Can Social Media Be Banned from Playing a Role in Our Judicial System?By Denise Zamore
The 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.
—Oliver Wendell Holmes 
Barring a gag order, what's to stop a savvy defendant corporation from creating a Facebook page dedicated to proving its innocence at trial? What’s to stop a juror at that trial from accessing and posting to the corporation's Facebook page during a break, or even in a courtroom where cell phones and PDAs are allowed?
Facebook boasts more than 400 million users. More than 50 million tweets are sent every day. Tens of millions of Americans have become accustomed to accessing and sharing information in real time via online media. From sports to politics to entertainment, Americans are eager to engage with one another through the Internet and social media outlets. But, what happens when this eagerness impacts the outcomes of trials?
Juror Use of Social Media Can Affect the Outcome of Trials
Within the past few years, trials throughout the country have been affected by juror use of technology to research and communicate via the Internet, often affecting the rights of litigants to have their cases decided only on admitted evidence, and thus allowing the deliberative process to go beyond its authorized limits. In addition to conducting Internet research, jurors now blog, tweet, and post to Facebook and MySpace about their trials. Indeed, this conduct can compromise the integrity of the jury process and has recently led to the exclusion of jurors, imposition of fines, and mistrials.
In what has been infamously dubbed the "Google mistrial" in 2009, the New York Times reported that after eight weeks of trial in a Florida drug case, a juror admitted to the judge that he had conducted Internet research and, when the judge questioned the other jurors, he found that eight others had been doing the same thing. This led to the judge ordering a mistrial. 
While there are many other cases where juror use of the Internet to conduct research has affected the outcome of trials, it is only within the last few years that juror use of social media has also become an issue. For example, in March 2010, a Georgia court revoked the bond of a man accused in a shooting death after he sent a Facebook "friend request" to a juror hearing evidence in his trial. 
In the February 2010 political corruption trial of Sam Riddle, Detroit defendant Riddle used Twitter and Facebook status updates during jury deliberations to voice displeasure with his counsel, posting on Twitter: "When your fate is in the hand of others, man, that is not a good feeling." On Facebook, Riddle posted: "I never understood the true depth that ineffective counsel could achieve. The 6th Amendment screams for justice." After his first corruption trial ended in a mistrial, Riddle began directing thousands of followers and friends on Facebook and Twitter to American Riddle, his new online legal defense fund, hoping to raise $50,000 to $150,000 to hire a new attorney for his second corruption trial. 
During a February 2010 criminal trial in New York, a juror sent a key witness, a firefighter, a Facebook friend request.  The judge found that the juror's communication was "unquestionably a serious breach of her obligations as a juror and a clear violation of the court's instructions," and ultimately overturned the conviction on other grounds.
In 2009, an Arkansas judge found that a juror's tweets, including one that read, "I just gave away TWELVE MILLION DOLLARS of somebody else's money," did not require a mistrial. Defense counsel subsequently filed an appeal claiming that the Twitter posts displayed that the juror was predisposed toward giving a verdict that would impress his audience. 
Defense lawyers in the 2009 federal corruption trial of former Pennsylvania state senator Vincent J. Fumo unsuccessfully demanded before the verdict that the judge declare a mistrial because a juror posted updates on the case on Twitter and Facebook. The juror had even told his readers that a "big announcement" was coming on Monday.
In 2008, an English juror was uncertain which way to vote on a jury in a child abduction/sex abuse case, so she posted details about the case and then held a Facebook poll to help determine her vote. She was dismissed. 
Jury Instruction Changes Are Likely Coming
Use of social media has become so ubiquitous that courts have been forced to take notice. Earlier this year, Administrative Judge Marcella A. Holland issued an order banning "the use of any device to transmit information on Twitter, Facebook, Linked In or any other current or future form of social networking from any of the courthouses within the Circuit Court for Baltimore City."
Judge Holland's decision was made in response to the trial of former Baltimore Mayor Sheila Dixon, the first Baltimore case covered en masse on social media sites by journalists, who posted regular tweets from courthouse hallways and courtrooms. Five jurors became Facebook friends during the trial and some posted public messages about the trial, leading Dixon's attorneys to call for a new trial.
Recognizing the increase in social media site usage, on January 28, 2010, the Judicial Conference Committee on Court Administration and Case Management issued model jury instructions "to help deter jurors from using electronic technologies to research or communicate about cases on which they serve." 
The model instructions, sent to all United States District Court Judges, were drafted to more explicitly address the increasing incidence of juror use of electronic devices to conduct research on the Internet or communicate with others about cases.
I know that many of you use cell phones, Blackberries, the internet and other tools of technology. You also must not talk to anyone about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, My Space, LinkedIn, and YouTube. 
While there are no there are no uniform instructions for state courts because each state is free to adopt its own set of jury instructions, some courts, including the Florida Supreme Court, have released a similar set of recommended jury instructions to be used to address the growing trend of jurors accessing the Internet and using other handheld electronic devices before being impaneled on a jury and while on jury duty. 
Potential Solutions to a Growing Problem
The evidence from which jurors are traditionally expected to find the facts at trial consist of the testimony of witnesses, documents, and other items received into the record as exhibits, along with any facts that the lawyers agree to or stipulate to or that the judge instructs jurors to take as true. However, the use of the Internet and social media by jurors to do their own research, or to share their impressions and opinions of the cases in which they sit, is only likely to increase. And, many believe that the sanctity of the jury system and the right to a fair trial will continue to be affected by jurors’ use of technology.
Some jurisdictions have gone as far as banning the use of all cell phones and computers from the courtroom. Many are considering adopting the more explicit jury instructions referenced earlier in this article. However, while rules banning devices in courtrooms and the newly proposed jury instructions may prevent jurors from researching or communicating via the Internet on electronic devices while in the courthouse, there are those within the legal community that believe the new instructions will do little to prevent jurors from doing so outside the courthouse.
Unfortunately, trial counsel should assume that, despite judges' instructions, jurors will engage in online research and communication regarding their trials. Therefore, in the absence of jury sequestration or a court-entered gag order, counsel should consider taking some basic steps to lessen the likelihood of a trial's derailment resulting from jurors' use of the Internet.
- During voir dire, counsel should inquire as to jurors' usage of the Internet generally, and social media specifically. Inquire as to what websites jurors frequent, how often they access those websites, and if they post to those websites. Ask whether the jurors blog.
- Counsel should request that in his initial instructions to the jury, the judge expressly prohibit research and communications on the Internet at any time during the trial. The instructions should explicitly reference and prohibit the use of social media, including Facebook, Twitter, and MySpace.
- Counsel can also request that the judge remind jurors of the penalties for conducting outside research and require jurors to sign declarations stating that they will not research the case details on the Internet.
- During a trial, counsel should regularly check social media websites to confirm whether jurors are posting or blogging regarding the trial.
- Counsel should take the preemptive step of conducting their own Internet research to learn what information exists online about the trial, including any information regarding the litigants, witnesses, and lawyers.
- Counsel should review their case and consider what questions might arise during the trial that could prompt a juror to look elsewhere for answers. Counsel should take these questions into consideration when putting together its case presentation.
- Where juror misconduct seems apparent, counsel should strongly consider a post verdict motion for voir dire of a juror to determine whether juror misconduct has in fact occurred.
Keywords: social networking, social media, Facebook, Linked In, Twitter, mistrial, jury misconduct
Denise Zamore is a commercial litigator in the Connecticut office of Axinn, Veltrop & Harrkrider LLP.
- Patterson v. Colorado, 205 U.S. 454, 462 (1907).
- "As Jurors Turn to the Web, Mistrials are Popping Up," N.Y. Times, Mar. 18, 2009.
- "Mistrial Declared After Alleged Facebook Request," Henry Daily Herald, Mar. 13, 2010.
- Sam Riddle Tweets for Legal Defense Fund, Feb. 25, 2010.
- People v. Rios, No. 1200/06 (Feb. 23, 2010).
- "Appeal Claims Jurors Bias in "Tweets" Sent During $12 Million Case," The Associated Press, Mar. 16, 2009.
- Juror dismissed over Facebook poll: I don't know which way to go, so I'm holding a poll.
- In the Circuit Court for Baltimore City Addendum to Administrative Order on Use of Cell Phones and Other Communication Devices, dated Feb. 14, 2006.
- Jan. 28, 2010 Memorandum from Judicial Conference Committee on Court Administration and Case Management to United States District Court Judges re Juror Use of Electronic Communication Technologies.
- Proposed Model Jury Instructions, The Use of Electronic Technology to Conduct Research on or Communicate about a Case Prepared by the Judicial Conference Committee on Court Administration and Case Management, Dec. 2009.
- In the Supreme Court of Florida, In Re Standard Jury Instructions (Civil) and (Criminal), Juror's Use of Electronic Devices, Case No. SC10-51.
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