New Model Instructions to Jurors on Social Media Use

The Judicial Conference Committee for the federal courts has recently updated its instructions regarding jurors and social media.  These new instructions are available here

"The overwhelming majority of judges take steps to warn jurors not to use social media during trial, but the judges surveyed said additional steps should be taken," said Judge Julie A. Robinson, the Conference Committee on Court Administration and Case Management (CACM) chair. "The judges recommended that jurors frequently be reminded about the prohibition on social media before the trial, at the close of a case, at the end of each day before jurors return home, and other times, as appropriate. Jurors should be told why refraining from use of social media promotes a fair trial. Finally, jurors should know the consequences of violations during trial, such as mistrial and wasted time. Those recommendations are now part of the guidelines."

Another resource is GOOGLE, GADGETS, AND GUILT: JUROR MISCONDUCT IN THE DIGITAL AGE by Thaddeus Hoffmeister

[T]he Article explores possible steps to limit the negative impact of the Digital Age on juror research and communications. While no single solution or panacea exists for these problems, this Article focuses on several reform measures that could address and possibly reduce the detri-mental effects of the Digital Age on jurors. The four remedies discussed in this Article are (1) pe-nalizing jurors, (2) investigating jurors, (3) allowing jurors to ask questions, and (4) improving juror instructions. During the discussion on jury instructions, this Article analyzes two sets of jury instructions to see how well they adhere to the suggested changes proposed by this Article. This is followed by a draft model jury instruction.

KY SC March 22 - Smith - Instructions and Court Costs

ROBERT DWAYNE SMITH V. COMMONWEALTH, 2011-SC-285-MR, 3/22/12, Affirming in Part, Vacating and Remanding in Part. 

First-degree robbery and PFO I – 32 years. The evidence was, only, that Smith struck the victim.  But the instructions allowed the jury to convict if they thought Smith or one of his complicitors struck the victim.  While the first-degree robbery instruction did include a theory unsupported by the record, because there is no possibility that any juror voted to convict the defendant under the unsupported theory, the error was harmless. Case remanded for entry of a new judgment excluding surplus vague provision that could be construed as imposing court costs.

Contributed by Susan Balliet

Featured Case - Hall - Instructions on Lesser-Included Offense

Douglas Wayne Hall v. Commonwealth, 2009-SC-000244
Opinion of the Court by Chief Justice Minton- Affirming, in part, and reversing and remanding in part.
Schroder, J., concurs in part and dissents in part by separate opinion.

Hall was convicted of second-degree manslaughter, first-degree assault, first-degree burglary, and first-degree robbery.  Hall argued that a strict same-elements test should be used for determining the appropriateness of instructing on a lesser-included offense, and that under such an approach, the jury should not have been instructed on assault as a lesser- included offense of murder. 

The Supreme Court rejected this approach and followed Perry v. Commonwealth.  A strict elements test calls for looking at the elements of a crime rather than looking at the facts set out in a particular case.  For example, if a person is charged with murder, under a strict elements test, assault could not be given as a lesser- included offense because the state of mind for assault is not included in the elements of murder.  However, under the facts of a particular case, a jury could find assault when someone is charged with murder.  The Court concluded that under the facts of this case, the jury could have found assault.  Hall objected to an assault instruction but asked that if one were given, that a facilitation- to- assault instruction also be given.  The Court found that despite Hall’s denials of knowing of his co-defendant’s intent and of providing a gun to his co-defendant, there was evidence to support an instruction on facilitation to assault.  That is, the jury was not obligated to accept Hall’s denial of knowledge of the co-defendant’s intent or his denial of giving the gun to him and could have inferred Hall did have such knowledge but did not intend to promote the assault.

Contributed by Brandon Jewell