of your families) or allow anyone else to talk with you or say anything in your presence about this case. If anyone communicates or attempts to communicate with you or in your presence about this case, you must notify the bailiff of that fact immediately. In this age of instant electronic communication and research, I want to emphasize that in addition to not speaking face-to-face with anyone about the case, you should not engage in any form of electronic communication about the trial, including but not limited to: Twitter, blogging, Facebook, text messaging, instant messaging, and any other such means of electronic communication. Third, you must keep all cell phones turned off when you are in the courtroom or the jury room. Fourth, while you sit as a juror in this case, you are not to form an opinion about the guilt or innocence of the defendant, nor are you to express to anyone any opinion about the case until I tell you to begin your deliberations. Fifth, you must not talk or communicate in any way with any of the parties, attorneys, or witnesses involved in the case. This rule applies inside as well as outside the courtroom, and it prohibits any type of conversation, whether about the evidence in this case or about the weather, or just to pass the time of day. Sixth, you must not read or listen to any news media coverage of this case or trial, including television, newspaper, radio, or Internet accounts. Newspaper, radio, television, and Internet accounts may be inaccurate, or they may contain references to matters which are not proper for your consideration. Your verdict must be based solely on the evidence presented during this trial and no other source. Seventh, you must not visit the scene or place that is the subject matter of this trial or make any independent inquiry or investigation about this matter. You may not conduct any research, including Internet research, to look for any information regarding the case. Each of you must obey each of these rules to the letter. Unless you do so, there is no way the parties can be assured of absolute fairness and impartiality. It is your duty, while the trial is in progress, or while it is in recess, or while you are in the jury room, to see that you remain a fair and impartial trier of the facts. If you violate these rules, you violate an order of the court and this is contempt of court and could subject you to punishment as provided by law.331

The admonitions for first and subsequent recesses use the same language as the civil instructions.332

330. N.C. Gen. Stat. § 15A-1236 (2010). 331. N.C. Patt. Instr., Crim. [N.C.P.I. Crim.] 100.25 (2010). 332. N.C.P.I. Crim. 100.31 (2010) (first recess); N.C.P.I. Crim. 100.33 (2010) (subsequent recesses). Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age The criminal instructions also include an instruction for grand juries telling them that their oath “precludes now and forevermore any comment or publicity on what goes on in the grand jury room.”333 But this instruction does not specifically address use of any specific media of communication, including the Internet or social media.334

North Dakota – Civil: Archaic;  Criminal: Archaic Civil Instructions North Dakota’s civil pattern jury instructions do not contain any specific provisions relating to jurors’ responsibility to avoid discussion and media coverage of cases.335 The overview for the instructions adds, “Following the instructions on damages, the Judge instructs the Jury on the handling of the evidence they have received and finally with regard to their duties in retirement and in the forms of verdict to be considered.”336 Courts are also instructed to give instructions on “the conduct of the Jurors in retirement.”337

Criminal Instructions North Dakota’s criminal instructions also fail to admonish jurors regarding discussing or reading media coverage of cases.338 The introductory commentary states, “the Jurors should be instructed [on] handling the evidence – such as Weight of Evidence and Credibility of Witnesses, Impeachment of Witnesses, and Presumptions.”339 The state’s court rules also require that “[i]mmediately after the jury is sworn the court may give instructions concerning … jury duties and conduct … [and] … elementary legal principles governing the proceedings.”340

Ohio – Civil: Modern;  Criminal: Modern Civil Instructions Included in Ohio’s preliminary jury instructions for civil trials are a series of admonitions to the jury about their activities and interaction with the media during trial, including use of the Internet and social networks. 1. FAIR AND ATTENTIVE. … Do not discuss this case among yourselves or with anyone else. This includes family, friends, and the media. You must not post anything about this case on the internet or any electronic device including cell phones. This would include blogs and social networking such as MySpace, Facebook, Twitter, and others. Any such discussion, if discovered, could lead to a mistrial and would severely compromise the parties’ right to a fair trial. …

333. N.C.P.I. Crim. 100.10(7) (2010). 334. Id. 335. See N.D. Pattern Jury Instr. – Civ. [NDJI - Civil] (2008), available via http://www.sband.org/Pattern_Jury_Instructions/index.asp. 336. NDJI – Civil (2008), Overview, ¶ 10, available at http://www.sband.org/Pattern_Jury_Instructions/ overview.asp. 337. Id. 338. N.D. Pattern Jury Instr. – Criminal [NDJI – Criminal] (2008), available via http://www.sband. org/Pattern_Jury_Instructions/index.asp. 339. NDJI – Crim. (2008), Overview, ¶ 6, available via http://www.sband.org/Pattern_Jury_Instructions/ overview.asp. 340. N.D. R. Crim. Pro. 30(b)(3)(A),(C) (2006, 2011 supp.), available at http://www.ndcourts.gov/court/ rules/criminal/rule30.htm; see also N.D. R. Civ. Pro. 51(b)(3)(A),(C) (2005, 2011 supp.), available at http://www.ndcourts.gov/court/rules/CIVIL/rule51.htm.

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Jury Instructions for the Modern Age 2. AMONG YOURSELVES. Perhaps more difficult for you to understand is that you may not discuss this case among yourselves until it is finally submitted to you. … It would be unfair to discuss the case among yourselves before you receive everything necessary for your decision. 3. DO NOT DISCUSS OUTSIDE COURT. You should explain this rule prohibiting discussion of the case to your family and friends. When (the trial is over) (your jury duty is completed), you will be released from this instruction. At that time, you may, but are not required to, discuss the case and your experiences as a juror. 4. REPORT VIOLATION. You are instructed not to talk with the attorneys, parties, witnesses, or anyone else during the trial. Likewise, they must not talk with you. You must also not talk with anyone else about this case during the trial. If anyone should attempt to discuss the case with you, report the incident to me or to the bailiff immediately. 5. WARNING. Do not investigate or attempt to obtain additional information about this case from any source outside the courtroom. (This includes visiting the scene of the event or viewing pictures obtained on your own, including those obtained on the internet, such as Google Earth. This case involves the scene as it existed at the time, not as it exists today. Viewing the scene, pictures, or other materials without the benefit of explanation in court is unfair to the parties who need you to decide this case solely upon the evidence that is admitted in this case.) You are prohibited from performing your own experiments and conducting your own research, including internet research. Such information may be incomplete, inaccurate, or irrelevant to the issues in this case. It is vital that you carefully follow these instructions. The reason is simple. The law requires that you consider only the testimony and evidence you hear and see in this courtroom. 6. NEWSPAPER, RADIO, AND TV. You may consider and decide this case only upon the evidence received at the trial. If you acquire any information from an outside source, you must report it to the bailiff immediately. You are instructed not to read, view, or listen to any report in the newspaper, radio, or television on the subject of this trial; do not permit anyone to read or comment upon them to you or in your presence. Media reports may be incomplete or inaccurate. You may consider and decide this case only upon the evidence received at the trial. If you acquire any information from an outside source, you must not report it to other jurors and you must disregard it in your deliberations. In addition, you should report the outside source of information to the bailiff or to the court at the first opportunity. *** 8. VIOLATION. Any violation of these orders may require a new trial and may subject those involved to sanctions, including contempt of court.341

Criminal Instructions These same admonitions constitute the preliminary instruction for criminal trials, with the “fair and attentive” admonition labeled a “required admonition,”342 which must be given under a provision of Ohio’s criminal procedure code.343 The criminal recess instruction repeats the required and other admonitions in shorter form.344 In addition, the instructions for the sentencing phase in aggravated murder cases include a reminder to jurors “not to watch, read, listen to, or discuss news media accounts of this case.”345 341. Ohio Judicial Conf., 1 Ohio Jury Instr., Civ. [OJI CV] 301.07 (2011). 342. Ohio Judicial Conf., 2 Ohio Jury Instr., Crim. [OJI CR] 401.09 (2011). 343. See Ohio Rev. Code § 2945.34 (2011). 344. OJI CR 401.11 (2011). 345. OJI CR 503.011 (2011). Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age In May 2010, the Ohio Bar Association, which has its own set of jury instructions, revised its admonition to cover not only the Internet and social media, but also to caution jurors against using notions of the law gleaned from popular television programs: 2. WARNING ON OUTSIDE INFORMATION. In addition, you absolutely must not try to get information from any other source. The ban on sources outside the courtroom applies to information from all sources such as family, friends, the Internet, reference books, newspapers, magazines, television, radio, a computer, a Blackberry, iPhone, smart phone, and any other electronic device. This ban on outside information also includes any personal investigation, including visiting the site, looking into news accounts, talking to possible witnesses, re-enacting the allegations in the (Complaint)(Indictment), or any other act that would otherwise affect the fairness and impartiality that you must have as a juror. 3. WARNING ON OUTSIDE INFLUENCE. The effort to exclude misleading outside influences information also puts a limit on getting legal information from television entertainment. This would apply to popular TV shows such as Law and Order, Boston Legal, Judge Judy, older shows like L.A. Law, Perry Mason, or Matlock, and any other fictional show dealing with the legal system. In addition, this would apply to shows such as CSI and NCIS, which present the use of scientific procedures to resolve criminal investigations. These and other similar shows may leave you with an improper preconceived idea about the legal system. As far as this case is concerned, you are not prohibited from watching such shows. However, there are many reasons why you cannot rely on TV legal programs, including the fact that these shows: (1) are not subject to the rules of evidence and legal safeguards that apply in this courtroom, and (2) are works of fiction that present unrealistic situations for dramatic effect. While entertaining, TV legal dramas condense, distort, or even ignore many procedures that take place in real cases and real courtrooms. No matter how convincing they try to be, these shows simply cannot depict the reality of an actual trial or investigation. You must put aside anything you think you know about the legal system that you saw on TV. 4. WARNING ON OUTSIDE CONTACT. Finally, you must not have contact with anyone about this case, other than the judge and court employees. This includes sending or receiving e-mail, Twitter, text messages or similar updates, using blogs and chat rooms, and the use of Facebook, MySpace, LinkedIn, and other social media sites of any kind regarding this case or any aspect of your jury service during the trial. If anyone tries to contact you about the case, directly or indirectly, do not allow that person to have contact with you. If any person persists in contacting you or speaking with you, that could be jury tampering, which is a very serious crime. If anyone contacts you in this manner, report this to my bailiff or me as quickly as possible.346

Other After a Feb. 11, 2010 workshop on new media technologies and the courts, Ohio Supreme Court Justice Judith Ann Lanzinger said that the court was probably going to have to reexamine the state’s rules on broadcasting of court proceedings.347  The current rule, which was last revised in 1997, limits use of “visible audio recording equipment” to “news media reporters with the prior permission of the judge.”348 In the meantime, some courts in Ohio have acted on their own. In February 2011, the Ohio Common Pleas Court in Erie County banned most cell phones from its courthouse in Sandusky, with exceptions for lawyers, judges, court personnel, law enforcement of 346. Ohio St. Bar Ass’n. Jury Instrs., Jury Admonition, available at http://tinyurl.com/3aj4xqq. 347. Laura A. Bischoff, Judges combat Twitter, Facebook use by jurors during trials, Dayton [Ohio] Daily News, Feb. 12, 2010, http://www.daytondailynews.com/news/ohio-news/judges-combat-twitter-facebook-use-by-jurors-during-trials-544464.html; Social media may change Ohio courts broadcast rule, Associated Press, Feb. 11, 2010, available at http://www.daytondailynews.com/news/ohio-news/ social-media-may-change-ohio-courts-broadcast-rule-543739.html. 348. Ohio Sup. R. 12 (2011), available at http://www.sconet.state.oh.us/LegalResources/Rules/superintendence/Superintendence.pdf.

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Jury Instructions for the Modern Age ficers, and journalists.349 The Lucas County courthouse imposed a similar ban in 2008, with similar exceptions.350

Cases A man convicted of drowning his wife in a bathtub sought a new trial in March 2011, arguing, among other errors, that during the trial the sister of a juror had “liked” a Facebook page supporting his conviction, which caused it to appear in the “newsfeed” of the juror’s Facebook home page.351 He also argued that the juror’s posting on Facebook of a video featuring a bathtub on her Facebook page was also evidence of misconduct.352 The juror denied this, saying in an affidavit that “I followed the Court’s instructions and did not communicate any information about the case or do any research. I avoided reading any information about the case from any source, including social media, electronic communications, the Internet or any other media. … To my knowledge and understanding, I complied with Judge Bronson’s instructions and did not form or express any opinions about the case, until the jury began deliberations.”353 The motion was denied.354

Oklahoma – Civil: Modern;  Criminal: Modern Civil Instructions Oklahoma’s cautionary instruction for civil juries was revised in 2008 to mention the Internet in the admonition against reading or viewing coverage of the case. The instruction also gives a brief rationale for the restriction. It is your duty to determine the facts of this case from the evidence produced in open court. You should consider only the evidence introduced while the court is in session. … Do not read newspaper reports or obtain information from the internet about this trial or the issues, parties or witnesses involved in this case, and do not watch or listen to television or radio reports about it. Do not attempt to visit the scene or investigate this case on your own. The reasons for these rules are that it is essential that you should keep your minds free and open at all 349. Richard Payerchin, Erie County Courthouse bans all cell phones, laptops, iPods, Morning Journal, Feb. 3, 2010, http://www.morningjournal.com/articles/2010/02/03/news/erie_huron/mj2249546.txt. I have criticized other courts’ cell phone policies with similar “double standards.” See Eric P. Robinson, New York Attorneys Want Devices in Federal Court, But Only for Themselves, Citizen Media L. Proj. Blog, July 27, 2009, http://www.citmedialaw.org/blog/2009/new-york-attorneys-want-devices-federal-court-only-themselves. 350. Erica Blake, 1st day of ban on cell phones clicks at Lucas County courthouse, Toledo [Oh.] Blade, July 2, 2008, http://www.toledoblade.com/local/2008/07/02/1st-day-of-ban-on-cell-phones-clicksat-Lucas-County-courthouse.html. 351. Jessica Noll, Widmer defense: Juror exposed to anti-Widmer Facebook page, WCPO.com, Mar. 23, 2011, http://www.wcpo.com/dpp/news/widmer-defense%3A-juror-exposed-to-anti-widmer-facebookpage-. If granted, the new trial would have been the fourth in the case. The conviction in the first trial was vacated after it was discovered that several jurors had conducted experiments to test some of the factors in the case. See Denise G. Callahan, Defense asks judge to acquit Ryan Widmer, Dayton [Oh.] Daily News, Mar. 5, 2011, http://www.daytondailynews.com/news/dayton-news/defense-asks-judgeto-acquit-ryan-widmer-1097620.html. The second trial ended in a hung jury. Id. 352. Id. 353. Id. 354. Docket, Ohio v. Widmer, Case No. 08CR25254 (Ohio C.P. Ct., Warren County decision Mar. 25, 2011) (denying motion for new trial), docket available at http://www.co.warren.oh.us/clerkofcourt/search/ detail.asp?A5CRCD=08CR25254. The defendant has filed an appeal of his conviction. Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age times throughout this trial and that you should not be influenced by anything except the evidence you hear and see in the courtroom.355

But the admonition against discussing the case does not mention social media.356

Criminal Instructions

After amendments in January 2011,357 the instructions for criminal trials mention electronic communication in the admonitions against discussing the case. They are a bit more specific in the admonitions against independent research. The first of these is in the instructions prior to voir dire. From this point until the conclusion of this trial, do not discuss this case with any other person, including family and friends. You should not read or listen to any media discussing this case nor research this case through the internet or any other tools of technology. Nor should you use any of these means to communicate to others about the case. It is important that this case be decided solely on the evidence you receive in this courtroom.358 There is a lengthier discussion of these restrictions in the instructions given to the seated jurors at the start of trial. Throughout the trial you should remain alert and attentive. Do not form or express an opinion on the case until it is submitted to you for your decision. Do not discuss this case among yourselves until that time. Do not tell anybody about the case, discuss this case with anyone else, or permit anyone else to discuss this case in your presence. This includes either in person or by electronic, telephonic or any other means. Do not talk to the attorneys, the defendant(s), or the witness(es). If anyone should attempt to discuss this case with you, report the incident to me or to the bailiff immediately. This case must be decided solely upon the evidence presented to you in this courtroom, free from any outside influence. This means that during the trial you must not conduct any independent research about the case, the matters in the case, the individuals, witnesses, attorneys, or organizations in the case. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about the case or to help you decide the case. Do not read newspaper reports or obtain information from any other source about this trial or the issues, parties or witnesses involved in this case, and do not watch or listen to television or radio reports about it. Do not attempt to visit the scene or investigate this case on your own.359 355. Ok. Uniform Jury Instr. â&#x20AC;&#x201C; Civ. 1.4 (rev. 2008), available at http://www.oscn.net/applications/oscn/ DeliverDocument.asp?CiteID=454076. 356. The admonition reads: During all recesses and adjournments, while this case is in progress, you must not discuss this case, or anything about this case, with anyone, and you must not allow anyone to discuss it with you. This rule applies not only to court employees, the attorneys involved in this case, and others you may meet in the courthouse, but also to your husband and wife, other members of your family, your friends and anyone else you may meet. If during the trial anyone talks to you or tries to talk to you about this case, you must immediately report it to me, or the [(clerk of the court)/bailiff ], who will report to me. Do not, before this case is finally submitted to you for a decision, talk to your fellow jurors about this case, or anything about this case, or form or express any opinion about it. Id. 357. See In re Adoption of the 2010 Revisions to the Oklahoma Uniform Jury Instructions-Criminal (Second Edition), 2011 OK CR 2 (Ok. Crim. App. Jan. 25, 2011), available at http://www.okcca.net/online/ files/opinions/2011%20OK%20CR%202.pdf. The instructions mentioned electronic media prior to the 2011 amendments; the changes were mainly to form and organization. 358. Ok. Uniform Jury Instr. â&#x20AC;&#x201C; Crim. [OUJI-CR 2d] 1.4 (2 ed. 2008, supp. 2010), available at http:// www.oscn.net/applications/OCISWeb/DeliverDocument.asp?CiteID=80989. 359. OUJI-CR 2d 1.8 (2 ed. 2008, supp. 2010), available at http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=80994.

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Jury Instructions for the Modern Age A separate introductory instruction for delinquency hearings does not mention the Internet as a means of communication or research: Throughout the trial you should remain alert and attentive. Do not form or express an opinion on the case until it is submitted to you for your decision. Do not discuss this case among yourselves until that time. Do not discuss this case with anyone else or permit anyone else to discuss this case in your presence. Do not talk to the attorneys, [Name of Child], or the witness(es). If anyone should attempt to discuss this case with you, report the incident to me or to the bailiff immediately. Do not read, or view or listen to any news report of this trial. This case must be decided solely upon the evidence presented to you in this court, free from any outside influence.360

Other

Oklahoma also has a separate set of jury instructions for juvenile trials,361 which have a less extensive discussion of Internet and social media use by jurors than the civil or criminal instructions. Do not read newspaper reports or obtain information from the internet about this trial or the issues, parties or witnesses involved in this case, and do not watch or listen to television or radio reports about it. Do not attempt to investigate this case on your own. The reasons for these rules are that it is essential that you should keep your minds free and open at all times throughout this trial and that you should not be influenced by anything except the evidence you hear and see in the courtroom.362

In addition, immediately prior to deliberations, the jurors in juvenile cases are reminded, “You should not consider any matter of fact or of law except what has been given to you while this court is or has been in session.”363

Cases In 2006, the Oklahoma Supreme Court affirmed the trial court’s grant of a new trial after a defense verdict in a medical malpractice case in which a juror had done Internet research on a medical procedure at issue in the case, and regarding the plaintiff ’s medications.364

Oregon – Civil: Modern;  Criminal: Modern Civil Instructions Oregon’s Uniform Civil Jury Instructions were revised in 2011 to more explicitly prohibit jurors from using the Internet or using other electronic tools to find information about a case; or communicating about the case via cell phone, e-mail, text messaging, etc.365 The revised instruction, Ore. Uniform Civ. Jury Instr. 5.01, mentions a number of social media services by name, and includes some explanation of the rationale for the restrictions. 360. OUJI-CR 2d 13.9 (2008), available at http://www.oscn.net/applications/OCISWeb/DeliverDocument.asp?CiteID=81555. 361. For a discussion of when such instructions are used, see In Re Oklahoma Uniform Jury Instructions for Juvenile Cases, 2005 OK 12, 116 P.3d 119 (Ok. 2005), available at http://www.oscn.net/applications/ OCISWeb/DeliverDocument.asp?CiteID=441790. 362. Ok. Jury Instr. – Juv. 1.5 (2005), available at http://www.oscn.net/applications/OCISWeb/DeliverDocument.asp?CiteID=441799. 363. Id. 364. Thompson v. Krantz, 2006 OK CIV APP 60, 137 P.3d 693 (Okla. Civ. App. 2006). 365. See Beverly Michaelis, Oregon Adopts Social Media Jury Instruction, Ore. L. Pract. Mgmt. Blog, Jan. 26, 2011, http://oregonlawpracticemanagement.wordpress.com/2011/01/26/oregon-adopts-social-media-jury-instruction/. Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age You must decide this case based only on the evidence received here in this courtroom. You are not allowed to do any independent research on any idea, location, or person connected to this case. You are not allowed to check dictionaries or other reference sources. You are not allowed to search the Internet, Web sites, or blogs, or use any other electronic tools to get information about this case or to help you decide this case. The law forbids you from seeking information from any source outside this courtroom. Until you retire to deliberate, you may not discuss this case with anyone, including each other, friends, or even members of your family. When you deliberate, you may discuss the case with each other, but you may not discuss the case with anyone else until after you return a verdict and the case is at an end. I hope that you find this case interesting, and I know that many of you use cell phones, smartphones, Blackberries, iPhones, the Internet, and other tools of technology. Communicating with others about the case before it ends is strictly prohibited no matter what form you might use. You may not communicate by cell phone, email, Blackberry, iPhone, text messaging, on Twitter, through any blog or Web site, Internet chat room, or by way of any other social networking Web sites, including Facebook, My Space, LinkedIn, and YouTube. Please understand why the law limits such communication. The lawyers and parties have chosen you, and only you, as the people they want to make this very important decision for them. The lawyers did not choose anyone else in your family or social circle, or anyone in the virtual world of the Internet. They chose you. Anything outside the courtroom that may influence one of you is a potential virus to the group’s work. It is not fair to the parties to have people they never met, with backgrounds they do not know, influencing the decision in this case. That is why the law does not allow it.366

A comment to this instruction notes that “[t]he technological tools referenced in this instruction may be adjusted to delete obsolete technological tools and add newly popularized tools as public usage preferences evolve.”367

Criminal Instructions Oregon’s Uniform Criminal Jury Instructions mention the Internet and social media after a revision in 2009. Do not make any independent personal investigations into any facts or locations connected with this case. Do not look up any information from any source. Do not communicate any private or special knowledge about any of the facts of this particular case to your fellow jurors. Decide the case only on the evidence received here in court. Do not read any news stories, listen to any radio or television reports, or read or listen to anything on the Internet about this case or about anyone involved in this case. In this age of instant electronic communication and research, I want to emphasize that in addition to not speaking face-to-face with anyone about the case, you must not communicate with anyone about the case by any other means, including by telephone, text messages, e-mail, Internet chat, blogs, or social networking Web sites. You must not provide any information about the case to anyone by any means whatsoever, and that includes the posting of information about the case, or what you are doing in the case, on any device or Internet site, including blogs, chat rooms, social networking Web sites, or any other means. In addition to conventional research, you also must not use any Internet search engine-such as Google and all of the others-to look for any information about the case, the law that applies to the case, or the people involved in the case, including the defendant, the witnesses, the lawyers, or the judge. Do not use any map program or mapping system to attempt to view or locate any of the locations that may be discussed in this case. In short, do not communicate with anyone by any means concerning what you see or hear in the courtroom, and do not try to find out more about this case, by any means, other than what you learn in the courtroom.368 366. Ore. Uniform Civ. Jury Inst. [UCJI] 5.01 (2011). 367. Id., Comment. 368. Ore. Uniform Crim. Jury Inst. [UCrJI] 1004 (2009).

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Jury Instructions for the Modern Age A note to this revised instruction explains that “The paragraphs concerning electronic communication and research were added following several incidents across the country in which jurors were blogging or doing Internet research during trials and deliberations.”369

Pennsylvania – Civil: Modern;  Criminal: Modern Civil Instructions Pennsylvania’s Suggested Standard Civil Jury Instructions admonish jurors not to speak to each other, or to others, about the case, and to not read, listen to or watch news stories about the case. The instructions have been updated to mention the Internet, and give a bit of the rationale behind these admonitions, but have not been updated to include the social media. This case is very important to all the parties involved. They are entitled to your full attention throughout the trial and to your fair and impartial consideration of the case. It is important, therefore, that to ensure fairness, you as jurors follow the following rules: a. You must not talk among yourselves about this case, or about anyone involved with it, until the end of the case when you go to the jury room to decide on your verdict. It may be tempting--however, please realize that some people are more easily influenced than others. It is only fair to allow each juror the opportunity to keep an open mind throughout the entire trial. Do not make up your mind about the verdict until you have heard all the witnesses and, of course, have been advised about the applicable law, which I do not present until the end of the trial. b. You must not talk with anyone in the courthouse about this case, or about anyone involved with it, until the trial has ended and you have been discharged as jurors. When you are outside the courtroom, do not let anyone tell you anything about the case, or about anyone involved with it [until the trial has ended and your verdict has been accepted by me]. If someone should try to talk to you about the case [during the trial], please report it to me. During the trial you should not talk with or speak to any of the parties, lawyers, or witnesses involved in this case—you should not even pass the time of day with any of them. It is important not only that you do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the lawsuit sees you talking to a person from the other side-even if it is simply to pass the time of day-an unwarranted and unnecessary suspicion about your fairness might be aroused. If any lawyer, party, or witness does not speak to you when you pass in the hall, ride the elevator, or the like, remember it is because they are not supposed to talk or visit with you, either. [That is why you are asked to wear your juror tags. It denotes you are someone very special who is not to be approached in any way.] c. You must not talk with anyone outside the courthouse or at home. Do not discuss this case with anyone not on the jury. This includes your family and friends. When you go home, you may tell your family or best friend you have been selected as a juror in a civil case and the expected length of the trial. You should not tell them anything more about the case. Even though a further explanation by you may begin innocently, once you finish talking, the other person is not going to just stand there and say nothing. That person will say something and that response may influence your thinking. Your thinking should be influenced only by what you learn in the courtroom. [No matter what kind of case, you will see someone downtown you know over lunch today perhaps. Some friends feel compelled to tell you what your verdict should be, not having heard any of the evidence nor knowing what the law is. So please ask them to respect your role as a juror and the oath you have taken.] d. You must not watch or listen to any news programs, or read any news stories or articles about the case, or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it. [In fact, until the trial is over, I suggest that you avoid reading any newspapers or news journals at all, and avoid listening to any TV or radio newscasts at all. I do not know whether there might be any news reports of this case, but if there are, you might inadvertently

369. UCrJI 1004, Comment (2009). Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age find yourself reading or listening to something before you could do anything about it.] e. You must not conduct any independent research or investigation about the case on your own. You must decide all questions of fact in this case from the evidence received in this trial and not from any other source. You must not make any independent investigation of the facts or the law or consider or discuss facts as to which there is no evidence. This means, for example, that you must not on your own visit the scene, conduct experiments, or consult reference works for additional information. Also, you must not perform computer research or consult the Internet for information. You must decide this case solely on the evidence presented at trial and the law given to you by the court. f. Keep an open mind. Do not make up your mind during the trial about what the verdict should be. Keep an open mind until after you have gone to the jury room to decide the case and you and your fellow jurors have thoroughly discussed the evidence.370

The subcommittee’s note to this instruction discusses “[t]he danger created when a juror communicates with persons outside the courthouse, or conducts independent research or an investigation of issues raised during a trial…”371

Criminal Instructions The admonition against discussion of or exposure to outside information contained in Pennsylvania’s criminal instructions has been revised to mention the Internet and other electronic media. 1. Our system of criminal law allows you to consider only the evidence, arguments, and legal instructions that are presented during the course of the trial. You must avoid anything that might result or appear to result in your being exposed to outside information or influence. Therefore, you should not communicate with anyone else about the case or listen to others talk about the case until the trial is completely over and I discharge you. By “communicate,” I mean more than just not talking face-toface with other people about the case. Please do not communicate with anyone about the case by cell phone, text message, e-mail, or by posting information about the case or what you are doing as a juror on any website. You cannot even discuss the case with members of your family, close friends, court personnel, or other members of the jury. Thus, you should not have any conversations, even casual conversations, with the defendant, counsel for both sides, any witnesses, or other members of the jury. 2. Do not read, listen to, or watch anything about the case in newspapers or magazines, or on radio or television, or the Internet. 3. Do not try to get information relevant to the case on your own. Do not make any investigation, do any research, visit the scene, or conduct any experiment. Do not conduct any Internet search about the facts of the case, the participants, or the law regarding these matters. 4. Your only information about this case should come to you while you are all together, acting as a jury, in the presence of me, the attorneys, and the defendant. [Please report to me promptly if you ever suspect that you have been exposed to improper outside information or influence or that someone has deliberately tried to expose you to that sort of thing.]372

The admonition against discussion of or exposure to outside information during recesses is much more simple, and is expressed in just one general sentence that does not get into specifics. During this recess, do not discuss the case with anyone. Do not allow any information about the case to come to your attention from any source outside the courtroom.373

370. Pa. Bar Inst., Pa. Sugg. Std. Civ. Jury Instr. [Pa. SSJI (Civ.)], 1.52 (3d ed. 2008, rev. 2010). 371. Id., subcommittee’s note (citing Pratt v. St. Christopher’s Hospital, 866 A.2d 313 [Pa. 2005] [affirming reversal of defense verdict in medical malpractice action in which a juror alleged that other jurors had spoken to relatives and friends in the medical profession, as well as to personal physicians, concerning whether the defendant physician acted within the standard of care]). 372. Pa. Bar Inst., Pa. Sugg. Std. Crim. Jury Instr. [Pa. SSJI (Crim.)] 2.06 (2008, rev. 2010). 373. Pa. SSJI (Crim.) 2.06A (2008, rev. 2010).

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Cases In a 2011 murder case, a court declared a mistrial after discovering that a juror had done online research about the injuries suffered by the victim, and told the judge that she had relied on that information in deliberations.374 According to the jury foreperson, the juror who did the research “interpreted jury instructions as only applying to specific information about the Cherry case, not research on general aspects or injuries.”375 The district attorney declined to prosecute the juror, saying that the juror “did not willfully violate the court’s instructions, but rather misunderstood them.”376

Rhode Island – Civil: Archaic;  Criminal: No Instructions General Instructions While there is no instruction regarding the Internet and social media in Rhode Island’s formal civil instructions, in 2009 Superior Court Presiding Justice Joseph F. Rodgers Jr. distributed an instruction on the question to all judges of the court. The revised policy warns jurors against talking about the case “either personally or through computers, cell phone messaging, personal electronic and media devices or other forms of wireless communication.” It also forbids conducting Internet searches about the case, or participating in chat rooms or blogs mentioning the case.377

Rodgers added that similar language would be added to the handbook given to jurors in Rhode Island.378 But the current version of the pamphlet, titled Called for Jury Service: Why Me?, includes only general information about extrinsic information, and does not mention the Internet or social media.379

Civil Instructions Rhode Island’s model civil jury instructions have not been revised since 2003. Thus the only instruction touching on juror use of the Internet is a non-specific statement regarding what constitutes evidence. Anything you might see or hear outside the courtroom or when the court is not in session is not evidence and must be ignored by you even if what you see or hear is something done or said by one of the parties, their attorneys or even a witness in the case. Only the evidence that has been presented here in the courtroom is to be considered by you in deciding the facts of this case.380

Criminal Instructions Rhode Island does not have a recent set of model instructions for criminal trials. Local practice is to use instructions from prior cases in Rhode Island’s federal district court, 374. Michael R. Sisak, Judge Dismisses Juror, Declares Mistrial, The [Wilkes-Barre, Pa.] Citizen’s Voice, Jan. 14, 2011, http://citizensvoice.com/news/update-judge-dismisses-juror-declares-mistrial-1.1090158. The jury had reached a verdict on one count, and was split on the other count. Id.. 375. Id. 376. Andrew Staub, Attorney: “Juror No. 11” will not face charges, The [Wilkes-Barre, Pa.] Citizen’s Voice, Feb. 11, 2001, http://citizensvoice.com/news/attorney-juror-no-11-will-not-face-charges-1.1103141. 377. Talia Buford, New juror policy accounts for new technology, Providence [R.I.] Journal, May 17, 2009, http://www.projo.com/news/content/TWITTER_AND_THE_JURY_05-17-09_C7EA4AE_ v24.3549604.html. 378. Id. 379. R.I. Judiciary, Called for Jury Service: Why Me?, available at http://www.courts.ri.gov/JuryService/PDF/SuperiorJuryBooklet.pdf. 380. R.I. Model Civ. Jury Instr. 101 (2003). Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age which are compiled on the court’s web site.381

Cases The 2004 retrial of Destie B. Ventre for murder (after his conviction was reversed for inadequate jury instructions on self-defense) ended in a mistrial after a juror researched the definitions of “murder,” “manslaughter,” and “self-defense” online and shared the information with fellow jurors.382

South Carolina – Civil: Modern;  Criminal: Modern The civil and criminal jury instructions compiled by the South Carolina Courts Administration are “merely suggestions,” and “are not required and have not been sanctioned or approved by the South Carolina Supreme Court.”383

Civil Instructions South Carolina’s civil instructions mention the Internet only in the admonition against exposure to coverage of the case. During the trial, do not read, listen to, or watch any news reports about this case. This includes anything that may be in the newspapers or on the internet, radio, or television. You must not consider anything you may have read or heard about the case outside the courtroom, whether before or during the trial. It is important that you keep an open mind and not decide any issue in the case until all of the evidence has been presented, the parties have made their closing arguments, and I have instructed you on the law in this case.384

The recess instruction, however, is not this specific, telling jurors only to “not read, watch, or listen to any news reports about this trial.”385

Criminal Instructions

The state’s criminal instructions repeat the admonition from the civil instructions.386

Other In addition to the scant provisions in the civil and criminal jury instructions, the South Carolina Supreme Court has banned use of “audible pagers, cell phones, and any other personal communication devices” in all courtrooms in the state.387 This ban applies to all

381. See U.S. District Ct. for the Dist. of R.I., List of Current Criminal Jury Instructions, http:// www.rid.uscourts.gov/menu/judges/jurycharges/jurychargelist.asp. 382. Mike McKinney, Federal Hill murder case resolved after 9 years, Newsblog, Providence [R.I.] Journal, Oct. 12, 2007, http://newsblog.projo.com/archives/2007/10/federal_hill_mu.html. A retrial after the mistrial ended in another conviction, which was also reversed. Finally, Ventre pleaded guilty and was sentenced in 2007. Id. 383. S.C. Civ. Jury Charges, Acknowledgment and Caveat (n.d. [2007?]), http://www.charlestonbar.org/ CM/ArchivedNewsletters/CivilCharges.doc. 384. S.C. Civ. Jury Charges, ch. 3, General Charge (n.d. [2007?]), http://www.charlestonbar.org/CM/ArchivedNewsletters/CivilCharges.doc. 385. S.C. Civ. Jury Charges, ch. 4, Recesses (n.d. [2007?]), http://www.charlestonbar.org/CM/ArchivedNewsletters/CivilCharges.doc. 386. S.C. Crim. Jury Charges, ch. 3, General Charge (n.d. [2007?]), http://www.charlestonbar.org/CM/ ArchivedNewsletters/GSInstructions2.doc. 387. Order No. 2000-08-25-01, (S.C. Aug. 25, 2000), http://www.sccourts.org/courtOrders/displayOrder. cfm?orderNo=2000-08-25-01.

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Jury Instructions for the Modern Age individuals in the courtroom, including attorneys, jurors, staff members, litigants, witnesses, or members of the general public.388 In 2009, the court ordered that all jurors be specifically admonished not to use these devices to discuss the case or to conduct online research. The court shall instruct jurors selected to serve on a jury that until their jury service is concluded, they shall not: (a) discuss the case with others, including other jurors, except as otherwise authorized by the court; (b) read or listen to any news reports about the case; (c) use a computer, cellular phone, or other electronic device with communication capabilities while in attendance at trial or during deliberation. These devices may be used during lunch breaks, but may not be used to obtain or disclose information prohibited in subsection (d) below; (d) use a computer, cellular phone, or other electronic device with communication capabilities, or any other method, to obtain or disclose information about the case when they are not in court. Information about the case includes, but is not limited to the following: (i) information about a party, witness, attorney, or court officer; (ii) news accounts of the case; (iii) information collected through juror research on any topics raised or testimony offered by any witness; (iv) information collected through juror research on any other topic the juror might think would be helpful in deciding the case. Notice of the contents of this Order shall be given to jurors.389

South Dakota – Civil: Archaic;  Criminal: Archaic Civil Instructions The admonitions in South Dakota’s civil jury instructions against discussing or reading about the case have not been updated to mention social media or the Internet. Finally, to insure fairness, I ask you as jurors to obey the following rules: (1) Do not talk about this case among yourselves until the end of the case when you go to the jury room to decide on your verdict. (2) Do not talk with anyone else about this case until the trial has ended and you have been discharged as jurors. “Anyone else” includes members of your family and your friends. You may tell them that you are a juror in a state civil case, but do not tell them anything else about it until after you have returned a verdict. (3) Do not let anyone tell you anything about the case when you are outside the courtroom. If someone should try to approach you and attempt to talk to you about the case, please report it to me immediately. (4) Do not talk with or speak to any of the parties, lawyers, or witnesses involved in this case. It is important not only that you do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the lawsuit sees you talking to a person from the other side—even if it is simply to exchange greetings—an unwarranted and unnecessary suspicion about your fairness might be aroused. If a lawyer, party, or witness does not speak to you when you pass in the hall, ride the elevator or the like, please keep in mind that they also are instructed to avoid talking or visiting with you. 388. Id. The only exception is for law enforcement officers, unless the officer is present in the courtroom as a witness. Id., n.1. 389. Re Juror use of Personal Communication Devices (order) (S.C. July 20, 2009), http://www.sccourts. org/courtOrders/displayOrder.cfm?orderNo=2009-07-20-01. Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age (5) Do not read any news stories or articles about the case or listen to any radio or television reports about the case. (6) Do not do any research or make any investigation about the case on your own. (7) Do not make up your mind during the trial about what the verdict should be. Keep an open mind until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence.390

Criminal Instructions The admonishment to jurors about discussing or researching cases in South Dakota’s criminal instructions was adopted in 1998, and has not been updated. When you are outside the courtroom, please do not discuss this case with anyone, and do not permit anyone to discuss it with you. Also, do not begin to form or express any opinion, or reach any conclusion about any issue in this case until the case is finally concluded and you start to deliberate. I intend to remind you of this admonition before each recess, but if I do not, remember this instruction. If anyone does attempt to discuss the case with you, please refuse the offer and inform me or the bailiff immediately. If family or friends ask you about the trial, please tell them that you may not discuss it until after the verdict. Do not talk to any of the attorneys, witnesses or parties in the case. Even an innocent conversation may appear to be improper to others. There may publicity in the newspapers, on the radio or on the television concerning this trial. You may not read or listen to those accounts, and must confine your attention to the court proceedings. Please, listen attentively to the evidence as it comes from the witnesses, and reach a verdict solely upon what you hear and see in the courtroom. If you have any questions or problems, please inform the bailiff.391

Such an admonishment is required by statute: Jurors shall, at each adjournment of court, whether permitted to separate or kept in charge of officers, be admonished by the court as follows: You are reminded that you are not to discuss any aspect of this case among yourselves or with anyone else and that you should not form or express any opinion on the case until it is given to you for decision.392

Cases In a 2009 decision, the South Dakota Supreme Court affirmed a trial court’s grant of a new trial in a products liability suit after the trial court discovered that a juror on the case had done research on the defendant companies when he received his jury summons, and uncovered prior litigation regarding their products.393 The juror’s research was not discovered during voir dire;394 and was finally revealed in the course of jury deliberations, when the juror revealed the results of his research to fellow jurors.395 In affirming the lower court, the Supreme Court said that while it was a “close case,”396 the information revealed by the juror “may have caused at least six of the jurors to decide in a manner inconsistent with the instructions given by the trial court if not the evidence as well.”397 390. S.D. Pattern Jury Instr., Civ. 1-10-60 (rev. 2007). 391. S.D. Pattern Jury Instr., Crim. [SDCL] 5-2-5 (2000). 392. S. D. Codified Laws § 23A-24-5 (2011). 393. Russo v. Takata Corp., 2009 S.D. 83, 774 N.W.2d 441 (S.D. 2009), reh’g denied (S.D. Nov. 9, 2009). 394. “The only question asked specific to Takata and any prior knowledge panel members might already possess was posed by counsel for Takata: ‘Okay. Before you got here this morning had anyone ever heard of Takata?’ No one, including [the juror who conducted the research] responded positively to the inquiry.” Id., ¶ 10, 774 N.W.2d at 445. 395. Id., ¶¶ 17-19, 774 N.W.2d at 446. 396. Id., ¶ 55, 774 N.W.2d at 454. 397. Id., ¶ 54, 774 N.W.2d at 454.

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Jury Instructions for the Modern Age Today we announce no hard and fast rule that all such types of internet research by a juror prior to trial without notice to the court and counsel automatically doom a jury’s verdict. Rather, as we do in such close cases, we give deference to the trial court, which had the distinct advantage of being present throughout the nineteen-day trial. The trial court was in the best position to determine whether material was extrinsic to the issues before the jury, or whether the extraneous material prejudiced the jury. Based on the cold record before us, we cannot say that the trial court’s finding that Juror Flynn lacked credibility is clearly erroneous or that its award of a new trial rises to the level of an abuse of discretion. The trial court is affirmed.398

Tennessee – Civil: Modern;  Criminal: Modern Civil Instructions The admonition against discussion and research in Tennessee’s civil instructions has been updated to mention the Internet, as well as a number of social media sites and services. There are several rules concerning your conduct during the trial and during recesses that you should keep in mind. First, do not conduct your own private investigation into this case, although you may be tempted to do so. For example, do not visit the scene of an incident, read any textbooks or articles concerning any issue in this case, or consult any other source of information, including those on the internet. If you were to do that, you would be getting information that is not evidence. You must decide this case only on the evidence and law presented to you during the trial. Any juror who receives any information about this case other than that presented at trial must notify the court immediately. Second, do not discuss the case either among yourselves or with anyone else during the trial. You must keep an open mind until you have heard all the evidence, the attorneys’ closing arguments and my final instructions concerning the law. Any discussions before the conclusion of the case would be premature and improper. Third, do not permit any other person to discuss the case in your presence. If anyone does attempt to do so, report this fact to the Court immediately without discussing the incident with any of the other jurors. Fourth, do not speak to any of the attorneys, parties or witnesses in this case, even for the limited purpose of saying good morning. They are also instructed not to talk to you. In no other way can all the parties feel assured of your absolute impartiality. Fifth, you must not communicate with or provide any information, photographs or video to anyone by any means about this case. You must not use any electronic device or media, such as a telephone, cell phone, smart phone or computer; the Internet, any text or instant messaging service; or any chat room, blog, or website such as Facebook, My Space, Linkedln, YouTube or Twitter, to communicate with anyone or to conduct any research about this case. These devices may be used during breaks or recesses for personal reasons, but must not be used at any time during the trial to receive or send information about any issues related to this trial.399

A summary of this admonition, again mentioning specific social media, is repeated in the instructions prior to deliberations. I remind you that you are to decide this case based only on the evidence you have heard in court and on the law I have given you. You are prohibited from considering any other information and you are not to consult any outside sources for information. You must not communicate with or provide any information, photographs or video to anyone by any means about this case or your deliberations. You may not use any electronic device or media, such as a telephone, cell phone, smart phone or com 398. Id., ¶ 55, 774 N.W.2d at 454. 399. Tenn. Jud. Conf, Comm. on Pattern Jury Inst. (Civ.), 8 Tenn. Prac. Series, Tenn. Pattern Jury Inst., Civil 1.02 (2010). Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age puter; the Internet, any text or instant messaging service; or any chat room, blog, or website such as Facebook, My Space, Linkedln, YouTube or Twitter, to communicate with anyone or to conduct any research about this case.400

Criminal Instructions The preliminary instructions for juries in criminal cases include general admonitions against independent juror research and exposure to coverage of cases. During the course of the trial, you will receive all of the evidence you may properly consider to decide the case. Because of this, you should not attempt to do any research on your own or gather any information on your own that you think might be helpful. Do not engage in any outside reading, visit any places mentioned in the case, or try to learn about the case outside of this courtroom in any other manner. I do not know if there will be any media reports in the newspapers, on TV, or on the radio about this particular case. If there are, you are not permitted to read, watch, or listen to those reports. You, as jurors, must base your decision solely on the evidence you hear in the courtroom.401

While these instructions do not mention the Internet or social media, footnotes to each of these paragraphs suggest that the court may wish to utilize the separate instruction on independent research or discussion, which was updated in 2010 to include these newer technologies.402 You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in the case, and the [individuals] [corporations] involved in the case. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Please do not try to find out information from any source outside the confines of this courtroom. Until you retire to deliberate, you may not discuss this case with anyone, even your fellow jurors. After you retire to deliberate, you may begin discussing the case with your fellow jurors, but you cannot discuss the case with anyone else until you have returned a verdict and the case is at an end. I hope that for all of you this case is interesting and noteworthy. I know that many of you use cell phones, Blackberries, the internet and other tools of technology. You also must not talk to anyone about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including, but not limited to, Facebook, My Space, LinkedIn, and YouTube.403

This instruction was based on the suggested jury instructions on â&#x20AC;&#x153;juror use of electronic communication technologiesâ&#x20AC;? formulated by the U.S. Judicial Conference for civil and criminal cases in federal courts.404 The concluding criminal instructions include a summary of the prior admonition. During your deliberations, you must not communicate with or provide any information to anyone by any means about this case outside the jury deliberation room. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet service, or any text or instant messaging service; or any internet chat room, blog, or website, including, but not limited to, Facebook, My Space, LinkedIn, YouTube or Twitter, to commu 400. Id., Tenn. Pattern Jury Inst., Civil 15.02 (2010). 401. Tenn. Jud. Conf, Comm. on Pattern Jury Inst. (Crim.), 7 Tenn. Pract. Series, Tenn. Pattern Jury Inst., Crim. 1.00 (2010). 402. Id., nn.1-2. 403. Id., Tenn. Pattern Jury Inst., Crim. 1.09 (2010). 404. Id., n.1 See also U.S. Jud. Conf. Comm. on Ct. Admin. & Case Mgmt., Proposed Model Jury Instrs., supra note 29.

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Jury Instructions for the Modern Age nicate to anyone any information about this case or to conduct any research about this case until you have returned your verdict and the trial has concluded.405

Texas – Civil: Modern;  Criminal: Archaic Civil Instructions In December 2010, the Texas Supreme Court amended the state’s civil procedure rules to require admonitions against using the Internet and social media to discuss or research cases.406 Immediately after jurors are selected for a case, the court must instruct them to turn off their phones and other electronic devices and not to communicate with anyone through any electronic device while they are in the courtroom or while they are deliberating. The court must also instinct them that, while they are serving as jurors, they must not post any information about the case on the Internet or search for any information outside of the courtroom, including on the Internet, to try to learn more about the case. If jurors are permitted to separate before they are released from jurv duty, either during the trial or after the case is submitted to them, the court must instruct them that it is their duty not to communicate with, or permit themselves to be addressed by, any other person about any subject relating to the case.407

A different provision of the Texas civil procedure rules was amended in 2011 to mandate an instruction on juror use of electronic devices immediately after voir dire, and an instruction prior to any recess regarding juror communication about the case. Immediately after jurors are selected for a case, the court must instruct them to turn off their phones and other electronic devices and not to communicate with anyone through any electronic device while they are in the courtroom or while they are deliberating. The court must also instruct them that, while they are serving as jurors, they must not post any information about the case on the Internet or search for any information outside of the courtroom, including on the Internet, to try to learn more about the case. If jurors are permitted to separate before they are released from jury duty, either during the trial or after the case is submitted to them, the court must instruct them that it is their duty not to communicate with, or permit themselves to be addressed by, any other person about any subject relating to the case.408

Fulfilling its own requirements, the court has amended the state’s civil jury instructions to reflect new media technologies, mentioning specific sites and services.409 Thus the instructions given to potential jurors at the beginning of voir dire, once they are sworn, now read as follows: 405. Tenn. Jud. Conf, Comm. on Pattern Jury Instrs. (Crim.), 7 Tenn. Pract. Series, Tenn. Pattern Jury Inst., Crim. 43.14 (2010). 406. Amendments to Tex. R. Civ. Pro. 281 and 284 and to the Jury Instrs. Under Texas R. Civ. Pro. 226a, Misc. Docket No. 11-9047 (order) (Tex. 2011), available at http://www.supreme.courts.state.tx.us/miscdocket/11/11904700.pdf. 407. Tex. R. Civ. P. 284 (2010), as amended by Amendments to Tex. R. Civ. Pro. 281 and 284 and to the Jury Instr. Under Texas R. Civ. Pro. 226a, id. 408. Tex. R. Civ. P. 284. 409. See Amendments to Tex. R. Civ. Pro. 281 and 284 and to the Jury Instrs. Under Texas R. Civ. Pro. 226a, supra. The instructions provide that “the following oral instructions, with such modifications as the circumstances of the particular case may require, shall be given by the court to the jurors after they have been sworn as provided in Rule 226 and before the voir dire examination.” Id. at 3. The Texas Supreme Court is authorized to promulgate the instructions under Texas R. Civ. Pro. 226A, which provides that “The court must give instructions to the jury panel and the jury as prescribed by order of the Supreme Court under this rule.” Texas R. Civ. Pro. 226A (2010). Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age Thank you for being here. We are here to select a jury. Twelve [six] of you will be chosen for the jury. Even if you are not chosen for the jury, you are performing a valuable service that is your right and duty as a citizen of a free country. Before we begin: Turn off all phones and other electronic devices. While you are in the courtroom, do not communicate with anyone through any electronic device. [For example, do not communicate by phone, text message, email message, chat room, blog, or social networking websites such as Facebook, Twitter, or Myspace.] [I will give you a number where others may contact you in case of an emergency.] Do not record or photograph any part of these court proceedings, because it is prohibited by law. If you are chosen for the jury, your role as jurors will be to decide the disputed facts in this case. My role will be to ensure that this case is tried in accordance with the rules of law. Here is some background about this case. This is a civil case. It is a lawsuit that is not a criminal case. The parties are as follows: The plaintiff is      , and the defendant is      . Representing the plaintiff is      , and representing the defendant is      . They will ask you some questions during jury selection. But before their questions begin, I must give you some instructions for jury selection. Every juror must obey these instructions. You may be called into court to testify about any violations of these instructions. If you do not follow these instructions, you will be guilty of juror misconduct, and I might have to order a new trial and start this process over again. This would waste your time and the parties’ money, and would require the taxpayers of this county to pay for another trial. These are the instructions. 1. To avoid looking like you are friendly with one side of the case, do not mingle or talk with the lawyers, witnesses, parties, or anyone else involved in the case. You may exchange casual greetings like “hello” and “good morning.” Other than that, do not talk with them at all. They have to follow these instructions too, so you should not be offended when they follow the instructions. 2. Do not accept any favors from the lawyers, witnesses, parties, or anyone else involved in the case, and do not do any favors for them. This includes favors such as giving rides and food. 3. Do not discuss this case with anyone, even your spouse or a friend, either in person or by any other means [including by phone, text message, email message, chat room, blog, or social networking websites such as Facebook, Twitter, or Myspace]. Do not allow anyone to discuss the case with you or in your hearing. If anyone tries to discuss the case with you or in your hearing, tell me immediately. We do not want you to be influenced by something other than the evidence admitted in court. 4. The parties, through their attorneys, have the right to ask you questions about your background, experiences, and attitudes. They are not trying to meddle in your affairs. They are just being thorough and trying to choose fair jurors who do not have any bias or prejudice in this particular case. 5. Remember that you took an oath that you will tell the truth, so be truthful when the lawyers ask you questions, and always give complete answers. If you do not answer a question that applies to you, that violates your oath. Sometimes a lawyer will ask a question of the whole panel instead of just one person. If the question applies to you, raise your hand and keep it raised until you are called on.410

The court also amended the instructions to be given once a jury has been selected. Members of the Jury [or Ladies and Gentlemen]: You have been chosen to serve on this jury. Because of the oath you have taken and your selection for the jury, you become officials of this court and active participants in our justice system. [Hand out the written instructions.] 410. Amendments to Tex. R. Civ. Pro. 281 and 284, and to Jury Instr. Under Texas R. Civ. Pro. 226a, supra, at 3-5.

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Jury Instructions for the Modern Age You have each received a set of written instructions. I am going to read them with you now. Some of them you have heard before and some are new. 1. Turn off all phones and other electronic devices. While you are in the courtroom and while you are deliberating, do not communicate with anyone through any electronic device. [For example, do not communicate by phone, text message, email message, chat room, blog, or social networking websites such as Facebook, Twitter, or Myspace.] [I will give you a number where others may contact you in case of an emergency.] Do not post information about the case on the Internet before these court proceedings end and you are released from jury duty. Do not record or photograph any part of these court proceedings, because it is prohibited by law. 2. To avoid looking like you are friendly with one side of the case, do not mingle or talk with the lawyers, witnesses, parties, or anyone else involved in the case. You may exchange casual greetings like “hello” and “good morning.” Other than that, do not talk with them at all. They have to follow these instructions too, so you should not be offended when they follow the instructions. 3. Do not accept any favors from the lawyers, witnesses, parties, or anyone else involved in the case, and do not do any favors for them. This includes favors such as giving rides and food. 4. Do not discuss this case with anyone, even your spouse or a friend, either in person or by any other means [including by phone, text message, email message, chat room, blog, or social networking websites such as Facebook, Twitter, or Myspace]. Do not allow anyone to discuss the case with you or in your hearing. If anyone tries to discuss the case with you or in your hearing, tell me immediately. We do not want you to be influenced by something other than the evidence admitted in court. 5. Do not discuss this case with anyone during the trial, not even with the other jurors, until the end of the trial. You should not discuss the case with your fellow jurors until the end of the trial so that you do not form opinions about the case before you have heard everything. After you have heard all the evidence, received all of my instructions, and heard all of the lawyers’ arguments, you will then go to the jury room to discuss the case with the other jurors and reach a verdict. 6. Do not investigate this case on your own. For example, do not: a. try to get information about the case, lawyers, witnesses, or issues from outside this courtroom; b. go to places mentioned in the case to inspect the places; c. inspect items mentioned in this case unless they are presented as evidence in court; d. look anything up in a law book, dictionary, or public record to try to learn more about the case; e. look anything up on the Internet to try to learn more about the case; or f. let anyone else do any of these things for you. This rule is very important because we want a trial based only on evidence admitted in open court. Your conclusions about this case must be based only on what you see and hear in this courtroom because the law does not permit you to base your conclusions on information that has not been presented to you in open court. All the information must be presented in open court so the parties and their lawyers can test it and object to it. Information from other sources, like the Internet, will not go through this important process in the courtroom. In addition, information from other sources could be completely unreliable. As a result, if you investigate this case on your own, you could compromise the fairness to all parties in this case and jeopardize the results of this trial. 7. Do not tell other jurors about your own experiences or other people’s experiences. For example, you may have special knowledge of something in the case, such as business, technical, or professional information. You may even have expert knowledge or opinions, or you may know what happened in this case or another similar case. Do not tell the other jurors about it. Telling other jurors about it is wrong because it means the jury will be considering things that were not admitted in court. …411

Finally, the court revised the instruction immediately prior to deliberations to reiterate the admonition against use of electronic devices or resources. 411. Id. at 5-7. Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age After the closing arguments, you will go to the jury room to decide the case, answer the questions that are attached, and reach a verdict. You may discuss the case with other jurors only when you are all together in the jury room. Remember my previous instructions: Do not discuss the case with anyone else, either in person or by any other means. Do not do any independent investigation about the case or conduct any research. Do not look up any words in dictionaries or on the Internet. Do not post information about the case on the Internet. Do not share any special knowledge or experiences with the other jurors. Do not use your phone or any other electronic device during your deliberations for any reason. [I will give you a number where others may contact you in case of an emergency.]412

In addition to the civil jury instructions promulgated by the Texas Supreme Court, the Texas Bar Association has published compilations of civil instructions in four areas: business, consumer, insurance, and employment law; family law; general negligence and intentional personal torts; and malpractice, and premises and products liability.413 The Texas Bar’s current instructions are older versions of the instructions created by the courts, and have not been updated to include mentions of the Internet and social media.414

Criminal Instructions The Texas State Bar recently began compiling an unofficial collection of Criminal Pattern Jury Charges, of which two volumes – on defenses and intoxication and controlled substances – have been published.415 Previously, the Texas District & County Attorneys Association had compiled its own unofficial collection of instructions on offenses under the Texas Penal Code.416 Neither of these compilations contain any instructions regarding juror communications or research. Such an instruction is also missing from the privately-published Texas Criminal Jury Charges, the most comprehensive collection of the state’s instructions in criminal cases.417

Utah – Civil: Modern;  Criminal: Modern Utah’s Supreme Court is in the process of creating sets of civil and criminal jury instructions with the court’s official imprimatur.418 As each individual provision of the civil instructions is adopted by the court’s advisory committee, it replaces a provision in a set of civil instructions compiled by the Utah State Bar, which had been the accepted compilation in the state.419 The court’s criminal instructions, meanwhile, are the first such compilation in the state. 412. Id. at 8. 413. See Texas Bar Books, Texas Pattern Jury Charges, http://texasbarbooks.net/texas-pattern-jurycharges/. See also H.E. Butt Grocery Co. v. Bilotto, 928 S.W.2d 197, 199 (Tex. App.–San Antonio 1996) (“Although we are aware that the Texas Pattern Jury Charges are not “law”, they are heavily relied upon by both the bench and bar.”), aff ’d, 985 S.W.2d 22 (Tex. 1998). 414. See Comm. on Pattern Jury Charges, State Bar of Tex., Pattern Jury Charges: Business, Consumer, Employment, Tex. Pattern Jury Instr. 100.1, 100.2, 100.6 (2000). 415. Id. 416. See Texas Dist. & County Attys. Ass’n., Jury Charges [Penal Code], http://www.tdcaa.com/jury_ charges/penal_code. The group also compiled instructions on punishment provisions; criminal procedure; health and safety; and the Texas Transportation Code. See Texas Dist. & County Attys. Ass’n., Jury Charges, http://www.tdcaa.com/jury_charges. 417. See Elizabeth Berry & George Gallagher, Texas Criminal Jury Charges (2009). 418. Model Utah Jury Instrs. [MUJI 2d], Introduction (2d ed. 2011), http://www.utcourts.gov/resources/muji/index.asp. 419. The Utah Bar’s civil instructions, Model Utah Jury Instrs., 1st ed. [MUJI 1st], are available at http://www.utcourts.gov/committees/muji/Civil%20MUJI.doc.

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Civil Instructions The court’s new civil instructions include two initial admonitions regarding the Internet and social media. The first of these is a general admonition that mentions these new technologies in the course of telling jurors not to discuss or research the case. … Do not allow anything that happens outside this courtroom to affect your decision. During the trial do not talk about this case with anyone, including your family, friends, or even your fellow jurors until after I tell you that it is time for you to decide the case. When it is time to decide the case, you will meet in the jury room. You may discuss the case only in the jury room, at the end of the trial, when all of the jurors are present. After the trial is over and I have released you from the jury, you may discuss the case with anyone, but you are not required to do so. During the trial you must not listen to anyone talk about the case outside this courtroom. Although it is a normal human tendency to talk with other people, do not talk with any of the parties or their lawyers or with any of the witnesses. By this, I mean do not talk with them at all, even to pass the time of day. While you are in the courthouse, the clerk may ask you to wear a badge identifying yourself as a juror so that people will not try to discuss the case with you. If anyone tries to talk to you about the case, tell that person that you cannot discuss it because you are a juror. If he or she keeps talking to you, simply walk away and tell the clerk or the bailiff that you need to see me to report the incident. If you must talk to me, do not discuss it with your fellow jurors. During the trial do not read about the case in the newspapers or on the internet or listen to radio or television broadcasts about the trial. If a headline or an announcement catches your attention, do not read or listen further. Media accounts may be inaccurate or may contain matters that are not evidence. You must decide this case based only on the evidence presented in this trial and the instructions that I provide. Do not investigate the case or conduct any experiments. Do not do any research on your own or as a group. Do not use dictionaries, the internet, or other reference materials. Do not contact anyone to assist you. Do not visit or view the scene of the events in this case. If you happen to pass by the scene, do not stop or investigate. … 420

The second is a specific, detailed instruction admonishing jurors against use of electronic devices. The instruction admirably explains to jurors the reason behind restrictions on Internet and social media use during trial. Serious problems have been caused around the country by jurors using computer and electronic communication technology. It’s natural that we want to investigate a case, or to share with others our thoughts about the trial, and it’s easy to do so with the internet and instant communication devices or services, such as Blackberries, iPhones, Facebook, Twitter, and so on. However, please understand that the rules of evidence and procedure have developed over hundreds of years in order to ensure the fair resolution of disputes. The fairness of the entire system depends entirely on you, the jurors, reaching your decisions based on evidence presented to you in court, and not on other sources of information. You violate your oath as jurors if you conduct your own investigations or communicate about this trial with others. Jurors have caused serious consequences for themselves and the courts by “Googling” the parties, issues, or counsel; “Twittering” with friends about the trial; using Blackberries or iPhones to gather or send information on cases; posting trial updates on Facebook pages; using Wikipedia or other internet information sources, and so on. Even using something as seemingly innocent as “Google Maps” can result in a mistrial. Post-trial investigations are common and can disclose these improper activities. If they are discovered, they will be brought to my attention and the entire case might have to be retried, at substantial cost. 420. MUJI 2d, Civ. 101A (2010), available via http://www.utcourts.gov/resources/muji/. Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age Violations may also result in substantial penalties for the juror. So I must warn you again - do not use your cellphone or computer to investigate or discuss anything connected with this trial until it is completely finished. Do no internet research of any kind, and advise me if you learn of any juror who has done so.421

A committee note to this instruction relates that “[n]ews articles have highlighted the problem of jurors conducting their own internet research or engaging in outside communications regarding the trial while it is ongoing.” “The court,” the note continued, “may therefore wish to emphasize the importance of the traditional admonitions in the context of electronic research or communications.”422 The instruction for recesses also includes an admonition against discussing the case, or accessing the Internet: From time to time I will call for a recess. It may be for a few minutes, a lunch break, overnight or longer. You will not be required to remain together while we are in recess. You must obey the following instructions during the recesses: Do not talk about this case with anyone – not family, friends or even each other. While you are in the courthouse, the clerk may ask you to wear a badge identifying yourself as a juror so that people will not try to discuss the case with you. If anyone tries to discuss the case in your presence, despite your telling them not to, tell the clerk or the bailiff that you need to see me. If you must talk to me, do not discuss it with your fellow jurors. Although it is a normal human tendency to talk with other people, do not talk or otherwise communicate with any of the parties or their lawyers or with any witness. By this, I mean do not talk with them at all, even to pass the time of day. Do not read about the case in the newspapers or on the internet, or listen to radio, television or other broadcasts about the trial. If a headline or announcement catches your attention, do not read or listen further. Media accounts may be inaccurate and may contain matters that are not evidence. You must base your verdict only on the evidence that you see and hear in this courtroom. Since this case involves an incident that occurred at a particular location, you may be tempted to visit the scene yourself. Do not do so. Before a case comes to trial, changes may have occurred at the location after the event that gives rise to this lawsuit. Also, you might draw the wrong conclusions from an unguided visit without the benefit of explanation. Therefore, even if you happen to live near the location, do not go to it or near it until the case is over. Finally, do not make up your mind about what the verdict should be until after you have gone to the jury room to decide the case, and you and your fellow jurors have discussed the evidence. Keep an open mind until then.423

Criminal Instructions

The new criminal instructions424 include a specific instruction regarding the Internet and social media, similar to the provision in the civil instructions. Jurors have caused serious problems during trials by using computer and electronic communication technology. You may be tempted to use these devices to investigate the case, or to share your thoughts about the trial with others. However, you must not use any of these electronic devices while you are serving as a juror.

421. MUJI 2d, Civ. 101B (2010), available via http://www.utcourts.gov/resources/muji/. 422. MUJI 2d, Civ. 101B, Committee Note (2010), available via http://www.utcourts.gov/resources/muji/. 423. MUJI 2d, Civ. 110 (2010), available via http://www.utcourts.gov/resources/muji/. 424. Note that while there was no prior modern compilation of criminal jury instructions in Utah, both the new criminal and civil instructions are referred to as MUJI 2d. Model Utah Jury Instructions, 2d ed. [MUJI 2d], introduction (2011), http://www.utcourts.gov/resources/muji/index.asp.

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Jury Instructions for the Modern Age You violate your oath as a juror if you conduct your own investigations or communicate about this trial with others, and you may face serious consequences if you do. Let me be clear: do not “Google” the parties, witnesses, issues, or counsel; do not “Tweet” or text about the trial; do not use Blackberries or iPhones to gather or send information on the case; do not post updates about the trial on Facebook pages; do not use Wikipedia or other internet information sources, etc. Even using something as seemingly innocent as “Google Maps” can result in a mistrial. Please understand that the rules of evidence and procedure have developed over hundreds of years in order to ensure the fair resolution of disputes. The fairness of the entire system depends on you reaching your decisions based on evidence presented to you in court, and not on other sources of information. Post-trial investigations are common and can disclose these improper activities. If they are discovered, they will be brought to my attention and the entire case might have to be retried, at substantial cost.425

Vermont – Civil: Archaic;  Criminal: Modern Vermont’s model civil and criminal instructions have not been adopted or approved by the Vermont Supreme Court.

Civil Instructions The general civil instructions, last updated in 2007, do not include an admonition against discussing or researching the case, on the Internet or otherwise.426 The instructions address this only very obliquely, by stating that the jurors should consider only the evidence presented at trial. It is your duty to determine the facts, and in so doing you must consider only the evidence I have admitted in the case. The term “evidence” includes the sworn testimony of the witnesses, and the exhibits admitted by the court during the trial.427

Criminal Instructions Vermont’s criminal jury instructions are much more developed in their approach to outside influences on jurors, including an instruction added in 2010 regarding use of electronic devices, which specifies several online and social media services. Your verdict must be based solely on the evidence admitted during the trial. During your deliberations, you must not seek any information about this case from any outside source, including but not limited to television, newspaper, radio, cell phones, iPhones, smart phones, BlackBerries, social networking sites, or any site on the internet. You also must not communicate by any means about your deliberations with anyone who is not a fellow juror. This includes tweeting, texting, blogging, emailing, posting information on a social networking site or other website, or any other means of communication at all.428

The criminal instructions also include a list of “questions to ask jurors at start of trial, and during trial” regarding exposure to media coverage of the case,429 and an instruction defin 425. MUJI 2d, Crim. 109B (2010), available via http://www.utcourts.gov/resources/muji/. 426. Vt. Civ. Jury Instr. Comm., Plain English Jury Instrs., Gen’l Jury Instrs. [A-H] (2007), http:// www.vtbar.org/Upload%20Files/WebPages/Attorney%20Resources/juryinstructions/civiljuryinstructions/generaljury.htm. 427. Id., Vt. Gen’l [Civ.] Jury Instr. A. 428. Vt. Crim. Jury Instr. Comm., Model Crim. Instr. 03-051 (adopted 2010), http://www.vtbar.org/ Upload%20Files/WebPages/Attorney%20Resources/juryinstructions/criminaljuryinstructions/1gene ralinstructions/MS03-051.htm. 429. Vt. Model Crim. Instr. 01-011 (adopted 2003), http://www.vtbar.org/Upload%20Files/WebPages/ Attorney%20Resources/juryinstructions/criminaljuryinstructions/1generalinstructions/ms01-011. Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age ing evidence as “oral testimony of the witnesses, and the exhibits that have been admitted [and the stipulations].”430

Virginia – Civil: Modern;  Criminal: Modern Civil Instructions The preliminary instruction of Virginia’s civil model jury instructions tells jurors not to discuss, research, or expose themselves to coverage of the case, including on the Internet and social media. In your determination of what the facts are, you alone must determine the credibility of the witnesses and the weight of the evidence. … Until this case is submitted to you for your deliberations, you should not decide any issue in the case, and you should not discuss the case with anyone or remain within hearing of anyone who is discussing it. There will be occasional recesses during the trial. During the recesses, you should not discuss the case with your fellow jurors or go to the scene or make any independent investigation or receive any information about the case from radio, television, or the newspapers. Once your deliberations commence, then you must discuss the case only in the jury room when all the members of the jury are present. Do not attempt at any time prior to the conclusion of the case to research any fact, issue, or law related to this case, whether by discussion with others, by research in a library or on the Internet, or by any other means or source. You must not use Internet maps, or any other program or device to search for and view any location discussed in the testimony. You must not search for any information about the case, or the law which applies to the case, or the people involved in the case, including the parties, the witnesses, the lawyers, or the judge. You must not communicate with anyone about the case by any other means, including by telephone, text messages, email, internet chat or chat rooms, blogs, or social web sites.431

Criminal Instructions Virginia’s model criminal instructions repeat the admonition of the civil instructions, using the same language.432

Cases In July 2010, a trial court set aside a guilty verdict and ordered a new trial in a murder case after discovering that the jury had seen personal journal entries by the murder victim, even though they had not been admitted into evidence in the case.433 The revelation came from an anonymous web commenter on the local newspaper’s website, who claimed to have been a juror in the case and wrote that the jurors had reviewed the journal. In response to a subpoena by the defendant, the newspaper willingly provided registration information, that allowed the court to determine the identity of the anonymous commenter.434 The defendant htm. A note for this instruction states that “These questions might be helpful in a high profile case; they are not necessary in every case.” Vt. Crim. Jury Instr. Comm., Notes Regarding Chapters and Sections, http://www.vtbar.org/Upload%20Files/WebPages/Attorney%20Resources/juryinstructions/criminaljuryinstructions/notes.htm. 430. Vt. Model Crim. Instr. 05-011 (adopted 2003), http://www.vtbar.org/Upload%20Files/WebPages/ Attorney%20Resources/juryinstructions/criminaljuryinstructions/1generalinstructions/ms05-011. htm. 431. Va. Model Jury Instr. – Civil No. 2.000 (1998). 432. See Va. Model Jury Instr. – Civil No. 2.050 (2010). 433. See Man convicted of murder in Bedford County will get new trial, GoDanRiver.com [(Danville, Va.) News & Advance ], July 26, 2010, http://www2.godanriver.com/news/2010/jul/26/man_convicted_ of_murder_in_bedford_county_will_get-ar-410734/. 434. Chris Dumond, Jury saw slain wife’s journals; Victim’s writings were not supposed to be considered,

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Jury Instructions for the Modern Age was convicted in the retrial and sentenced to life plus three years.435

Washington – Civil: Modern;  Criminal: Modern Pattern instructions for both civil and criminal cases in Washington have been recently updated to warn jurors against using electronic resources during trial. But the instructions encourage the courts to convey this message from the very start of the jurors’ experience, as explained in a note to the civil instructions. The [civil] instruction warns jurors, after they have been selected to serve on a case, against participating in improper communications and research about the case. Some of this information, however, should be given to potential jurors before they arrive in the courtroom for jury selection. Courts should make sure that potential jurors who are reporting for jury duty know that they should not seek out or receive any information about pending legal cases or issues.436

Civil Instructions Washington’s general instruction to be given to civil jurors after voir dire was revised in 2010 to more explicitly detail electronic sources that the jurors should avoid during trial. It is essential to a fair trial that everything you learn about this case comes to you in this courtroom, and only in this courtroom. You must not allow yourself to be exposed to any outside information about this case. Do not permit anyone to discuss or comment about it in your presence, and do not remain within hearing of such conversations. You must keep your mind free of outside influences so that your decision will be based entirely on the evidence presented during the trial and on my instructions to you about the law. Until you are dismissed at the end of this trial, you must avoid outside sources such as newspapers, magazines, blogs, the internet, or radio or television broadcasts which may discuss this case or issues involved in this trial. If you start to hear or read information about anything related to the case, you must act immediately so that you no longer hear or see it. By giving this instruction I do not mean to suggest that this particular case is newsworthy; I give this instruction in every case. During the trial, do not try to determine on your own what the law is. Do not seek out any evidence on your own. Do not consult dictionaries or other reference materials. Do not conduct any research into the facts, the issues, or the people involved in this case. This means you may not use [Google or other internet search engines] [internet resources] to look into anything at all related to this case. Do not inspect the scene of any event involved in this case. If your ordinary travel will result in passing or seeing the location of any event involved in this case, do not stop or try to investigate. You must keep your mind clear of anything that is not presented to you in this courtroom. During the trial, do not provide information about the case to other people, including any of the lawyers, parties, witnesses, your friends, members of your family, or members of the media. If necessary, you may tell people (such as your employer) that you are a juror and let them know when you need to be in court. If people ask you for more details, you should tell them that you are not allowed to talk about the case until it is over. I want to emphasize that the rules prohibiting discussions include your electronic communications. You must not send or receive information about anything related to the case by any means, including by text messages, e-mail, telephone, internet chat, blogs, or social networking web sites.

(Danville, Va.) News & Advance, July 14, 2010, http://www2.godanriver.com/news/2010/jul/14/ jury_saw_slain_wifes_journals_victims_writings_wer-ar-411016/. 435. Chris Dumond, Earnest sentenced to life plus three years, (Danville, Va.) News & Advance, Jan. 25, 2010, http://www2.godanriver.com/news/2011/jan/25/earnest-sentenced-life-plus-three-yearsar-797303/. 436. 6 Wash. Prac., Wash. Pattern Jury Instr. Civ. [WPI] 1.01, Comment (5th ed. rev. 2010), available via http://government.westlaw.com/linkedslice/default.asp?SP=wciji-1000. Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age In short, do not communicate with anyone, by any means, concerning what you see or hear in the courtroom, and do not try to find out more about anything related to this case, by any means, other than what you learn in the courtroom. These rules ensure that the parties will receive a fair trial. If you become exposed to any information other than what you learn in the courtroom, that could be grounds for a mistrial. A mistrial would mean that all of the work that you and your fellow jurors put into this trial will be wasted. Re-trials are costly and burdensome to the parties and the public. Also, if you communicate with others in violation of my orders, you could be fined or held in contempt of court. After you have delivered your verdict, you will be free to do any research you choose and to share your experiences with others. [Remember that all phones, PDAs, laptops, and other communication devices must be turned off while you are in court and while you are in deliberations.] Throughout the trial, you must maintain an open mind. You must not form any firm and fixed opinion about any issue in the case until the entire case has been submitted to you for deliberation. As jurors, you are officers of this court. As such, you must not let your emotions overcome your rational thought process. You must reach your decision based on the facts proved to you and on the law given to you, not on sympathy, bias, or personal preference. To assure that all parties receive a fair trial, you must act impartially with an earnest desire to reach a just and proper verdict. To accomplish a fair trial takes work, commitment, and cooperation. A fair trial is possible only with a serious and continuous effort by each one of us, working together. Thank you for your willingness to serve this court and our system of justice.437

The pre-recess instruction for civil cases includes a similar level of detail regarding electronic resources. During this recess, and every other recess, do not discuss this case among yourselves or with anyone else, including your family and friends. This applies to your internet and electronic discussions as wellâ&#x20AC;&#x201D;you may not talk about the case via text messages, e-mail, telephone, internet chat, blogs, or social networking web sites. If anybody asks you about the case, or about the people or issues involved in the case, you are to explain that you are not allowed to discuss it. Do not allow anyone to give you information about the case, including in your electronic communications. If you overhear a discussion or start to receive information about anything related to this case, you must act immediately so that you no longer hear or see it. Do not read, view, or listen to any report from the newspaper, magazines, social networking sites, blogs, radio, or television on the subject of this trial. Do not conduct any internet research or consult any other outside sources about this case, the people involved in the case, or its general subject matter. You must keep your mind open and free of outside information. Only in this way will you be able to decide the case fairly based solely on the evidence and my instructions on the law.438

Criminal Instructions Washingtonâ&#x20AC;&#x2122;s criminal instruction on this point was last updated in 2008, and does not include the sentence present in the civil instructions about phones and electronic devices. It is essential to a fair trial that everything you learn about this case comes to you in this courtroom, and only in this courtroom. You must not allow yourself to be exposed to any outside information about this case. Do not permit anyone to discuss or comment about it in your presence. You must 437. 6 Wash. Prac., Wash. Pattern Jury Instr. Civ. [WPI] 1.01 (5th ed. rev. 2010), available via http:// government.westlaw.com/linkedslice/default.asp?SP=wciji-1000. 438. WPI 6.02 (2010), available via http://government.westlaw.com/linkedslice/default.asp?SP=wciji-1000.

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Jury Instructions for the Modern Age keep your mind free of outside influences so that your decision will be based entirely on the evidence presented during the trial and on my instructions to you about the law. Until you are dismissed at the end of this trial, you must avoid outside sources such as newspapers, magazines, the internet, or radio or television broadcasts which may discuss this case or issues involved in this trial. By giving this instruction I do not mean to suggest that this particular case is newsworthy; I give this instruction in every case. During the trial, do not try to determine on your own what the law is. Do not seek out any evidence on your own. Do not consult any reference materials, such as dictionaries and the like. Do not inspect the scene of any event involved in this case. If your ordinary travel will result in passing or seeing the location of any event involved in this case, do not stop or try to investigate. Throughout the trial, you must maintain an open mind. You must not form any firm and fixed opinion about any issue in the case until the entire case has been submitted to you for deliberation. As jurors, you are officers of this court. As such, you must not let your emotions overcome your rational thought process. You must reach your decision based on the facts proved to you and on the law given to you, not on sympathy, prejudice, or personal preference. To assure that all parties receive a fair trial, you must act impartially with an earnest desire to reach a just and proper verdict. To accomplish a fair trial takes work, commitment, and cooperation. A fair trial is possible only with a serious and continuous effort by each one of us. Thank you for your willingness to serve this court and our system of justice.439

The admonition against accessing outside information is repeated in the pre-recess instruction. During this recess, and every other recess, do not discuss this case among yourselves or with anyone else, including your family and friends. Do not allow anyone to discuss the case with you or within your hearing. Do not read any newspaper or other written account, watch any televised account, listen to any radio program, or consult any other outside sources, including the internet, about this case or its general subject matter. You must keep your mind open and free of outside information. Only in this way will you be able to decide the case fairly based solely on the evidence and my instructions on the law.440

Other In accordance with the Supreme Court’s recommendation that jurors be warned against independent research as soon as possible, the juror’s guide given to all jurors in the state at the start of jury duty includes the following language: Some do’s and don’ts During trial: 6. DON’T talk about the case, or issues raised by the case with anyone-- including other jurors--while the trial is going on, and DON’T let others talk about the case in your presence, even family members. If someone insists on talking to you or another juror about the case, please report the matter to a court employee. These rules are designed to help you keep an open mind during the trial. 7. DON’T talk to the lawyers, parties, or witnesses about anything. This will avoid the impression that something unfair is going on. 8. DON’T try to uncover evidence on your own. Never, for example, go to the scene of an event that was part of the case you are hearing. You must decide the case only on the basis of evidence admitted in court. 439. 11 Wash. Prac., Pattern Jury Instr. Crim. [WPIC] 1.01 (3d ed. 2008), available via http://government.westlaw.com/linkedslice/default.asp?SP=wcrji-1000. 440. WPIC 4.61 (2008), available via http://government.westlaw.com/linkedslice/default. asp?SP=wcrji-1000. Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age 9. DON’T let yourself get information about the case from the news media or any other outside source. Even if news reports are accurate and complete, they cannot substitute for your own impressions about the case. If you accidentally hear outside information about the case during trial, tell a member of the court staff in private.441

Cases

In State v. Boling,442 the Washington Court of Appeals affirmed a trial court’s grant of a new trial in a manslaughter case in which a juror did Internet research on alcohol poisoning as a cause of death, when the medical examiner testified that the cause of death was a brain injury (subdural hematoma) resulting from blunt force trauma to the head. Here, the [trial] court was less interested in whether one or more jurors voted to convict for reasons outside the evidence and the law, than in whether that possibility could be ruled out. The court did not order a new trial because a particular juror engaged in a particular thought process. Rather, the juror’s post-trial statements established that the evidence of alcohol toxicity could have been misused. The jury might well have speculated that this was the cause of death but that Mr. Boling was nonetheless also responsible for this cause.443

While the judge in a 2010 murder case was outraged that a juror had tweeted about the trial, he was dissuaded by the prosecution and defense attorneys from removing the juror because only one alternate would have remained. “We’ve been doing this for 250 years now,” the judge said. “I can tell you it works when we do it this way. It fails when we don’t.”444 The case ended in a mistrial anyway, due to a hung jury.445

West Virginia – Civil:Archaic;  Criminal: Modern In 2000, the West Virginia Supreme Court of Appeals accepted drafts of proposed model jury instructions for civil and criminal trials for “a six-month comment and working period.”446 The instructions were posted on the court’s website and remained there, without changes, until 2009, when they were removed “pending review and revision.”447 Meanwhile in a 2010 ruling the court called for trial judges to instruct jurors regarding use of the Internet during trial, citing with approval the rule proposed by the Administrative Office of the U.S. Courts.448

441. Super. Ct. Judges’ Ass’n. & Dist. & Muni. Ct. Judges’ Ass’n. of the State of Wash., Juror’s Guide, published in 6 Wash. Prac., Wash. Pattern Jury Instr. Civ., Appendix A (5th ed. rev. 2010). 442. 131 Wash. App. 329, 127 P.3d 740 (Wash. Ct. App., Div. 3 2006) , rev. denied, 158 Wash. 2d 1011, 145 P.3d 1214 (2006) (table). 443. Id. at 333, 127 P.3d at 742. 444. Levi Pulkkinen, Judge to juror: Stop tweeting about trial, Seattle 911 — A Police and Crime Blog, Seattle Post-Intelligencer, Nov. 17, 2010, http://blog.seattlepi.com/seattle911/2010/11/17/judgeto-juror-stop-tweeting-about-trial/. 445. Levi Pulkkinen, Mistrial declared in cold-case slaying, Seattle 911 — A Police and Crime Blog, Seattle Post-Intelligencer, Dec. 22, 2010, http://blog.seattlepi.com/seattle911/2010/12/22/mistrialdeclared-in-cold-case-slaying/. 446. In re Proposed Model Jury Instructions, No. _____ (W. Va. Dec. 13, 2000), available at http://web. archive.org/web/20070205092710/ http://www.state.wv.us/wvsca/jury/order.htm. 447. James R. Elkins, West Virginia Homicide Jury Instructions Project: Revised Homicide Jury Instructions for West Virginia, n.d. [2009?], http://myweb.wvnet.edu/~jelkins/adcrimlaw. 448. State v. Dellinger, 225 W. Va. 736, 743, n.11, 696 S.E.2d 38, 45 n.11 (2010). For discussion of this case, see p. 404, infra. For discussion of the suggested federal rule, see p. 311, supra.

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Civil Instructions The proposed model civil instructions included only general discussion of what jurors can consider as evidence, without any reference to outside materials. As individuals you may believe that certain facts existed, but as jurors sworn to try this case and to render a true verdict on the law and the evidence, you can act only upon the evidence which has been properly introduced to you at this trial. You cannot speculate as to what may have happened in the absence of evidence on a given point.449 *** You are to determine the facts of this case from the evidence alone. The “evidence” in the case always consists of the sworn testimony of all the witnesses, whether the witness appeared in person or by deposition regardless of who may have called the witness; and all exhibits received in evidence, regardless of who may have produced them. Accordingly, during your deliberations you should carefully consider the testimony of each and every witness and all exhibits.450

Criminal Instructions The only instruction of the proposed model criminal instructions that did not deal with the elements of criminal offenses was a series of instructions to be delivered to the jury immediately prior to deliberations. These instructions only mentioned the evidence that jurors could use to reach a verdict, and did not address any specific sources of information. The evidence in this case consists of the testimony of witnesses who have appeared before you and testified and the exhibits which have been introduced in evidence and which have been shown to you.451 … … The law permits nothing but legal evidence presented before the jury to be considered in support of any charge against the accused.452

Besides the proposed criminal instructions, West Virginia Public Defender Services has compiled a set of West Virginia criminal jury instructions. The latest edition of these instructions, compiled in 2003, provide as follows: 2.11 NO DISCUSSION You must not discuss this case among yourselves at any time either here in the courtroom or beyond the courthouse. You must wait until the trial is concluded and you have been asked to retire to your jury room to consider your verdict. 2.12 FORM NO OPINION Do not make up your mind or form any opinion as to the guilt or innocence of the defendant until the trial is concluded and you have heard all of the evidence, the instructions of law and the argument of counsel. This defendant comes before you presumed to be innocent, with a clean slate, and you must keep that presumption throughout this trial.

449. Proposed Jury Instr. for Civ. Trials, Instructions on the Charge to the Jury (Civil) 1.2, Duty to Follow Instructions (W.Va. 2000), available at http://web.archive.org/ web/20070301083027/ http://www.state.wv.us/wvsca/jury/civilchg.htm. 450. Proposed Jury Instr. for Civ. Trials, Instructions on the Charge to the Jury (Civil) 1.5, Consideration of the Evidence (W.Va. 2000), available at http://web.archive.org/ web/20070301083027/ http://www.state.wv.us/wvsca/jury/civilchg.htm. 451. Proposed Jury Instr. for Crim. Trials, Instructions on the Charge to the Jury (Crim.), ¶ 8 (W.Va. 2000), available at http://web.archive.org/web/20070301083056/ http://www. state.wv.us/wvsca/jury/charge.htm. 452. Id., ¶ 24. Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age 2.13 AVOID OUTSIDE DISCUSSION You are not to discuss this case with anyone other than the other members of this jury during deliberations. Do not even discuss this case with members of your own family or your friends. 2.14 NO INVESTIGATION Do not make any kind of a private investigation, do not conduct any experiments and do not do any research. You may only consider the evidence that is introduced in this case. 2.15 NO MEDIA Do not read any newspaper article or story or listen to any news coverage or watch any TV coverage that deals with this trial.453

Other The West Virginia court’s handbook for jurors also gives a statement on what is evidence: Rules of evidence have been developed over the years to insure that trials are fair and orderly, and the judge acts as a gatekeeper for the evidence that comes into court. Insofar as the jury is concerned, the evidence is only that which the judge permits the jury to consider. For instance, statements and arguments of the lawyers are not evidence, and neither is testimony that the jury has heard, but which the judge has ordered stricken from the record.454

The manual also gives a list of “dos and don’ts” regarding juror exposure to coverage of and information about cases. There are certain rules that a juror should follow throughout the trial in order to be fair to all sides: Inspecting the Scene: The case on trial may involve a certain place or thing, such as the scene of an accident, a particular business place, the operation of a traffic light or the like. If it is necessary and proper for the jury to make an inspection of the place or thing, the judge will order that the entire jury do so, with the judge and the lawyers present. It is improper for any juror to make an inspection unless ordered by the court. An unauthorized inspection by a juror might force a retrial of the case. Discussing the Case: During or before the trial, jurors should not talk about the case with each other, with other persons, or allow other people to talk about it in their presence. If anyone insists upon talking about the case after repeated attempts to silence them, the juror should report the matter to the judge at the first opportunity. News Accounts: To ensure that jurors keep an open mind until all the evidence, arguments and the instructions of the court have been heard, they should not watch television accounts, listen to radio broadcasts, or read newspaper articles which may occur during the trial. Such sources may give a biased or unbalanced version of the case. Talking With Parties or Lawyers: Jurors should not talk with any of the parties, witnesses or lawyers during the trial. It may give the appearance that something unfair is happening.455

Cases In 2007, the West Virginia Supreme Court of Appeals reversed a sexual abuse conviction in which two jurors had accessed the MySpace page of one of the teenage victims, and that one of the jurors had discussed the contents of the page with the juror’s own daughter, who knew the other victim.456 But the court was even more concerned about other juror misconduct. 453. W. Va. Crim. Research Ctr., W. Va. Crim. J. Instrs. 10-11 (6th ed. 2003), available at http://www. wvpds.org/Jury%20Instructions/Jury%20Instruction%206.pdf. 454. Admin. Office of W. Va. Sup. Ct. of Appeals, Jury Duty: A Handbook for Trial Jurors, available at http://www.state.wv.us/wvsca/juryinfo/juryhdbk.htm. 455. Id. 456. State v. Cecil, 221 W.Va. 495, 504, 655 S.E.2d 517, 526 (W. Va. 2007). In addition, a third juror, who was

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Jury Instructions for the Modern Age The independent investigation by jurors in this case concerning the website discussed during the appellant’s trial constitutes misconduct extrinsic to the jury’s deliberative process. Upon review of the record, we conclude that if this were the only misconduct at issue, we would be hesitant to find that it was sufficiently prejudicial to warrant setting aside the verdict. It appears that public access to the website information specifically maintained by K.J. was restricted or removed prior to trial and, therefore, could not have been viewed by these jurors. The fact that one of the jurors may have discussed the website with her daughter who knew S.D. and her family is more troubling. However, we are most concerned with the fact that one of the jurors may have misled the jury with regard to the weight to be given to the testimony of the witnesses By advising the other jurors that the testimony of the children had to be given greater weight than that of the appellant, the juror in question directly contradicted the circuit court’s instructions. In effect, this juror, who worked for the DHHR, told other members of the jury that an incorrect legal standard should be applied to the testimony of the alleged victims in this case.457

Based on the totality of circumstances in the case, the court concluded that the conviction had to be overturned. Having carefully reviewed the record, we conclude that the cumulative effect of each of the instances of juror misconduct discussed above made it impossible for the appellant to receive a fair trial. We are mindful that the independent investigation conducted by two of the jurors did not bear fruit, which arguably lessens the prejudicial effect, but notwithstanding that fact, the mere fact that members of a jury in a serious felony case conducted any extrajudicial investigation on their own is gross juror misconduct which simply cannot be permitted. Without meaningful censure, failure to properly punish such behavior would encourage or allow its repetition. Given the independent investigation by these jurors and the fact that another juror advised that the alleged victims’ testimony should be given more weight than that of the appellant contrary to the judge’s instructions and our law, we have no choice but to vacate the appellant’s convictions.458

In June 2010, the same court reversed the conviction of a deputy sheriff for misconduct regarding grants he administered and ordered a new trial, based on the fact that a juror in the case had not disclosed her online “friendships” with the defendant.459 The juror and the defendant had formerly lived in the same apartment complex, and approximately one week before trial – after the juror had been summoned for jury duty, but had not yet appeared – the juror, using a pseudonym, sent a message of encouragement to the defendant on MySpace, after which the juror invited the defendant to become her “friend” on the site, which he accepted.460 Then, during trial, the juror posted the following message to her MySpace page, visible to all her “friends” on the site: “Amber Just got home from Court and getting ready to get James and Head to church! Then back to court in the morning!”461 The juror failed to disclose this relationship during voir dire. When the trial judge subsequently asked the juror why she did not do so, the juror said, “I just didn’t feel like I really employed at the state Department of Health and Human Resources, told fellow jurors that, based on her experience, children’s testimony regarding sexual abuse was more reliable than adults’ testimony. Id. 457. Id. at 504, 655 S.E.2d at 526 (footnote omitted). 458. Id. 459. State v. Dellinger, 225 W. Va. 736, 696 S.E.2d 38 (2010). 460. Id. at 738, 696 S.E.2d at 40. The message that the juror sent to the defendant was the following: Hey, I dont [sic] know you very well But I think you could use some advice! I havent [sic] been in your shoes for a long time but I can tell ya that God has a plan for you and your life. You might not understand why you are hurting right now but when you look back on it, it will make perfect sence [sic]. I know it is hard but just remember that God is perfect and has the most perfect plan for your life. Talk soon! 461. Id. Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age knew him. I didn’t know him personally.”462 In a subsequent interview, the juror explained, “[m]aybe I should have said he was on my MySpace page, but then I thought to myself, I really don’t know him, so I’m really not lying.”463 The juror’s MySpace activities were discovered after the defendant was convicted, and he filed a motion for a new trial. In denying the motion, the trial court found that the juror’s “contact with [Appellant] was minimal, and she was a fair and impartial juror.”464 But the West Virginia Supreme Court of Appeals disagreed.465 [A]s demonstrated by the facts set forth above, Juror Hyre intentionally and repeatedly failed to be forthcoming about her connections to Appellant and witnesses Frame and Slaughter, arguably, in order to improve her chances of serving on Appellant’s jury. Whatever her reasons for doing so, she cannot be considered to have been indifferent or unbiased. Accordingly, we find that the trial court abused its discretion in denying Appellant’s motion for new trial.466

In a footnote, the appeals court stated that a general instruction to jurors regarding use of social media may be prudent: [W]e also believe some cautionary words are warranted concerning the prominent presence of the internet and routine use of and dependence upon various technologies by everyday Americans called to jury service.467

As an example, the court cited the instruction proposed by the U.S. Judicial Conference.468 But, as noted above, West Virginia’s jury instructions – to the extent that they exist – currently do not contain such a provision.

Wisconsin – Civil: Modern;  Criminal: Modern Civil Instructions After Wisconsin’s criminal jury instructions were revised to extensively detail limitations on jurors’ use of electronic devices and resources in 2010,469 the Wisconsin Civil Jury Instructions Committee added an extensive explanation to the state’s civil jury instructions regarding electronic research and communications by jurors during trial. Before the trial begins, there are certain instructions you should have to better understand your functions as a juror and how you should conduct yourself during the trial. Your duty is to decide the case based only on the evidence presented at trial and the law given to you by the court. Anything you may see or hear outside the courtroom is not evidence. Do not let any personal feelings about race, religion, national origin, sex, or age affect your consideration of the evidence. 462. Id. at 739, 696 S.E.2d at 41. 463. Ryan Flinn, Facebook Is Tool for Trial Lawyers Scouring Juror Profiles to Unearth Bias, Bloomberg, Mar. 30, 2011, http://www.bloomberg.com/news/2011-03-31/trial-lawyers-scour-jury-members-profiles-on-facebook-twitter.html. 464. Dellinger at 739, 696 S.E.2d at 41. 465. The appeals court did not disagree with the trial court regarding the juror’s Facebook comment. “Though this Court does not condone any communication about a case by a sitting juror, we agree with the trial court’s apparent finding that Juror Hyre’s posting was benign in nature. We believe that, standing alone, it was not sufficient to find that she engaged in juror misconduct.” Id. at 743, n.11, 696 S.E.2d at 45 n.11. 466. Id. at 742-43, 696 S.E.2d at 44-45. 467. Id. at 743, n.11, 696 S.E.2d at 45 n.11. 468. U.S. Jud. Conf., Comm. on Ct. Admin. & Case Mgmt., Prop. Model Jury Instr., supra note 29. 469. See p. 311, infra.

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Jury Instructions for the Modern Age In fairness to the parties, keep an open mind during the trial. Do not begin your deliberations and discussion of the case until all the evidence is presented and I have instructed you on the law. Do not discuss this case among yourselves or with anyone else until your final deliberations in the jury room. You will then be in a position to intelligently and fairly exchange your views with other jurors. CONDUCT We will stop, or “recess,” from time to time during the trial. You may be excused from the courtroom when it is necessary for me to hear legal arguments from the lawyers. If you come in contact with the parties, lawyers (interpreters) or witnesses do not speak with them. For their part, the parties, lawyers, (interpreters) and witnesses will not contact or speak with the jurors. Do not listen to any conversation about this case. Do not research any information that you personally think might be helpful to you in understanding the issues presented. Do not investigate this case on your own or visit the scene. Do not read any newspaper reports or listen to any news reports on radio or television about this trial. Do not consult dictionaries, computers, websites or other reference materials for additional information. Do not seek information regarding the public records of any party or witness in this case. Any information you obtain outside the courtroom could be misleading, inaccurate, or incomplete. Relying on this information is unfair because the parties would not have the opportunity to refute, explain, or correct it. Do not communicate with anyone about this trial or your experience as a juror while you are serving on this jury” Do not use a computer, cell phone or other electronic device with communication capabilities to share any information about this case” For example, do not communicate by blog, e-mail, text message, Twitter, Facebook, other social networking sites, or in any other way, on or off the computer. Do not permit anyone to communicate with you, and if anyone does so despite your telling them not to, you should report that to me. I appreciate that it is tempting when you go home in the evening to discuss this case with another member of your household, but you may not do so” This case must be decided by you the jurors, based on the evidence presented in the courtroom. People not serving on this jury have not heard the evidence, and it is improper for them to influence your deliberations and decision in this case. After this trial is completed, you are free to communicate with anyone in any manner. These rules are intended to assure that jurors remain impartial throughout the trial. If any juror has reason to believe that another juror has violated these rules, you should report that to me. If jurors do not comply with these rules, it could result in a new trial involving additional time and significant expense to the parties and the taxpayers.470

The instruction also reminds jurors that “you are to decide the case solely on the evidence offered and received at trial,” and that “[a]nything you may have seen or heard outside the courtroom is not evidence.”471

Criminal Instructions In 2009, Wisconsin’s Criminal Jury Instructions Committee revised its model jury instructions with language very similar to the revised civil instruction. Before the trial begins, there are certain instructions you should have to better understand your functions as a juror and how you should conduct yourself during the trial. Your duty is to decide the case based only on the evidence presented at trial and the law given to you by the court. Anything you may see or hear outside the courtroom is not evidence. Do not let any personal feelings about race, religion, national origin, sex, or age affect your consideration of the evidence. Do not begin your deliberations and discussion of the case until all the evidence is presented and I have instructed you on the law. Do not discuss this case among yourselves or with anyone else until your final deliberations in the jury room.

470. Wis. Jury Instr. - Civ. [WISJI-CIVIL] No. 50, pp. 1-2 (2011). 471. Id., p. 4. Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age We will stop, or “recess,” from time to time during the trial. You may be excused from the courtroom when it is necessary for me to hear legal arguments from the lawyers. If you come in contact with the parties, lawyers, (interpreters) or witnesses do not speak with them. For their part, the parties, lawyers, (interpreters) and witnesses will not contact or speak with the jurors. Do not listen to any conversation about this case. Do not research any information that you personally think might be helpful to you in understanding the issues presented. Do not investigate this case on your own or visit the scene. Do not read any newspaper reports or listen to any news reports on radio or television about this trial. Do not consult dictionaries, computers, web sites or other reference materials for additional information. Do not seek information regarding the public records of any party or witness in this case. Any information you obtain outside the courtroom could be misleading, inaccurate, or incomplete. Relying on this information is unfair because the parties would not have the opportunity to refute, explain, or correct it. Do not communicate with anyone about this trial or your experience as a juror while you are serving on this jury. Do not use a computer, cell phone, or other electronic device with communication capabilities to share any information about this case. For example, do not communicate by blog, e-mail, text message, twitter, or in any other way, on or off the computer. Do not permit anyone to communicate with you, and if anyone does so despite your telling them not to, you should report that to me. I appreciate that it is tempting when you go home in the evening to discuss this case with another member of your household, but you may not do so. This case must be decided by you the jurors, based on the evidence presented in the courtroom. People not serving on this jury have not heard the evidence, and it is improper for them to influence your deliberations and decision in this case. After this trial is completed, you are free to communicate with anyone in any manner. These rules are intended to assure that jurors remain impartial throughout the trial. If any juror has reason to believe that another juror has violated these rules, you should report that to me. If jurors do not comply with these rules, it could result in a new trial involving additional time and significant expense to the parties and the taxpayers.472

The committee stated that its goal in adopting these revisions was “to integrate those cautions [regarding use of electronic devices and electronic communications] into the broader concerns addressed by the instruction: deciding the case only on the basis of evidence introduced at trial, not communicating with others about the case while it is pending, and not making up one’s mind until all the evidence is in.”473

Other In addition to these changes to the jury instructions, The Wisconsin Jury Handbook provides a list of “ten rules for a juror,” including the following: 4. DO NOT DISCUSS THE CASE: During the trial, you should not talk about the case to anyone, including other jurors. Outside discussions could cause you to form conclusions before all the evidence has been presented. 5. DO NOT READ, VIEW OR LISTEN TO MEDIA ACCOUNTS: Newspaper, radio or television reports might present a biased or unbalanced view of the case. Such accounts might then influence your future evaluation of the facts of the case. 6. DO NOT TALK WITH ANYONE RELATED TO THE CASE: You should not talk at all to the lawyers, parties, witnesses, or anyone connected to the case. This might be perceived as an attempt to influence your verdict.

472. Wis. J. Instr. — Crim. [WIS JI-CRIMINAL] No. 50 (2011), pp. 1-2, available at http://www.postcrescent.com/assets/pdf/U014968718.PDF. 473. Id., Comment (p. 5).

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Jury Instructions for the Modern Age 7. DO NOT INVESTIGATE THE CASE ON YOUR OWN: If the Judge determines that an inspection of the scene or premises involved in a case is appropriate, the Judge will arrange for the jury as a whole to make this inspection, accompanied by the court officials and parties involved.474

Wyoming – Civil: Modern;  Criminal: Archaic Civil Instructions Wyoming’s jury instructions for a civil trial have been updated to account for the Internet and social media, and mention a number of specific sites and services. The instruction prior to opening statements is the following: Until the case is submitted to you for decision, do not discuss it, even among yourselves, and do not permit others to discuss it in your presence. Should anyone try to discuss the case with you, please tell a bailiff. Second, do not talk to the attorneys, parties, or witnesses at all. Further, you shall not discuss this case with anyone, even your fellow jurors, family, and friends until you retire to deliberate. These restrictions apply not only in the courtroom, but in all places and at all times, because such a conversation, even if innocent and unrelated to this case, could affect the outcome of the trial. You must not use cell phones, Blackberries, the Internet, and other tools of technology, [including but not limited to iPad, iPhone, text messaging, Twitter, any blog or website, any Internet chat room, or any other social networking websites, including Facebook, My Space, LinkedIn, and YouTube] to communicate with anyone about this case. After you retire to deliberate, you may begin discussing the case with your fellow jurors, but you cannot communicate about the case with anyone else until you have returned a verdict and the case is at an end. Third, avoid all news accounts of the trial in any media form. Fourth, you must confine yourself to the evidence presented within the four walls of this courtroom so that the participants receive a fair trial. Do not conduct your own investigation. This means that during the trial you must not conduct any independent research about this case, the matters in the case, and the individuals or corporations involved in the case. In other words, you shall not consult dictionaries or reference materials; search the Internet, including Google, Bing, other websites, search engines, or blogs; or use any other electronic tools to obtain information about this case or to help you decide the case. Not following these instructions may make a new trial necessary. Finally, if you experience a personal problem, or are in doubt about your rights andduties, inform a bailiff who will tell me. I have no doubt of your integrity. I tell you about these rules only to prevent unintentional acts that might require us to try this case again. Now I will turn to your role in the trial process. … I want to return now to your fact-finding duties. You must determine the facts only from the evidence produced here in the courtroom. To do that, you may consider whatever I allow to be presented to you, for example: 1. the testimony of witnesses; 2. documents, photographs, charts, and other papers or things; 3. video or audio tape recordings; and 4. in-court demonstrations. You must not decide this case upon information that you or other jurors may have received outside of the trial from any source, including but not limited, to radio, television, newspaper, Internet, or third parties. However, in evaluating the evidence presented, you may rely upon your common sense and the general insights you have gained about human affairs as a result of your life experiences.475

474. Wis. Rec’ds. Mgmt. Comm., Wis. Jury Handbook, n.d. [2011?], at 12 http://www.wicourts.gov/services/juror/docs/handbook.pdf. 475. Wyo. Civ. Patt. J. Inst. 1.02 (2009). Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age A note to this instruction recommends that “this instruction be given in every case,” and that “[t]he bracketed language regarding technology should be modified to be consistent with changes in technology and social media.”476 The note also recommends that a similar instruction be given immediately prior to deliberations, and suggests the following language: During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the Internet, any Internet service, or any text or instant messaging service; or any Internet chat room, blog, or website such as Facebook, My Space, Linkedln, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.477

Criminal Instructions Wyoming’s criminal jury instructions address juror access to extrinsic information in the context of a recess instruction, but have not been updated to include the Internet and social media. Second, do not discuss the case either among yourselves or with anyone else during the course of the trial. [this includes your family, other jurors, persons involved in the trial, and any other persons.] Do not permit any third person to discuss the case in your presence and, if anyone does so despite your telling him or her not to, please report that fact to the bailiff as soon as you are able. Third, though it is a normal human tendency to converse with people with whom one is thrown in contact, please do not converse, whether in or out of the courtroom, with any of the parties or their attorneys or any witness. By this I mean not only do not converse about the case, but do not talk at all, even to pass the time of day. In no other way can all parties be assured of the absolute impartiality they are entitled to expect from you as jurors. Each of the lawyers already knows that no communication is permitted between counsel and jurors. Fourth, do not read about the case in the newspapers, or listen to radio or watch television broadcasts about the trial. If a newspaper headline or news broadcast about the case catches your eye or ear, do not examine the article or watch or listen to the broadcast any further. The person who wrote or is reporting the story may not have listened to all of the testimony, may emphasize an unimportant point, and simply may be wrong. You must base your verdict solely upon the evidence received by the Court during the trial.478

A note to this instruction adds that “It is also appropriate to direct jurors not to engage in personal research, such as going to the scene of the alleged crime or looking up facts or meanings of words in dictionaries or other sources,” but does not provide the language for such an instruction.479 A short form instruction for recesses includes a reminder of this admonition. During this recess and all other recesses, you must not discuss this case with anyone. This includes your family, other jurors, and anyone involved in the trial. If anyone attempts in any way to talk to you about this trial during a recess, it is your obligation to tell the bailiff immediately. Do not watch or listen to any news reports concerning this trial on television or on radio and do not read any news accounts of this trial in a newspaper. Do not speak at all with any of the parties, the witnesses or the attorneys.

476. Wyo. Civ. Patt. J. Inst. 1.02, 2010 Note (2009). 477. Id. 478. Wyo. Crim. Patt. J. Inst. 1.09A (2009). 479. Id., Note.

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Jury Instructions for the Modern Age You are required to keep an open mind until you have heard all of the evidence in this case, the closing arguments of counsel, and the final instructions of law provided by the Court.480

Other Sources Besides the official and unofficial instructions for each state, other organizations have responded to the challenge posed to the courts by juror use of the Internet and social media by drafting jury instructions to be used to dissuade jurors from accessing these sources during their jury service.

American College of Trial Lawyers The American College of Trial Lawyers approved its â&#x20AC;&#x153;Jury Instructions Cautioning Against Use of the Internet and Social Networkingâ&#x20AC;? in September 2010. The instructions include a variety of lengthy instructions on the issue for various stages of trial.481 For example, the College has formulated an instruction that is intended to be included in the summons for jury service. â&#x20AC;Ś [I]n order to assist the court in providing the litigants with a fair trial, it is important that you refrain from conducting any research which might reveal any information about any case pending before the court, or any of the parties involved in any case. Therefore, you should avoid any attempts to learn which cases may be called for trial during your jury service, or anything about the parties, lawyers or issues involved in those cases. Even research on sites such as Google, Bing, Yahoo, Wikipedia, Facebook or blogs, which may seem completely harmless, may lead you to information which is incomplete, inaccurate, or otherwise inappropriate for your consideration as a prospective juror. The fair resolution of disputes in our system requires that jurors make decisions based on information presented by the parties at trial, rather than on information that has not been subjected to scrutiny for reliability and relevance.482

The instruction for empanelled jurors is particularly detailed: Now that you have been chosen as jurors for this trial, you are required to decide this case based solely on the evidence and the exhibits that you see and hear in this courtroom. At the end of the case, I will give you instructions about the law that you must apply, and you will be asked to use that law, together with the evidence you have heard, to reach a verdict. In order for your verdict to be fair, you must not be exposed to any other information about the case, the law, or any of the issues involved in this trial during the course of your jury duty. This is very important, and so I am taking the time to give you some very detailed explanations about what you should do and not do during your time as jurors. First, you must not try to get information from any source other than what you see and hear in this courtroom. This means you may not speak to anyone, including your family or friends. You may not use any printed or electronic sources to get information about this case or the issues involved. This includes the internet, reference books or dictionaries, newspapers, magazines, television, radio, computers, Blackberries, iPhones, Smartphones, PDAs, or any other electronic device. You may not do any personal investigation, including visiting any of the places involved in this case, using Internet maps or Google Earth, talking to any possible witnesses, or creating your own demonstrations or reenactments of the events which are the subject of this case. Second, you must not communicate with anyone about this case or your jury service, and you must not allow anyone to communicate with you. In particular, you may not communicate about the case via emails, text messages, tweets, blogs, chat rooms, comments or other postings, Facebook, MySpace, LinkedIn, or any other websites. This applies to communicating with your fellow jurors until I give 480. Wyo. Crim. Patt. J. Inst. 1.09B (2009). 481. See Amer. Coll. of Trial Lawyers, Jury Instrs. Cautioning Against Use of the Internet & Social Networking, Sept. 2010, http://www.actl.com/AM/Template.cfm?Section=Advanced_ Search&content=20101&template=/cm/contentdisplay.cfm&contentfileid=1257. 482. Id. at 1. Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age you the case for deliberation, and it applies to communicating with everyone else including your family members, your employer, and the people involved in the trial, although you may notify your family and your employer that you have been seated as a juror in the case. But, if you are asked or approached in any way about your jury service or anything about this case, you must respond that you have been ordered not to discuss the matter and to report the contact to the court. The court recognizes that these rules and restrictions may affect activities that you would consider to be normal and harmless, and I assure you that I am very much aware that I am asking you to refrain from activities that may be very common and very important in your daily lives. However, the law requires these restrictions to ensure the parties have a fair trial based on the evidence that each party has had an opportunity to address. If one or more of you were to get additional information from an outside source, that information might be inaccurate or incomplete, or for some other reason not applicable to this case, and the parties would not have a chance to explain or contradict that information because they wouldn’t know about it. That’s why it is so important that you base your verdict only on information you receive in this courtroom. Some of you may have heard about trials where the jurors are not permitted to go home at night, or were sequestered for the entire length of the trial. For a variety of reasons, this is something we rarely do anymore. It is far more of an imposition on your lives than the court wishes to make. However, it was effective in keeping jurors away from information that might affect the fairness of the trial—that was the entire purpose. You must not engage in any activity, or be exposed to any information, that might unfairly affect the outcome of this case. Any juror who violates these restrictions I have explained to you jeopardizes the fairness of these proceedings, and a mistrial could result that would require the entire trial process to start over. As you can imagine, a mistrial is a tremendous expense and inconvenience to the parties, the court and the taxpayers. If any juror is exposed to any outside information, or has any difficulty whatsoever in following these instructions, please notify the court immediately. If any juror becomes aware that one of your fellow jurors has done something that violates these instructions, you are obligated to report that to the court as well. If anyone tries to contact you about the case, either directly or indirectly, or sends you any information about the case, please report this promptly as well. These restrictions must remain in effect throughout this trial. Once the trial is over, you may resume your normal activities. At that point, you will be free to read or research anything you wish. You will be able to speak—or choose not to speak—about the trial to anyone you wish. You may write, or post, or tweet about the case if you choose to do so. The only limitation is that you must wait until after the verdict, when you have been discharged from your jury service.483

The group also created a suggested message that jurors can send to friends and family, asking them not to send them any information about the case via e-mail, as well as a pledge for jurors to sign promising to refrain from using social media during trial. Suggested Message for Impaneled Jurors to Send to Family and Friends I am sending this message to you as instructed by Judge        . I am now a sworn juror in a trial. I am under a court order not to read or discuss anything having to do with the trial, the parties or lawyers involved, or anything else concerning my jury service. Please do not send me any information about the case or my jury duty, and please do not ask me any questions or make any comments about the case or my jury duty. I will be following these rules for the length of the trial, which is expected to last approximately     . I will send another note when my jury duty is completed and I am no required to follow the court order.484

483. Id. at 2-3. 484. Id. at 5.

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Jury Instructions for the Modern Age Suggested Statement of Compliance for Jurors to Sign I agree that during the duration of the trial in             , I will not conduct any independent research into any of the issues or parties involved in this trial. I will not communicate with anyone about the issues or parties in this trial, and I will not permit anyone to communicate with me. I further agree that I will report any violations of the court’s instructions immediately.                       JUROR No     485

“When Worlds Collide” In his article in the last issue of this journal, retired Maryland Circuit Court Judge Dennis Sweeney examined the problem of “digital natives” – who were raised in the Internet age, and have never known another way of acquiring information or communicating with others – serving as jurors, and the implications for the courts. He proposed jury admonitions to explain to these people why they must refrain from their normal information gathering and sharing activities while serving as jurors. Model Admonition (for delivery to venire at earliest possible point post-summons) You as jurors must decide this case based solely on the evidence presented in this courtroom. The evidence you will consider for this case has been reviewed by the parties and the court, and is the evidence that is relevant to this case and the issues you must decide. You must not conduct on your own any research or investigation about the case or the individuals involved in it. I mean “research” in the broadest possible meaning of the word. That is, you cannot use a public library, a dictionary, or a simple Google search to clarify or obtain, for example, even something as simple as the definition of a word you do not understand. Any information you obtain outside the courtroom could be misleading, inaccurate, or incomplete. Relying on this information is unfair because the parties would not have the opportunity to refute, explain or correct it. You may not consult any dictionaries or reference materials. You should not search the Internet, web sites, social media sites, blogs, or any other source for information about the case or the persons involved in the case. Places or locations may be mentioned, but you should not visit any place or location related to the case. You should also not seek any information about the place or location on the Internet or through web sites such as MapQuest or Goggle maps. Until you retire to deliberate and decide this case, you may not discuss this case with anyone, even your fellow jurors. You should not express any opinion about the case or talk about the case with anyone, including courtroom personnel, spectators or anyone participating in the trial. Most, if not all, of you use cell phones, Blackberries, smart phones or computers to communicate with family, friends, co-workers or others. During this trial, you cannot communicate to anyone any information about this case, or your opinions or views about it or the individuals participating in it by any method or means. You may also be involved in social media or networking sites such as Facebook, MySpace, LinkedIn, YouTube or Twitter, and be accustomed to frequently communicating your views, observations or opinions on these sites. During this trial, you must not use these sites to communicate anything about this case or the individuals participating in it.

485. Id. at 6. Reynolds Courts & Media Law Journal

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Jury Instructions for the Modern Age Model Short Form Admonition (for delivery prior to recesses or breaks) You will recall that previously I instructed you in great detail that you must decide this case solely on the evidence presented in this courtroom. Because we are about to take a break, I am now reminding you of that warning, and I want you to once again to fully commit to your fellow jurors, to the parties in this case and to the court, that you will not use cell phones, smart phones, Blackberries, iPhones, Facebook, text messaging, Google, or any other form of communication to send or receive messages about this case, even with close friends or family. Final Instruction (for delivery prior to deliberations) During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You must decide this case based only on the evidence that you and your fellow jurors heard together in the courtroom. You must not consider any other information. You must not do any outside research or investigation on your own. Do not use any books, electronic devices, computers or phones to do research on the internet or otherwise about this case even if you believe that the information would be helpful to you. While you are deliberating about the case you must not have in your possession any computers, cellphones, or other electronic communication devices and you must not communicate with anyone outside the jury room. We have collected these devices from you and will hold them under custody of the court. If there are breaks in deliberations, I may allow you to communicate on your electronic device to your family or friends, but there must be no communications about the case or the deliberations that you are engaged in. If you have any questions about this instruction or the restrictions that apply to you, please send me a note and I will respond to it. If you become aware that any other juror has violated this instruction, please also let me know by a note.486

“Model Jury Instructions for the Digital Age” Thaddeus Hoffmeister, an Associate Professor at the University of Dayton School of Law who studies and blogs on jury issues, has created a set of jury instructions regarding social media whichthat explain to the jurors the reasoning and rationale for restrictions on their use of social media. Introduction: As you know, serving on a jury is an important and serious responsibility.  And part of that responsibility is to decide the facts of this case using only the evidence that the parties will present in this courtroom.  As I will explain further in a moment, this means that I must ask you to do something that may seem strange to you: to not discuss or do any research on this case.  I will also explain to you why this rule is necessary, and what to do if you encounter any problems with it. Communications: During this trial, do not contact anyone associated with this case. If a question arises direct it to the attention of me or my staff. Also, do not discuss this case during the trial with anyone, including any of the attorneys, parties, witnesses, your friends, or members of your family. This includes, but is not limited to, discussing your experience as a juror on this case, discussing the evidence, the lawyers, the parties, the court, your deliberations, your reactions to testimony, exhibits, or any aspect of the case or your courtroom experience. “No discussion” extends to all forms of communication, whether in person, in writing or through electronic devices or media such as: e-mail, Facebook, MySpace, Twitter, instant messaging, Blackberry messaging, I-Phones, I-Touches, Google, Yahoo, or any internet search engine or any other form of electronic communication for any purpose whatsoever, if it relates to this case.

486. Dennis Sweeney, Worlds Collide: The Digital Native Enters the Jury Box, 1 Reynolds Cts. & Media L. J. 121 (2011).

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Jury Instructions for the Modern Age I will give you some form of this instruction every time we take a break. I do that not to insult you or because I don’t think you are paying attention, but because, in my experience, this is the hardest instruction for jurors to follow. I know of no other situation in our culture where we ask strangers to sit together watching and listening to something, then go into a little room together and not talk about the one thing they have in common that they just watched together. There are at least three reasons for this rule. The first is to help you keep an open mind. When you talk about things, you start to make decisions about them and it is extremely important that you not make any decisions about this case until you have heard all the evidence and all the rules for making your decisions, and you will not have that until the very end of the trial. The second reason is that by having conversations in groups of two or three during the trial, you will not remember to repeat all of your thoughts and observations to the rest of your fellow jurors when you deliberate at the end of the trial. The third, and most important, reason is that by discussing the case outside of the jury room you increase the likelihood that you will either be influenced by an outside third party or you will reveal information about the case to a third party. If any person tries to talk to you about this case, tell that person you cannot discuss the case because you are a juror. If that person persists, simply walk away and report the incident to me or my staff. Research: Do not perform any research or make any independent personal investigations into any facts, individuals or locations connected with this case. Do not look up or consult any dictionaries or reference materials, search the internet, websites, or blogs; or use any other electronic tools or other source to obtain information about any facts, individuals, or locations connected with this case. Do not communicate any private or special knowledge about any facts, individuals, or locations connected with this case to your fellow jurors. Do not read or listen to any news reports about this case. The law prohibits a juror from receiving evidence not properly admitted at trial. If you have a question or need additional information, contact me or my staff. I, along with the attorneys, will review every request. If the information requested is appropriate for you to receive it will be released in court. In our daily lives, we may be used to looking for information on-line and “Google” things as a matter of routine. Also, in a trial it can be very tempting for jurors to do their own research to make sure they are making the correct decision, but the moment you try to gather information about this case or the participants is the moment you contaminate the process and violate your oath as a juror. Looking for outside information is unfair because the parties do not have the opportunity to refute, explain, or correct what you discovered or relayed. The trial process works by each side knowing exactly what evidence is being considered by you and what law you are applying to the facts you find. You must resist the temptation to seek outside information for our system of justice to work as it should. Once the trial is over you may research and discuss the case as much as you wish. You may also contact anyone associated with this case. [Are there any of you who cannot or will not abide by these rules concerning communication or research with others in any way during this trial?] [Are there any of you who do not understand these instructions?]. Ramifications: If you communicate with anyone about the case or do outside research during the trial, it could lead to a mistrial, which is a tremendous expense and inconvenience to the parties, the court and taxpayers. Furthermore, you could be held in contempt of court and subject to punishment such as paying the costs associated with having a new trial. If you find that one of your fellow jurors has conducted improper communications or research or you conduct improper communications or research, you have a duty to let me or a court officer know, so that we can protect the integrity of this trial.487

487. Thaddeus Hoffmeister, Model Jury Instructions for the Digital Age, Juries blog, Feb. 28, 20011, http://juries.typepad.com/juries/2011/02/model-jury-instructions-for-the-digital-age.html. Professor Hoffmeister expands on these instructions in his forthcoming article, Google, Gadgets and Guilt: The Digital Age’s Effect on Jurors, to be published in the University of Colorado Law Review. Reynolds Courts & Media Law Journal

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