Standard 8-5.5. Cautionary Jury Instructions

• Library: ABA Standards for Criminal Justice--Fair Trial and Public Discourse (ABA) (2019 Ed.)

Standard 8-5.5. Cautionary Jury Instructions

(a) The court should instruct potential jurors and jurors that they must:

(i) avoid any extrajudicial information about the case;
(ii) not seek out any extrajudicial information related directly or indirectly to the case;
(iii) not communicate about the case with anyone except as authorized by the court; and
(iv) immediately inform the court if they become aware that any other juror has violated the court's instructions.

(b) The court's instructions should explain the rationale for these prohibitions and specifically address how the prohibitions relate to the types of information sources and means of communication that the jurors and potential jurors may be accustomed to using in their daily lives.

(c) These instructions should be given:

(i) to potential jurors at the beginning of jury selection, and, as warranted, throughout the jury selection process until a jury has been selected and sworn; and
(ii) to jurors at the conclusion of every trial day, and before breaks if the court deems it appropriate.

(d) If, during the trial, the court determines that information has been disseminated or otherwise made publicly available that goes beyond the record on which the case is to be submitted to the jury and raises serious questions of prejudice, the court may on its own motion or on the motion of either party question each juror, out of the presence of the others, about exposure to that information. The examination should take place in the presence of counsel, and a record of the examination should be kept. If the court determines that a juror is no longer likely to be able to render a fair and impartial verdict based solely on the evidence in the trial, the court should excuse the juror.

(e) The court should consider providing post-verdict guidance to jurors concerning any inquiries they may receive about the case including their right to respond or not respond to inquiries about the case and cautioning them about related risks, including the potential prejudice to subsequent related proceedings.

Related Standards

ABA Standards for Criminal Justice, Trial by Jury 15-4.1, 15-4.3, and 15-4.4 (3d ed. 1996)

ABA Principles for Juries & Jury Trials 18 (2005)

American College of Trial Lawyers, Jury Instructions Cautioning Against Use of the Internet and Social Networking (2010)

Commentary

This Standard provides guidance regarding the cautionary instructions that trial courts give to jurors and potential jurors about having any extrajudicial communications about the case or researching the case on their own. The Standard updates the prior edition's Standard to make it more explicitly tailored to jurors' use of electronic communications, as well as more traditional forms of communications. Because the most popular devices and platforms unquestionably will change every few years (if not sooner), the...