Emily McDermott is a freshman planning to major in Neuroscience and Public Policy. An earlier version of this essay was originally written for the Cognitive Neuroscience and Law FOCUS course, “Law Ethics and Responsibility” taught by Michael Newcity.
The courtroom has always been a public arena. From the world’s very first courts in Mesopotamia, which held trials in public spaces, to the open-air ancient Greek courts that boasted large audiences of spectators, law has always been available to the public, and sometimes even designed for it. Law also has deep roots in performance (think of the popularity of Law & Order, John Grisham novels, and the television revolution spurred by the O.J. Simpson trial). The public’s fascination with law has continued to develop in the modern age, accelerated by the proliferation of legal information and content on social media.
The American public has long been fascinated with the drama of a trial, the lives of lawyers, and the intricacies of court proceedings. A cottage industry of law-themed entertainment—now driven by social media, as well as television and film—has emerged in response to that growing demand. This has had significant bidirectional consequences—just as social media increases public engagement and speculation about lurid ongoing cases (imagine the O.J. Simpson trial in the age of Facebook and X), so too can social media fixation on a case have an influence on proceedings inside the courtroom. Fears that public-sphere pressure from social media has directly affected verdicts, argumentation, or witness testimony at scale may be overblown at this point. But social media is clearly already affecting the fairness of trials in the United States in one crucial way: influence on jury impartiality.
In our legal system, jury selection (or voir dire) is an onerous, multi-step process—the prosecution, defense, and the judge all have an interest in seating a fair and balanced jury. The process incorporates randomness (a feature of fair jury construction since ancient Athens) and specific tests of individual bias —jurors are first chosen from a jury wheel, respond to a qualification questionnaire, and are placed in a pool of fifty or sixty potential jurors. Jurors are then interviewed, sometimes rigorously, by the attorneys and judges involved in the case to identify potential conflicts of interest, sources of bias, or legitimate excuses to not participate. In the final step, attorneys are allowed to remove unacceptable or undesirable jurors, until the pool of twelve takes shape. This process is designed to ensure that the jury is diverse, representative, and most importantly, unbiased. During a case, a jury is to be sequestered from any and all potentially influential outside information about the case: jurors should not mingle with anyone who has a stake in its outcome, nor should the jury conduct its own research or investigations into the factual and legal details of the case.
This avoidance-of-information requirement was once not too onerous for most juries: prior to the emergence of social media, legal information regarding any given case was not easily accessible. There was a delay in how information regarding the case and the public’s opinion of the case could reach the jurors. Because of this, jurors had to rely exclusively on the actual evidence presented to them in the court in order to make their decisions. But as media has transformed and as technology has evolved, potentially influential information can become so omnipresent in ordinary arenas of media, culture, and daily life that even the most well-meaning and fastidious of jurors can come across it accidentally. Some, however, do find it on purpose. One questionnaire found that 46% of participants on a jury would look up the defendant on social media.
Many Americans rely on social media and search engines for news, communications, and immediate access to information, as needed or desired. This is the phenomenon of internet dependability, and jurors—representative of the broader public as they are intended to be—are not miraculously immune from it. According to a recent study, “over sixty percent of Americans rely on social media as their main source of news”. This figure includes information regarding high profile legal cases. Americans follow blockbuster trials (think Johnny Depp v. Amber Heard, Gwyneth Paltrow, Harvey Weinstein, and the Trump hush money trial) through social media apps. On the same apps, thousands of increasingly popular accounts are dedicated to giving legal advice, explaining basic legal proceedings, and analyzing current cases. In this ecosystem, prejudicial background on court participants and conspiracy theories run rampant. They can be recorded and published at the push of a button, with the purpose of viewer engagement, not education. These carefully curated clips are omnipresent on the web, but they come at a cost to the impartiality of those involved in legal proceedings, specifically jurors.
Illusory truth effect
One of the most dangerous cognitive traps produced by social media is a concept called the illusory truth effect. This phenomenon occurs when one hears the same false information repeatedly and comes to believe that it is true. People can still be vulnerable to this effect when they are sure that the information is false. The structure of social media—including the role of algorithms in encouraging rapid-fire consumption of the same or similar content—has exponentially increased instances of the illusory truth effect. Constant reinforcement of false, sensationalized information, boosted by the algorithm, can ultimately result in consumers and users coming to believe and accept that information as true. Jurors, if they are regular social media users, are not exempt from this. If content related to the trial manages to make its way to a juror’s feeds, it is easy for this information to become muddled with the real evidence the jury is presented with in the trial. This is a major problem because if jurors still follow social media during the trial and algorithms present them with information related to the trial in question, the juror will be exposed to new, often low-quality and biased information about the case. Because the courtroom demands higher evidentiary standards than social media, jurors could be exposed to flawed and dubious information about the case and could subconsciously come to treat it with the same truth value as the rigorously presented cases in court because of the illusory truth effect.
Groupthink
Another similar jury-impartiality risk posed by social media is the concept of “groupthink.” “Groupthink” occurs when a group of well-intentioned people make irrational or non-optimal decisions spurred by the urge to conform or because they think that going against the majority is impossible. Jurors on social media will easily be able to take the “pulse” of public sentiment about their case. Jurors on social media will form a picture of the kind of public outcry or scrutiny they will face for making a given decision in the case. Even if faulty or biased information jurors encounter on social media does not provide an illusory truth effect and sway their opinions on the merits of the case, a juror’s knowledge of what the public perceives to be the “right” can also affect a juror’s decision. This concern predates social media and is a major part of historical debates over the integrity of juries. Judge Stuart H. Perry argued against open trial in 1931 when he noted that newspapers were “asserting their moral authority over audiences”. Social media has intensified this problem by an order of magnitude. A juror is less likely to vote for a verdict that makes them seem immoral, evil, or even just out of touch in the public eye. Because social media provides a megaphone to the most extreme and emotional opinions (far more so than, say, newspapers, or even cable news) jurors who are not forbidden to follow social media may feel pressured to conform to the most widely (or deeply) held public opinion. Online jurors might embrace “group think” in order to avoid widespread anger and moral judgement. This might be a conscious decision for their own safety or another subconscious one, which cannot be teased out as a discrete effect on the vote.
One of the most recent examples of these phenomena—the illusory truth effect and groupthink—in action is the notorious Johnny Depp v. Amber Heard defamation trial. The trial exposed the challenges of achieving fair outcomes in an environment mediated by social media scrutiny: the case was a major trending topic on social media for months and, in turn, its proceedings appeared to be shaped by the pressures of outside actors and commentators on social media. Social media consultant Matt Navarra commented this about the coverage of the trial: “it’s been a social media circus of commentary from creators, and influencers, and lay people. I think that the truth was lost on social media some time ago”. The frenzy of Depp v. Heard content became so extreme that even brands sought to capitalize on the attention: Milani Cosmetics created a TikTok video in which Heard’s defense team entered as evidence a color correcting kit that Heard had used throughout their relationship as proof of the abuse she suffered. The example they used happened to be produced by the company Milani Cosmetics. The company then produced and published a video on Tik Tok showing that the compact the defense had used as evidence had not yet been sold by the company at the time they claimed Heard had been using it. This video amassed 40 million views at the height of the trial. The video essentially portrays Heard as a liar in the eyes of the public. If a juror were to come across this post, it could lead them to question the validity of all the evidence that Heard’s team had presented in the case. This ties into the concept of the illusory truth effect. This video was one of thousands that questioned the truth of Heard’s evidence. If jurors repeatedly saw those videos they might have started to question the veracity of Heard’s defense.
Most solutions to this problem involve infringement on personal privacy and liberties. For example, one solution could be evaluating a juror’s social media presence as criteria for jury selection. However, acquiring this information could lead to a lot of invasive social media searching. Maybe more drastic measures could be taken: could the United States end televised trials altogether, to try to limit public interest in celebrity court cases? According to the Federal Rule of Criminal Procedure 53, cameras are not allowed in the courtroom for federal criminal trials (this law does not apply to state courts). Judges could also impose stricter penalties, including gag orders backed up by the threat of jail time on plaintiffs and defendants who try to encourage their social media followers to ramp up pressure on the judge, jurors, or legal process. But the Depp v. Heard trial reveals that that is often not enough: neither of them seemed to be actively stoking the anger of their social media followers. What is to be done in that case?
The most likely solution would be adding social media restrictions to sequestered jurors—possibly having them remove the apps from their phones while they are sequestered and blocking the websites temporarily as well. Most juries, however, are not sequestered, and where should we draw the line on sufficiently intrusive public interest? Execution of this strategy depends on individual judges to provide clearer instructions and harsher fines for violations of those instructions. That kind of juror misconduct would include seeking out or introducing outside information into the trial, such as looking up the plaintiff, defendant, or trial on social media. Typically, judges will dismiss jurors for this behavior during a trial, but this can even act as an incentive for jurors who have begrudgingly been summoned. However, raising the standard by more strictly imposing a fine for violating these rules could help provide a deterrent against vigilante juror research. The effect of social media—including access to news, exposure to pressure groups like fan armies and political movements, and the proliferation of potentially unsubstantiated or biased information—on jury impartiality remains a new challenge with no widely-accepted solutions. The jury system has always been built on trust and now there is a much higher level expected. Going forward, we must decide how much we trust jurors (and ourselves) to remain unbiased and fair consumers of information in the social media age. Law is a dynamic field. It has adapted to changes in technology and the media before, and it will again.
