(Photo: Jason Doiy)

Jury misconduct didn’t start with Twitter, but reports of jurors behaving badly via social media are on the rise. In a new study, two Illinois judges urged their colleagues to tackle the social media problem head-on in jury instructions.

U.S. District Judge Amy St. Eve of the Northern District of Illinois and Judge Charles Burns, in the criminal division of Cook County, Ill., Circuit Court, surveyed hundreds of jurors in their respective courts during the past three years. They asked jurors about their temptation to communicate about a case through social networks while serving.

Most jurors said they didn’t feel tempted, with many citing the presiding judge’s social media-specific instructions. St. Eve and Burns, along with co-author and Jones Day associate Michael Zuckerman, said the survey showed that generalized instructions that didn’t explicitly discuss social media were insufficient.

St. Eve began surveying jurors in 2011. Along with Zuckerman, a former clerk, she published her initial results in 2012, analyzing 140 responses from an informal survey of federal jurors in her court.

St. Eve said in an interview that when the first study came out, other judges told her it was useful to have numbers quantifying the problem and asked how to adjust their jury instructions. “And some who aren’t, let’s say, familiar with the technology or keeping up with it found it helpful,” she added.

In the updated study, published in late February in Duke Law & Technology Review, St. Eve and her co-authors surveyed an additional 443 jurors in federal and state courts in Illinois.

They highlighted recent instances of juror misconduct, including a juror in Mississippi who posted on Facebook, “I guess all I need to know is GUILTY. lol.,” and sent a “friend” request to a trial witness. The authors found anecdotal evidence that juror misconduct involving social media had kept pace with growing use of the technology. Other examples included jurors who tweeted during trials or attempted to connect with lawyers, parties or witnesses through Facebook.

Of the 583 jurors surveyed since St. Eve began her study in 2011, 8 percent, or 47 jurors, reported being tempted to communicate about their case via social media. Sixteen jurors, or just under 3 percent, didn’t respond, and the remaining 89 percent said they felt no temptation.

The responses were roughly the same from the federal and state court jurors. Twenty jurors said they did not use social media.

Of the 47 jurors tempted to use social media, 45 said they ultimately did not. The remaining two didn’t indicate whether they acted on the urge. Many jurors—those who were tempted and those who were not—said they were influenced by the presiding judge’s social-media instructions.

St. Eve and her co-authors concluded that explicit instructions from judges regarding social media were the best way to make sure juries remained impartial. They noted that jurors might not realize that talking about a case via social media while they’re serving is wrong.

“As dozens of jurors told us,” the authors wrote, “they did not communicate about the case on social media because of the ‘Judge’s instruction,’ or because ‘[t]he Judge made it pretty clear not to.’ “

The authors recommended using jury instructions that directly address social media, as opposed to “more draconian” methods such as threatening jail time or completely banning technology. “The law presumes that jurors will follow their instructions, and in the social-media context, scores of actual jurors told us that they actually did,” they said.

St. Eve and her co-authors urged judges to talk to jurors about social media “early and often.” The instructions, according to the study, should be specific and tie in to other language about not doing independent research and the importance of fair trials.

“One thing that jumped out at me is jurors often go back to the oath that they took as one reason that they don’t look at social media—that they took an oath to do the right thing,” St. Eve said. The study suggests judges remind jurors of their oath when discussing social media.

She hopes lawyers read the results, and encouraged them to ask for social-media jury instructions if the judge doesn’t include them.

“Our survey data may be unscientific, but the voices of actual jurors speak volumes,” the authors wrote. “They tell us that jurors tend to follow properly crafted social-media instructions; that jurors generally appreciate their critical role in the judicial process; and that these conclusions apply with equal force to jurors in both federal and state court.”

Contact Zoe Tillman at ztillman@alm.com. On Twitter: @zoetillman.