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Abstract

This Essay analyzes criminalization as an alternative solution to juror misconduct arising from social media use, where jury instructions fail to prevent such misconduct. Despite the lack of scholarship on the subject, criminalization is far from a radical solution—California enacted legislation in 2011 that sought to criminalize jurors’ improper use of social media. By criminalizing juror misconduct, states can deter misconduct from occurring while also instilling the importance of the jury institution in the public. At the same time, it is important to be cognizant of objections that judges and jurors may raise. This Essay proceeds in three parts. Part I outlines persistent problems that arise from the use of social media as well as several deficiencies of jury instructions. Part II lays out California’s legislative approach, where juror misconduct arising from social media use may be punished as a misdemeanor. Finally, Part III analyzes benefits that arise from criminalization as well as several anticipated objections to the approach.

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