Innocent Until Tweeted: How New Media Threaten an Old System, and a Framework for Fixing American Courts

Abstract

The Sixth Amendment guarantees criminal defendants the right to an impartial jury. To protect this promise, jurors must, as stated in Patterson v. People of State of Colorado, ignore "outside influences" and determine guilt or innocence based solely on evidence offered in court. Courts are responsible for protecting jurors from these influences in two ways: first, by preventing them from seeking external information during the course of a trial, and second, by ensuring that jurors execute their role without carrying preconceived notions about a defendant into trial. These responsibilities, and thus the jury process as a whole, is threatened when a juror takes to social media, as both impartiality and the ability to maintain an open mind throughout trial are put in jeopardy. State courts have attempted to curb the problem by issuing social media jury instructions, limiting access to smartphones, and even supervising Internet activity—but these efforts have done little to eliminate the problem, and juror misconduct on social media continues to grow in the face of large-scale digital media proliferation. This study outlines the scholarly and legal frameworks for monitoring and managing social media usage by jurors in the courtroom, intertwined with conceptual rationales for social media reform in criminal trials. Using a Constant Comparative Analysis (CCA) methodology, this paper qualitatively assesses the current state court frameworks in place, interwoven with rhetorical critique of persuasive appeals, in order to assess and analyze the hurdles that the criminal justice system faces with regard to jurors' use of social media. Using this analysis, this paper suggests an approach that courts might take in devising and implementing more effective instructions for social media use by jurors.