Today's Wired Juror
Be Careful What You Tweet for
While society at large stumbles towards standards of etiquette across the social media, the judiciary struggles with the legal ramifications of posts and communiqués on sites like Facebook and Twitter during litigation.
What happens when a juror "friends" a witness on MySpace during litigation? When a judge comments on an attorney's Facebook status? Or when someone in the box tweets a verdict pre-delivery? The answers - so far - are as varied as the incidents themselves: an overturned verdict, a mistrial, a juror dismissal, or even -- as in the case of Judge Carlton B. Terry, Jr. --a public reprimand.The following are a few highlights from a myriad of recent upcroppings in the news about social media in the courtroom:
Massachusetts: During deliberations in a cocaine smuggling case, the judge was surprised to receive a note about case law from a deadlocked jury. It read, "Your Honor, we have come up against a wall under Chapter 234, Section 26(b)" of the Massachusetts statutes. The jury hadn't been instructed on that statute, so the judge spoke to the culpable juror, who insisted he'd only researched the legal implications of a hung jury. The judge denied the defendants' motion for a mistrial, but the Massachusetts Court of Appeals reversed the convictions, fearing the jury "may have been trying to remove a dissenting juror." more...
Arkansas: Russell Wright and Stoam Holdings weren't happy about one juror's tweet that he "just gave away TWELVE MILLION DOLLARS of (their) money!" Circuit Judge Mark Lindsey denied a motion for appeal, disagreeing with the defense's allegation that the message revealed inherent bias against the company, instead interpreting juror Johnathan Powell's statement as simple excitement about doing his civic duty. more...
New York: The defense in a case involving the death of two firefighters wants the verdicts set aside after learning of a juror's attempt to become friends on Facebook with a witness in the case. more...
Ohio: After the plaintiff's attorney in a personal injury trial discovered a juror's Facebook status, "Barry Price is sitting in hell," a judge booted him from the case. The defense requested a mistrial, but the judge refused. more...
New York: Al Roker, the Today show weatherman, recently made headlines posting pictures from the jury assembly room on his Twitter page. Since he was outside the courtroom, he was not prohibited from doing so. more...
North Carolina: For inappropriate correspondences with an attorney in trial in his courtroom, Judge B. Carlton Terry, Jr. received a public reprimand from the Judicial Standards Commission. Judge Terry "friended" defense lawyer Charles A. Schieck on Facebook during the trial, and alluded to his eventual rulings in response to Schieck's status updates. more...
Lancashire, UK: A woman was dismissed from a child abduction trial in Burnley Crown Court when she posted that she "(didn't) know which way to go, so I'm holding a poll" on her Facebook page. more...
California: Defense and prosecution attorneys declined an opportunity to question a juror who'd been caught texting during a trial for possession of a controlled substance. The court of appeals held that the defense's failure to question the juror "waived any claim of error" in the case. more...
Alabama: After the conviction of Former Alabama Governor Don Siegelman for bribery, the defense requested a full investigation into the digital conduct of two jurors. The request included the production of "all hard drives, Blackberries, cell phones, or any other device capable of sending email or text messages" that they used during trial. The appeals panel denied the request, stating that "[n]o court has ever held that a court's obligation to investigate extends that far The Court believes sound policy considerations are the reason that the law has not required such fishing expeditions. Such a holding would potentially destroy the jury system in this nation." more...
So now for the question of the hour
How do you win today's wired juror? How can you make a better educated guess about which kind of wired juror will side with you? It's the judge's responsibility to inform the jury about the rules pertaining to technology and information access inside and outside of the courtroom (for an increasingly popular judiciary opinion on this, check out yesterday's article in the Houston Chronicle by a former assistant U.S. attorney and a presiding district judge), but unless the jury's sequestered, nobody's watching.
We've got a couple of suggestions:
| 1. | Don't fight the wire. According to this article in the New York Times, the judge presiding over a drug case in Florida was shocked to find 75 percent of the jury had used the Internet to do research on the case during trial. Members of a jury can (and do) look up information about parties to the case, attorneys, lawyers, witnesses, and pretty much anything that stumps them in the courtroom. They want to do their job well, and sometimes they feel compelled to do a little "outside" homework. |
| 2. | Ask the judge to mention specifically that it's illegal for jurors to use Internet resources (or other outside information that's not part of the evidence presented in the courtroom) to formulate their opinions on the case. |
| 3. | Know your case online. Make sure you've run your own searches on all the aforementioned parties and themes. It's never a bad idea to preemptively address or deflect something a juror might otherwise think you're "hiding" from them. |
| 4. | Run a search on your prospective jurors in voir dire. Sometimes jurors will leave out important information about themselves when filling out questionnaires. They might not tell you about their blogs, their Myspace pages, or their Twitter accounts. Take a look at the profiles and tweets of their twitter buddies. What celebrities are they following? Do they write a column called "The Corporate Nightmare"? Good to know. Some firms have even turned to private investigators to vet potential jurors in high-dollar litigation. This article from law.com contains several harrowing tales of attorneys using online search to discover jurors failing to disclose pertinent information about themselves on questionnaires. One juror under investigation for malfeasance said she had no personal experience in the criminal system, while another, a member of a "fringe right-wing" conservative group, checked "no affiliations" on a questionnaire. |
| 5. | Ask prospective jurors about their online habits! How often do they log on? What sites do they frequent? Are they big social networkers? |