How Social Media Impacts Jury Trials

By Jacqueline Vinaccia, Partner

I recently shared a blog post about how social media is being used as evidence in litigation. While the evidence aspect is a big part of social media’s impact on litigation, it’s not the only way it’s impacted the law. Social media also has a big impact on jury trials and how jurors are selected. In fact, many attorneys and legal experts have questions whether defendants —? especially in high profile cases — can receive a fair trial in the age of social media. This was the case with Dzokhar Tsarnaev, the surviving Boston marathon bomber, whose attorneys took his death penalty argument to the U.S. Supreme Court because of the social media bias. Here is a look at some of the ways social media has impacted jury trials and selection.

In 2012, when social media was starting to make its way into society, federal judges received instructions regarding the use of social media that were to be used to counsel jurors. In 2020, those instructions were updated and focused on how to deter jurors from using social media to research or communicate about cases. The new instructions cautions jurors about how social media can impact their ability to deliver an impartial verdict. The instructions also suggested that judges give reminders to jurors throughout the trial, not just at the beginning.

One of the biggest ways social media has impacted litigation is through potential juror selection, or voir dire. Traditionally, jury selection relied on a somewhat random process, where individuals were chosen based on certain demographic criteria. However, in today’s legal landscape, many attorneys scrutinize the online presence of prospective jurors in order to gain insight into what types of people they are and how that would impact their case. Social media profiles provide so much information that can be used to evaluate a juror’s biases, opinions and potential leanings on a case.

This type of jury “research” does raise concerns. First, there are questions about the ethics of using social media to evaluate potential jurors; especially given the fact that social media is very much curated and does not project a realistic view of a person. This selective presentation can also lead to the exclusion of jurors based on preconceived notions that may not accurately reflect their true beliefs.

Additionally, the influence of social media extends beyond the jury selection and pre-trial phase, and into jury deliberations. Despite being instructed to base their decisions solely on the evidence presented in the courtroom, it’s virtually impossible for individuals to block out all external content, especially when social media is so ingrained into daily life. Jurors may be exposed to extraneous information, including news articles and social media posts that could taint their perception of the information gleaned in court.

Striking a balance between leveraging the potential benefits of social media and safeguarding the fairness of the judicial process is an ever-evolving task in today’s digital age.?

As we grapple with these challenges, it becomes imperative to reassess and adapt our legal frameworks to ensure that justice is not compromised in the pursuit of information in the interconnected world we live in today. If you are facing litigation and questioning whether social media has a place in your case, it’s best to consult with an experienced litigation attorney who can advise you on how to proceed.

Jacqueline Vinaccia is a San Diego trial attorney, litigator, and national fee auditor expert, and a partner at Vanst Law LLP. Her practice focuses on business and real estate litigation, construction disputes, and municipal litigation. Her attorney fee analyses have been cited by courts and arbitrators throughout the United States. She has published and presented on the topic of attorney fee invoicing and is considered one of the nation’s top fee experts by the National Association of Legal Fee Association.