When Technology Threatens the Right to an Impartial Jury

When Technology Threatens the Right to an Impartial Jury

12.1.2023

By Regina Stuart

The United States Constitution contains provisions that support the right to a trial by an impartial jury in both criminal and civil cases. As the Sixth Amendment explicitly states, “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.”1 The Seventh Amendment, which guarantees a right to a trial by jury in civil cases, has long been interpreted to include implicitly the guarantee that a civil jury be impartial.2 Both of these constitutional rights make clear a foundational principle of the justice system – that in order to yield a fair trial, jurors must be impartial.

This article will discuss what “impartiality” means in the context of jurors and discuss how the right to impartiality is being protected in the internet age. It will examine the main procedures courts employ to protect the right to an impartial jury and it will address challenges to maintaining impartiality given the pervasiveness of the internet. Specifically, this article will address those challenges as manifested in two re- cent cases: Sarah Palin’s lawsuit against The New York Times, where jurors received a push notification to their phones about the case, and the Johnny Depp-Amber Heard lawsuit, where the court’s decision to permit television cameras in the courtroom resulted in unavoidable and inflammatory inter- net content.

What Is Impartiality?

In order to understand the right to an impartial jury, it is important to understand what exactly is meant by “impartiality” in the context of juries. As articulated by the Supreme Court over 100 years ago, “[t]he theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.”3 In other words, the jury is not to let extrajudicial information, information obtained from outside the trial, interfere in its decision-making. As the Court noted, that information could come from private conversations with other persons in the community or it could come from public news sources. At the time when the Court made this observation, the ways in which individuals could converse with each other or en- gage with news was fairly limited. Today, however, people can reach each other and the news with a mere swipe on their digital devices, and even often unintentionally. This makes the exclusion of extra-judicial information much more difficult to guarantee, but no less important.

Extra-judicial information must be excluded from the jurors’ deliberations for two important reasons. First, facts that are admissible at trial must adhere to strict rules and reliability standards, whereas information received from outside the trial does not. For example, hearsay, or out of court statements offered for the truth of the matter asserted, are generally inadmissible in court unless they meet certain standards of reliability.4 Similarly, courts do not permit witnesses to testify as to their opinions on a subject unless they qualify as reliable experts. The Federal Rules of Evidence require that those who give an expert opinion regarding an issue demonstrate to the court that they possess “scientific, technical, or other specialized knowledge” that is reliable.5 By contrast, every voice on the internet purporting to be an “expert” may not have a reliable basis for that opinion. Jurors could encounter online “talk” and “print” in sources of varying degrees of reliability, but only those sources admitted to the courtroom are guaran- teed to have met certain standards. Thus, jurors’ exposure to case-related information from outside of the courtroom raises concerns that they will rely on dubious material in deciding the case.

In criminal cases, the exclusion of out-of-court statements rests on an additional principle: the defendants’ Sixth Amendment right to confront their accusers. The Supreme Court has interpreted this right to require that the jury’s verdict “be based [solely] upon the evidence developed at the trial.”6 Thus, that right would be violated if the jury were to consider incriminating information that the defendant did not have an opportunity to refute at trial.7 For this reason and in order to prevent jurors from basing their decisions on un- reliable sources, it is imperative that courts work to prevent extrajudicial information from coming before the jury.

Current Challenges to Protecting the Right to an Impartial Jury

Concerns about protecting the jury from outside information in the face of advancing technology are not new. In fact, the Supreme Court noted in 1961 that given the growing methods of communication available at the time, some amount of extra-judicial information reaching the jury may be inevitable. It reasoned:

[i]t is not required . . . that the jurors be to- tally ignorant of the facts and issues involved [in a case]. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case.8

What is required, according to the Court, is that jurors be able to “lay aside” their “impression[s] or opinion[s]” and de- liberate based solely on the evidence adduced at trial.9 Though the Court’s words express an understanding that technology would continue to advance beyond its present day, it would have been difficult for it, in 1961, to predict just how swift, widespread, and diverse communication would become and the ease with which extrajudicial information could come before the jury. Similarly, it may not have appreciated that with such an increased risk of extrajudicial exposure comes an increased risk that jurors will find it difficult to “lay aside” the opinions that they form from this information. Today, the internet and its contents saturate daily life, reaching individuals extremely quickly and regularly. While in the past, a juror may have encountered news only when turning on the television or picking up a newspaper, today’s news is literally available at jurors’ fingertips at all times. Simply opening up a browser or homepage, checking social media applications or reading digital publications, yields enormous amounts of content.

Further troubling is the increased probability that jurors who are not even looking for information about a case will encounter it nevertheless. While a person used to have to buy and read a newspaper in order to engage with “public print,” today people frequently bump into public print they are not even seeking just by perusing their favorite social media apps. It is not unthinkable that a juror in a high-profile case might be looking at their newsfeed and happen to see a “friend’s” post about such case. Additionally, some news content is automatically “pushed” to electronic devices by various applications and provides an on-screen alert that a person can read without even clicking on a headline. Whereas previously, people had to seek out news, today, the news has a way of finding us. Given technological advances and the speed with which they develop, courts must do everything in their power to protect the right to an impartial jury. The next section will describe the tools available to the court in this endeavor.

How Do Courts Protect the Right to an Impartial Jury?

From the outset of the trial and continuing to the delivery of the verdict, there are various safeguards in place to prevent extrajudicial information from infecting the jury, although none of them without flaws. For example, the jury voir dire, during which prospective jurors are questioned to determine their fitness to serve on a jury, is an opportunity to elicit in- formation from jurors regarding any prior knowledge about a case gained through personal experience or the media.10 These questions “serve to protect [the right to an impartial jury] by exposing possible biases, both known and unknown, on the part of the potential jurors.”11 However, as noted by the Supreme Court, “[n]o hard-and-fast formula dictates the necessary breadth or depth of voir dire.”12 Moreover, rooting out all potential bias can be tricky where impartiality “is not a technical conception,” but “a state of mind”13 that may be hard to detect. Moreover, voir dire relies heavily on the honesty of jurors and their ability to recognize their own potential bias. For example, even if a potential juror admits during voir dire to having seen a news story about a case, the juror may insist that they are still capable of being impartial. There is no way of knowing if the juror was able to accurately comprehend the effect of that story on their mind.

There are also various procedures available to prevent the jury from encountering extrajudicial information while a trial is underway. For example, the court may sequester, or isolate, the jury from others and from the media, the purpose of which is to “protect them from outside influence and from basing their verdict upon anything other than the evidence developed at trial.”14 The sequestration of the jury during the trial of OJ Simpson in 1995 is perhaps one of the most famous example of this procedure. During that case, jurors were “likened to prisoners” and were “confined nearly half as long as the defendant himself.”15 Given the stress and dis- satisfaction of the jurors in that case, it is no surprise that sequestration has become increasingly rare. Recently, although some courts presiding over highly publicized cases like the Bill Cosby sexual assault trial16 have sequestered the jury, the practice has become less common because of several draw- backs. First, sequestration places a great hardship on jurors by taking them away from their homes and families. It also has the potential to reduce the probability of a fair trial by decreasing the amount of jurors who are able to serve or by influencing jurors to hurry through deliberations and rush to judgment.17 Moreover, given people’s increased reliance on electronic devices to communicate for both personal and work purposes, the ability to separate people from their de- vices for an extended period of time also raises practical concerns. At this point, the very idea sounds more like a punishment than a protection. It would inhibit jurors’ abilities to work, care for families, and communicate.

Most judges rely on jury instructions to protect the impartiality of the jury. Generally, judges instruct jurors about their duties to decide the case solely on the evidence adduced at trial. Modern jury instructions consider the risks of trial contamination by jurors’ use of the internet and social media. For example, model jury instructions put forth by the Judicial Conference Committee on Court Administration and Case Management, which manages the federal courts, recommend telling prospective jurors during voir dire that “in addition to not having face-to-face discussions with [their] fellow jurors or anyone else, [they] cannot communicate with anyone about the case in any way, whether in writing, or through email, text messaging, blogs, or comments, or on social media websites and apps (like Twitter, Facebook, Instagram, LinkedIn, YouTube, WhatsApp, and Snapchat).”18 It also explains to jurors that they may not perform any re- search regarding the case using “cellphones, iPads, computers or any other device” and that they “must ignore any information about the case [they] might see, even accidentally, while browsing the internet or on [their] social media feeds.19 The model instructions also provide that similar instructions be given at the beginning of the trial and at the close of the case and that jurors be reminded of these rules at the start and end of each day of the case. According to Judge Audrey G. Fleissig, chair of the Committee on Court Administration and Case Management at the time the model instructions were put forth, “[i]n a world where social media can overwhelm us with information and misinformation, it’s important to remind jurors again and again not to be distracted from their civic duty.”20

Ultimately, however, it is up to each juror individually to decide whether to abide by these directions, and courts are left to trust that jurors are doing their job. A juror’s encounter with extra-judicial information during internet use, which is generally a solitary activity, is unlikely to come to the court’s attention unless a juror volunteers it. However, should it come to light that a piece of extra-judicial information has potentially affected a juror’s deliberations, there are procedures in place that allow the court to investigate that exposure. For example, Federal Rule of Evidence Rule 606(b) permits jurors to testify about whether “extraneous prejudicial information was improperly brought before” the jury.21 Under this rule, however, the court cannot make any inquiry into how this information affected the jury’s verdict or its processes.22 Instead, the court must apply an objective test in determining whether the information is likely to affect the thought process of a typical juror.23

Current Challenges to Protecting the Right to an Impartial Jury as Demonstrated in Palin v. New York Times and Depp v. Heard

The following two recent cases demonstrate the challenges that modern technology presents to juror impartiality: Sarah Palin’s lawsuit against The New York Times and the Depp- Heard lawsuit.

In 2017, Sarah Palin filed a defamation lawsuit in the Southern District of New York against The New York Times based on an article it published linking her to the 2011 mass shooting involving then Representative Gabby Giffords.24 The trial in this case began in February 2022 and lasted seven days.25 At the close of the evidence, the defendants26 moved pursuant to Federal Rule of Civil Procedure 50 (Rule 50) for judgment as a matter of law, and oral argument on the motion took place over several days while the jury was deliberating.27 Ultimately, the court decided to grant the Rule 50 motion based on Palin’s failure to present sufficient evidence support- ing her defamation claim.28 The court, however, decided to deliver the ruling post-verdict and allow the jury to continue deliberating. The court’s reason for doing so was based on guidance from the Second Circuit Court of Appeals, suggesting that courts proceed in this fashion so that “if the Court of Appeals were to disagree with the Court’s decision to enter judgment as a matter of law, it would have the option of rein- stating the jury’s verdict rather than remanding for retrial.”29 Ultimately, the jury returned a verdict for the defendants, and the court entered final judgment based both on the Rule 50 motion and the jury’s verdict.30

After the trial, “in accordance with its very longstanding practice, [the court] directed its law clerk to speak with the jurors about any suggestions they might have for future improvements” to the court’s trial administration.31 During this conversation, several of the jurors volunteered that during their deliberations, they had seen “push notifications” to their phones reporting that the judge had decided to grant the Rule 50 motion and dismiss the case.32 The jurors explained that they received these notifications despite adhering to the court’s instruction that they avoid media coverage of the trial and assured the clerk that this information had no impact on their decision in the case.33 Subsequently, Palin moved for a new trial based in part on the judge’s timing of the court’s announcement of its ruling on the Rule 50 motion.34 The court denied the motion, relying in part on the assurances from the jurors who saw the push notifications that this in- formation had not affected their verdict or deliberations “in the slightest.”35

In its decision, the court, echoing the Supreme Court’s words in 1961 noted above, assessed that in high-profile cases, advances in technology and widespread media coverage have made it difficult to guarantee that jurors in such cases will not encounter media content about the cases. The court noted:

[i]ndeed, if the mere encountering during trial of media information about otherwise unknown events relevant to the trial were sufficient to taint a jury and require a new trial, our entire jury system would be cast in great jeopardy in any and every case that was the subject of significant media coverage.36

The court seemed to put its faith in jurors’ adherence to their instructions and their ability to set aside media informa- tion in deliberating, which is exactly what they purported to do in this case. Still, the case raises concerns about the way that extrajudicial information can reach even jurors who are following instructions and trying to avoid this information. As this case makes clear, the media easily can infiltrate jurors’ deliberations without jurors even trying to consume it.

The Palin case also raises questions about the volume of media available in cases of significant media attention. Al- though the court limited its analysis to the push notifications that the jurors mentioned to the law clerk, Palin’s lawyers suggested that jurors must have “received push notifications throughout the trial, . . . including articles with headlines that disparaged Plaintiff and her trial testimony.”37 Although the court found those claims to be “wholly unsupported speculation,”38 they do suggest the possibility that during a highly publicized trial, jurors could be exposed to significant and biased media coverage. In such a case would it be possible for the court to assume, without specific evidence, that media content prejudiced the jury? The Johnny Depp-Amber Heard lawsuit is a candidate for such a case. The trial, which lasted seven weeks and was streamed live on Court TV, involved claims by Depp that Heard had defamed him in an article published in the Washington Post, where she alluded to him as a domestic abuser. Ultimately, the jury found in favor of Depp and awarded him $10 million in damages.39 In addition to the Court TV live stream, there was extensive YouTube coverage of the case, as well as an extraordinarily high volume of social media discussion, which was difficult to avoid. “Bite-sized snippets of everything from Depp’s half- smiles to Heard’s allegedly fake tears to her lawyer’s question- ing paired with the theme song from Curb Your Enthusiasm were blasted over TikTok.”40 The trial was even parodied during the opening of Saturday Night Live.41 The coverage, though generally overwhelming, was also rather one-sided. Most of the videos that went viral were in support of Depp, and the content seemed to overwhelmingly support Depp. In early September 2022, “#JusticeForJohnnyDepp had racked up 21.6 billion TikTok views,” while “#JusticeForAmber- Heard had accumulated 132.4 million.”42

After the trial, Heard’s lawyers claimed that she was “demonized” online and that a “vitriolic social media campaign” against her influenced the jury’s verdict.43 Heard even cited her online “vilification” as a factor in her decision not to pursue an appeal of the verdict.44 Depp’s lawyers, in contrast, adamantly opposed the idea that a social media campaign against Heard played any part in the jury’s verdict, arguing that although the coverage about the trial was everywhere, jurors were reminded every night not to engage with information about the case.45 In a trial afforded such pervasive media coverage, however, it seems unlikely that jurors were able to avoid content about the case, which was particularly dangerous, given that it was substantially in favor of Depp.

The Supreme Court has not directly addressed the issue of juror impartiality in the context of pervasive and inflammatory online media content about a case. However, comparisons can be made to the case Sheppard v. Maxwell.46 In that case, Samuel Sheppard, a doctor and well-known member of his community, was on trial for “bludgeon[ing] to death” his pregnant wife.47 “Murder and mystery, society, sex, and suspense were combined in this case in such a manner as to intrigue and captivate the public fancy.”48 As a result, “[t]hroughout the pre-indictment investigation, the subsequent legal skirmishes, and the nine-week trial, circulation- conscious editors catered to the insatiable interest of the American people in the bizarre.”49 During the nine weeks of the trial, “the courtroom remained crowded to capacity with representatives of news media.”50 Sheppard was convicted, and subsequently filed a habeas corpus petition arguing that he was deprived of a fair trial due to “the trial judge’s failure to protect Sheppard sufficiently from the massive, pervasive and prejudicial publicity that attended his prosecution.”51

Sheppard’s petition reached the Supreme Court, which while acknowledging the press as the “handmaiden of effective judicial administration,” warned that it “must not be al- lowed to divert the trial from ‘the very purpose of a court system to adjudicate controversies, both criminal and civil, in the calmness and solemnity of the courtroom according to legal procedures,’” among which is “the requirement that the jury’s verdict be based on evidence received in open court, not from outside sources.”52 The court noted that “[a]s the trial progressed, the newspapers summarized and interpreted the evidence, devoting particular attention to the material that incriminated Sheppard, and often drew unwarranted inferences from testimony” and reported on information that was not part of the trial.53 It even pointed out the publication of a “doctored” photo of Mrs. Sheppard’s blood-stained pillow and the sensational broadcast of a prison inmate claiming that Dr. Sheppard was the father of her child.54 The court assumed that at least some of this material reached the jurors.55 The court admonished the “carnival atmosphere”56 of the trial and warned that “[g]iven the pervasiveness of mod- ern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused.”57 Ultimately, the court found the publicity surrounding the case “inherently prejudicial” and granted Sheppard’s motion.58

Today, communication is exponentially more pervasive than it was during the Sheppard trial in 1954. Just as in Sheppard, Depp v. Heard contained just the right combination of sex, violence, and celebrity, “to intrigue and captivate the public fancy,” and the media, with its incessant coverage, certainly catered to the public’s interest in “the bizarre.” Al- though Heard’s lawyers opposed it, the trial judge permitted Court TV to operate cameras in the courtroom. This constant media presence, as Heard’s lawyer put it, “made it a zoo,”59 which carried over online, creating a “carnival atmosphere” both inside and outside of the courtroom. The cam- eras in the courtroom turned the trial’s key players into social media stars. Depp’s lawyers may have even been playing to the cameras, using social media to their advantage, as videos portrayed them, “appeared to flirt as they shared candy and offered each other secret smiles.”60 Moreover, the media content about the case was pervasive, inflammatory, and unreliable. A juror needed only to scroll through TikTok to uncover countless “doctored” images of the trial and opinions and interpretations about the evidence in the case. Even more troubling, “[a]ccording to a study of 2,300 Twitter accounts,

Cyabra, a firm in Israel that tracks online disinformation, found that 11% of the conversation surrounding the trial from March 13th to April 16th was driven by fake accounts, compared with just 3% to 5% of the fake accounts narrating any average online conversation.”61 Given this landscape, one could conclude that the media presence in the courtroom and the livestream and its amplification on social media diverted the trial from its purpose of adjudicating controversies in calmness. As a result, perhaps the publicity was so pervasive and inflammatory that it is safe to assume that some of this material reached the jury and was inherently prejudicial.62

The circus may have been avoided if the Depp-Heard trial had not been televised. Rules regarding the allowance of tele- vision cameras in the courtroom vary by jurisdiction, but in Fairfax County, Virginia, where the Depp-Heard trial took place, judges have discretion over whether to allow television broadcast of criminal and civil proceedings subject to certain exceptions.63 One of those exceptions prohibits “coverage of. . . victims of sexual offenses.”64 Heard’s lawyer argued that since Heard was a victim of sexual assault, cameras should not be allowed, but the judge disagreed, finding that the prohibition was only applicable in criminal cases.65 Advocates for courtroom coverage argue that it promotes transparency. On the other hand, critics argue that it has the potential to lead to disruptions and attorney theatrics, some of which may have been occurring in Depp-Heard.66 Perhaps the court could not have predicted the circus that would play out online, but the case could serve as a lesson for future cases where there is potential for broadcasting to result in rampant internet and social media content.

In a time when people live so much of their lives online and social media has made it possible for information to travel farther and faster than it ever has before, courts should be extremely vigilant about protecting the right to an impartial jury. Courts should use all of the tools at their disposals “that will protect their processes from prejudicial outside information.”67 The most practical approach is to use clear jury instructions and to continually remind the jury not to engage with extrajudicial information and to decide a case solely on the facts presented in court, but in some cases this may not be enough. Particularly in high-profile cases, courts should be cautious about allowing trials to be filmed, lest the case become the subject of pervasive and inflammatory media attention that might require, as in Sheppard, to presume that the jury has been prejudiced. The court system has always had to put its faith in the jury, but that faith should not be blind. In the age of constant connection, courts must do all they can to ensure that juries are not prejudiced.

This article originally appeared in the NYSBA Entertainment, Arts, Sports Law Section Journal. To join the EASL section, contact Sharmin Woodall at [email protected].   

Regina Stuart is assistant professor of legal studies at St. John’s Uni- versity in Queens, New York. Her teaching focuses on civil litigation and legal research and writing.

Endnotes

1. S. Const. Amend. VI.
2. S. Const. Amend. VII; see McDonough Power Equip., Inc.
3. Greenwood, 464 U.S. 548, 554 (1984) (noting that “[o]ne touchstone of a fair trial is an impartial trier of fact.”); Skaggs v. Otis Elevator Co., 164 F.3d 511, 514-15 (10th Cir. 1998) (“Although the Seventh Amendment does not contain language identical to that found in the Sixth Amendment, . . . the right to a jury trial in a civil case would be illusory unless it encompassed the right to an impartial jury.”).
4. Patterson Colorado, 205 U.S. 454, 462 (1907).
5. See State v. Stevens, 171 Wis. 2d 106, 113 (1992) (“All hearsay exceptions are based on the idea that, even though the hearsay declarant is unavailable for cross-examination, the

declarant’s out-of-court statement can be admitted as evidence because the statement itself contains sufficient indicia of reliability so that cross-examination of the declarant is not necessary.”).

5. Rule Evid. 702; see Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) (“[T]he trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.”).
6. Irvin Dowd, 366 U.S. 717, 722 (1961).
7. Bibbins Dalsheim, 21 F.3d 13, 16 (2d Cir. 1994).
8. Irvin Dowd, 366 U.S. 717, 722 (1961).
9. Id. at 723.
10. See g., Nebraska Press Ass’c v. Stuart, 427 U.S. 539, 602 (1976) (Brennan, J., concurring) (“In particular, the trial judge should employ the Voir dire to probe fully into the effect of publicity. The judge should broadly explore such matters as the extent to which prospective jurors had read particular news accounts or whether they had heard about incriminating data such as an alleged confession or statements by purportedly reliable sources concerning the defendant’s guilt.”).

11. McDonough Power , Inc. v. Greenwood, 464 U.S. 548, 554 (1984).

12. Skilling U.S., 561 U.S. 358, 386 (2019).
13. See S. v. Wood, 200 U.S. 123, 145-46 (1923).
14. State Kinsel, 783 So. 2d 532, 540 (La. App. 5th Cir. 2001).
15. Mark Hansen, Sequestration Little Used, Little Liked, B.A. J., Oct. 1995, at 16.
16. Eric Levinson, Bill Cosby trial: What it’s like to be on a sequestered jury, CNN (Jun. 9, 2017), available at https://www. com/2017/06/08/us/bill-cosby-sequestered-jury/index. html#:~:text=The%20jurors%2C%20chosen%20from%20 Allegheny,access%20to%20the%20outside%20world.

17. Mark Hansen, Sequestration Little Used, Little Liked, B.A. J., Oct. 1995, at 16.
18. Proposed Model Jury Instructions: The Use of Electronic Technology to Learn or Communicate about a Case, (June 2020), available at https://www.uscourts.gov/sites/default/files/proposed_model_jury_ instructions.pdf.

19. Id.
20. New Jury Instructions Strengthen Social Media Cautions, (Oct. 1, 2020), available at https://www.uscourgov/ news/2020/10/01/new-jury-instructions-strengthen-social- mediacautions#:~:text=%E2%80%9CJurors%20must%20 decide%20a%20case,distracted%20from%20their%20civic%20 duty.%E2%80%9D.

21. R. Evid. 606(b).
22. “Substantial policy considerations support the [general] rule against the admission of jury testimony to impeach a verdict,” including the “necessity of shielding jury deliberations from public scrutiny.” Tanner v. U.S., 483 U.S. 107, 119 (1987). The rule also promotes “full and vigorous discussion by jurors” and gives “stability and finality” to Pena-Rodriguez v. Colorado, 580 U.S. 206, 218 (2017). Some version of the no-impeachment rule is followed in every state and the District of Columbia, most of which follow the Federal Rule. Id. The rule’s exception for juror testimony about prejudicial external information is in line with the overall interest in “insulating the jury’s deliberative process.” Tanner, 483 U.S. at 120.
23. Bibbins Dalsheim, 21 F.3d 13, 17 (2d Cir. 1994).
24. America’s Lethal Politics, Y. Times (Jun. 4, 2017), available at https://www.nytimes.com/2017/06/14/opinion/steve-scalise- congress-shot-alexandria-virginia.html.
25. Palin New York Times Co., 17-cv-4853 JSR, 2022 WL 1744008, at *1 (S.D.N.Y. May 31, 2022).
26. Palin sued both the New York Times and the editor of the article, James Bennet.
27. Palin, at *1.
28. Id.
29. Id.
30. Id. at *2.
31. Id.
32. Id.
33. Id.
34. Id.
35. Id. at 8. The court also noted that Palin had waived any argument regarding the potential tainted jurors by failing to seek to interview the jurors and also failing to object to the court’s procedure in issuing the Rule 50 motion. Id. Moreover, the court noted that defendant’s argument about the jury would only become relevant should the Court of Appeals reverse the court’s Rule 50 Order and need to examine the jury verdict. Id.
36. Id. at 9.
37. Id. at 8.
38. Id.
39. Julia Jacobs, Amber Heard Says She Has Decided to ‘Settle’ Johnny Depp Defamation Case, N.Y. Times (Dec. 19, 2022), available at https://www.nytimes.com/2022/12/19/arts/amber-heard-johnny- depp-settlement.html. The jury also awarded Heard $2 million as a result of a countersuit alleging that Depp had defamed her through a comment made by his lawyer. Id.

40. Danielle Braff, Trial by TikTok: How Social Media Hijacked the Depp Heard Defamation Trial, A.B.A. J., Oct. 2022, at 34.
41. Alanna Vagianos, The Johnny Depp and Amber Heard Trial is a Media Circus – and We’re Losing Track of What’s at Stake, Huffington Post, (May 17, 2022), available at https://www.huffpost.com/entry/johnny- depp-amber-heard-domestic-violence-survivors_n_627d58c3e4b0b74b 0e81010f.
42. Danielle Braff, Trial by TikTok: How Social Media Hijacked the Depp Heard Defamation Trial, A.B.A. J., Oct. 2022, at 34.
43. Daniel Krepps, Amber Heard’s Lawyer Says Actress Was “Demonized” During Trial, Cites “Lopsided” Social Media, (June 2, 2022), Rolling Stone, available at https://www.rcom/culture/culture-news/ amber-heard-lawyer-demonized-social-media-trial-depp-1361990/.
44. Julia Jacobs, Amber Heard Says She Has Decided to ‘Settle’ Johnny Depp Defamation Case, N.Y. Times (Dec. 19, 2022), available at https:// nytimes.com/2022/12/19/arts/amber-heard-johnny-depp- settlement.html.
45. Savannah Walsh, Johnny Depp’s Lawyers Say “Social Media Played No Role” in Amber Heard Defamation Case, Vanity Fair (Jun. 8, 2022), available at https://www.vcom/hollywood/2022/06/johnny- depps-lawyers-say-social-media-played-no-role-in-amber-heard- defamation-case.
46. Sheppard Maxwell, 384 U.S. 333 (1966).
47. Id.
48. Id. at 356 (quoting State v. Sheppard, 165 Ohio St. 293, 294 (1956)).
49. Id.
50. Id. at 344.
51. Id. at 335.
52. Id. at 350-51 (quoting Cox v. Louisiana, 379 U.S. 559, 583 (1965) (Black, J., dissenting)). While Sheppard was a criminal case, the court mentions the need to protect both civil and criminal trials from the dangers of juror prejudice.
53. Id. at 357.
54. Id.
55. Id.
56. Id. at 358.
57. Id. at 362.
58. Id. at 363.
59. Scott Stump, How Social Media Could Influence Other Cases After Depp, Heard Trial, (Jun. 3, 2022), Today, available at https://www.today.com/popculture/popculture/social-media-could-influence-other-cases- after-depp-heard-trial-rcna31804.

60. Danielle Braff, Trial by TikTok: How Social Media Hijacked the Depp v Heard Defamation Trial, A.B.A. J., Oct. 2022, at 34.
61. Id.
62. In 2010, the court declined to apply the presumption from Sheppard in the case of Skilling v. United States, 561 U.S. 358 (2010). In that case, Skilling, the former chief executive officer of Enron, appealed his conviction for honest services fraud conspiracy, among other things. Skilling, 561 U.S. at 375. Skilling argued that “the community passion aroused by Enron’s collapse and the vitriolic media treatment” aimed at him tainted the jury. Id. at 377. The court found that Skilling was not entitled to the Sheppard presumption, in part because it was “hard to sustain” the idea that 12 impartial jurors could not be found out of the 4.5 million individuals eligible for jury duty in Houston. Id. at 382-383. Communication, however, has undergone much change since the Skilling trial in 2006, and as a result, the court did not decide that case with the backdrop of pervasive social media and internet content. Such developments have changed the landscape, allowing information to travel faster and farther, and beyond geographic limitations. The Skilling court also did not seem to think that the trial exemplified the same “carnival atmosphere” as Sheppard. Id. at 380. The court, however, left open the possibility that the presumption could apply in the “extreme case.” Id. at 381.

63. VA Code § 19.2-266.
64. § 19.2-266(3).
65. Gene Maddaus, Why Was Depp-Heard Trial Televised? Critics Call It ‘Single Worst Decision’ for Sexual Violence Victims (May 27, 2022), Variety, available at https://variety.com/2022/film/ news/johnny-depp-amber-heard-cameras-courtroom-penney- azcarate-1235280060/.
66. Fact Check – Why video streaming was permitted in the Depp- Heard trial but was not in Ghislaine Maxwell’s, (Apr. 27, 2022), Reuters, available at https://www.rcom/article/factcheck- maxwell-deppheard/fact-check-why-video-streaming-is-permitted- in-the-depp-heard-trial-but-was-not-in-ghislaine-maxwells- idUSL2N2WP26C; In Depp-Heard, critics felt that the broadcast of Heard’s testimony and the subsequent negative treatment she received on the internet had serious repercussions in that it would scare others from speaking out about their own abuse. Gene Maddaus, Why Was Depp-Heard Trial Televised? Critics Call It ‘Single Worst Decision’ for Sexual Violence Victims, (May 27, 2022), Variety, available at https://variety.com/2022/film/news/johnny-depp- amber-heard-cameras-courtroom-penney-azcarate-1235280060/.

67. Sheppard Maxwell, 384 U.S. 333, 363 (1966).