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Courts Wrangle with Twittering by Jurors

By Duchess Harris, Litigation News Student Intern – July 15, 2009

“we dont believe def.  at lunch 9 guiltys . . . cant wait 4 closing args 2b ovr . . . more l8r.”

The above message is fictional, but the threat of wired jurors disrupting the trial process is real. The sheer reach and immediacy of the Internet constitutes a new threat to the legal process.

The continuing improvement of search tools, proliferation of microblogging sites like Twitter, and increased use of social communities like Facebook have introduced substantial new concerns that the legal system must take into consideration.

“Tweets” Coming from the Courtroom
The number of people who can be reached and the quantity of information—and misinformation—that can be generated through social media tools may well affect the outcome of a trial. At least two recent high-profile trials have seen juror “tweets” (short messages delivered to readers through Twitter) be the subject of post trial motions.

For example, one complaint in the post-verdict appeal of convicted Pennsylvania state senator Vincent Fumo was that a juror issued a tweet during deliberations. This was rejected in the court’s ruling [PDF] on Fumo’s post-trial motion.

In Arkansas, a $12.6 million verdict became the subject of a new trial motion after a 29-year-old Walmart photo lab manager posted eight tweets during the trial. Among those that the losing defendant found objectionable was a reference to 12 Angry Men made before the jury was even selected. The trial judge in Fayetteville rejected the post-trial motions. Apparently, while it may have been in poor taste to send text messages during breaks, “[i]t was not improper conduct.”

The number of cases may seem isolated today, but the pervasiveness of the technology signals an increase. “When a compulsive Twitter user is selected as a juror, the temptation to ‘tweet’ about the experience may be too great to resist,” says Thomas Gilson, Phoenix, AZ, cochair of the ABA Section of Litigation’s Criminal Litigation Committee. “For someone who routinely posts electronic updates about what her cat is doing, it will be almost impossible for her to bite her virtual tongue and refrain from posting about a trial,” he adds.

Ardent social networkers may not consider their posts to be “communication.” As such, “a reminder from the judge as the jury is sworn [that twittering, etc. is a form of prohibited ‘communication’] may be a smart idea,” says Dori Ann Hanswirth, New York, cochair of the Section’s Trial Practice Committee. Depending on the stakes and courtroom nuance, a further reminder of the contempt remedy could be a useful deterrent.

There are other concerns about technology’s intrusion on the legal process. The ability of jurors to quickly look up information about a witness, a plaintiff, or defendant may well prejudice the juror’s perception of that individual.  A verdict may be influenced, not by the evidence presented in the courtroom, but by “evidence” gathered online, perhaps from a source that is not legitimate.      

Some courts have begun to act. The U.S. District Court for the Southern District of Florida, for example, has rules governing use of such messaging services from within the courtroom, though no express prohibition is included for nights/weekends. In Michigan, the Judicial Conference passed a rule barring juror use of the Internet during trial. The Michigan rule goes into effect on September 1, 2009.  Seasoned ligitators expect that other courts are certain to follow.    

Tips to Protect Your Case
“Where you have voire dire available, consider asking questions about the potential juror’s use of social networking,” says David A. Soley, Portland, ME, cochair of the Section’s Trial Practice Committee. “If it is cost effective, consider if you monitor those sites during trial.”

The stickier question could be what to do if you learn a juror is an active social networker during your trial? Worse yet, what if you learn from his posts that he likes your client?

“If you learn about a substantive twitter during the case, weigh carefully your obligation to report it to the judge,” says Soley. You are an officer of the court, he cautions, and “[need to] remember your reporting obligation holds true regardless of whether the post is positive or negative for your client.”

Keywords: Juror conduct, social networking


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