ARE TWEETERS OR GOOGLERS IN YOUR JURY BOX?
“Guilty until you prove to me
otherwise.” “I say hang’em for parking
violations and increase punishment from there.”
“Someone has to do something about these personal injury lawyers.” “Hung over for jury duty.” These are just a small sampling of “tweets”
found in a 15 minute search at www.twitter.com. Puffing? Perhaps. Exaggeration? Most likely.
But wouldn’t you want to know if these statements came from your jury
pool or seated panel? The information is
just a click away. Not all, but many
“tweets” are linked to a name and location, and even include a photo of the
“tweeter.”
Twitter is a rapidly growing,
internet based communication source.
Subscribers send short text messages, “tweets” to anyone choosing to
receive them. These messages transmit
through computers or cell phones and are typically used to announce one’s
activity, such as “went to the movies,” or “have jury duty.” This newest form of social networking has
found its way into the courtroom. Social
networking cites and internet research advancements raise a series of new or at
least expanded issues regarding juror communication.
Many attorneys and judges are
up to speed with the latest technology and communication media. However, recent
survey data indicates that only six percent use Twitter or any other source of
microblogging.[i] Therefore, a vocabulary briefing may be in order.
A basic social networking site allows
members to have a personal page where they can update friends with their likes,
dislikes, photos, thoughts, etc. Friends
can respond and networks of friends can link together to form common
groups. Access may be open to the public
or limited to invitation. The most
common of these sites include MySpace and Facebook. Blog
is short for web log. It is basically an
online writing that can contain personal thoughts and opinions resembling a
journal, or be more professional in nature such as an article or online
newsletter. Twitter is considered a “microblog.”
There are many other specialized sites and communities as well.[ii]
Information Moving Out from the Jury Box
The influx of easily
accessible and portable communication and research devices affects the jury
system in several ways. Information is
being sent out by jurors, responses come back in, jurors are conducting their
own Internet research, and attorneys have access to more information about
jurors than ever before. In March 2009, attorneys for former Pennsylvania state
senator Vincent Fumo sought a mistrial in a five month federal corruption case
because a juror posted updates on Twitter and Facebook during the trial. The judge did not dismiss the juror and Fumo
was convicted on 137 counts. His lawyers
plan to appeal. According to the defense
motion, the juror posted a message on Facebook that said, “Stay tuned for a big
announcement on Monday everyone!” and tweeted, “This is it…no looking back
now!” When questioned by the judge, the
juror said that his posts were intended to express his thoughts rather than
communicate with others.
Within days of the Fumo case,
a building products company asked an Arkansas
court to overturn a $12.6 million judgment because a juror used Twitter to send
trial updates. His tweets included, “I
just gave away TWELVE MILLION DOLLARS of somebody else’s money” and “Oh and
nobody buy Stoam. Its bad mojo and
they’ll probably cease to Exist, now that their wallet is 12m lighter.” The juror insisted that he did not post any
substantive messages until after the verdict had been delivered. The judge concluded that although the posts
were in bad taste, they did not amount to improper conduct. The defense argued that the tweets showed
that the juror was biased against their client, Stoam, and “predisposed toward
giving a verdict that would impress his audience.”
Some jurors may be looking
for their fifteen minutes of fame.
Cynthia Cohen, President of the American Society of Trial Consultants
(ASTC), explained that jurors on big cases may feel empowered because they have
a hand in the outcome. “With Twitter and
instant messaging, being first, getting something out immediately is a thrill
for them. They get caught up in the
excitement instead of following the rules and laws of the legal system. It’s definitely a problem.” Ms. Cohen also noted that the ASTC is
working on a handbook on trial ethics which will include juror and social
networking.[vii]
This electronic communication
seems to have an unusual, addictive hold on many. Commenting on the August 6, 2009 social
network crash, former ASTC president, Douglas Keene, observed that “[s]ome
‘users’ panicked as much as you might have expected from drug addicts. Users were ‘jittery’, ‘naked’, ‘freaked out.’”[viii] For such compulsive users, it may be much
easier to refrain from discussing the case over dinner than to lay off their
technology.
Admonishing jurors not to
discuss the case outside of the deliberation room is certainly not new. It seems, however, that many jurors do not
see blogging, tweeting, or posting as communication, or at least don’t consider
it to fall within the rubric of traditional admonitions. In a California
felony trial, the judge admonished the jurors orally and in writing to not discuss
the case. Nevertheless, a juror (who was
an attorney) blogged about the trial stating that “[n]owhere do I recall the
jury instructions mandating I can’t post comments in my blog about the trial.
(Ha. Sorry. will do)” The Court of
Appeals vacated the judgment and the California State Bar suspended the juror.[ix]
Another concern is that the
advent and popularity of new avenues of communication are increasing the
stakes. In the past, the judge’s
admonition was primarily to prevent jurors from discussing the case with
family, close friends, or co-workers.
With Twitter, Facebook, and blogs, the potential impact is raised
exponentially. Now a juror can
communicate with thousands of people with one click, and the recipients can
likewise forward to their groups. In turn, the array of comments, information,
and biases coming back is limitless, particularly in high profile cases. It would be difficult to argue that a juror
could remain impartial and untainted upon receiving a barrage of opinions from
cyberspace.
Information Coming Into the Jury Box
It is not just outgoing
information that causes problems, but also the new propensity for juror
research that these handheld portals to information facilitate. Even “good jurors” with no intention of
impeding the judicial process can get caught up in the technology. On March 17,
2009, the front page of the New York Times reported that a juror in a
federal drug case admitted to conducting internet research during the
case. Moreover, upon questioning the
jury panel, the judge determined that eight other jurors had done the
same. The judge declared a mistrial
after eight weeks of trial. The defense attorney commented that “[i]t’s the
first time modern technology struck us in that fashion, and it hit us right
over the head.”[x]
Historically, we have encountered some issues
with jurors visiting the scene or conducting amateur sleuthing. Now jurors can click Google Earth and in
seconds see the scene in the palm of their hand. Likewise, information on just about any
subject is only a Google away. Motions
in Limine and other pre-trial evidentiary rulings will go out the window if
jurors conduct their own research. Curiosity
is a powerful driving force. Jurors are
generally very astute and if they sense missing pieces of the puzzle or are
left with unanswered questions, the temptation to “cheat” by running a quick
internet search from their couch may be hard to resist. Others may actually feel compelled to find
out as much as possible before they are comfortable rendering a verdict despite
the court’s admonition to only consider evidence presented at trial. In such cases, jurors may base their verdicts
on excluded or erroneous information.
Even pre-trial research by
potential jurors can be problematic. In
June, a San Francisco
judge had to excuse an entire panel of 600 jurors. During the voir dire process, a juror said
that he had done Internet research on the case and when questioned replied that
he hadn’t been ordered not to do so.
Several more jurors admitted to conducting Internet investigation as
well. Although one recalled some sort of
verbal admonishment, the juror didn’t understand that it included research on
the Internet. The questionnaires did not
have a cover sheet with a written admonition.
The case prompted the San Francisco Superior Court to propose a new rule
requiring jurors to be specifically instructed that, “[y]ou may not do research
about any issues involved in the case.
You may not blog, Tweet, or use the Internet to obtain or share
information.”[xi]
The South Dakota Supreme
Court recently upheld an order for new trial in a case where a juror had done
two Google searches on the defendant months before his jury duty, and then
mentioned the searches in deliberations.
In Russo v. Takata Corp.,[xii] a juror Googled the defendant after receiving
a juror summons and questionnaire, but before voir dire and being seated on the
jury. The summons stated in part: “Do
not seek out evidence regarding this case and do not discuss the case or this
Questionnaire with anyone.”[xiii]
During voir dire, attorneys asked if anyone had ever heard of Takata before and
no one answered affirmatively. No one
specifically asked about Internet searches and the juror at issue did not mention
his search.
Several hours into
deliberations, a juror asked whether Takata had ever been sued. The Googling juror responded that he did a
search on Takata but didn’t find any lawsuits.
Another juror reminded the panel that they were not supposed to consider
outside information, but no one reported the breach to the court. The jury returned a verdict for Takata. Plaintiffs learned of the discussion and
filed a motion for new trial. The trial
judge granted the motion and the Supreme Court affirmed, but noted that it was
a close case and by its ruling it was not announcing a hard and fast rule that
all such types of research prior to trial would automatically doom a jury’s
verdict.[xiv]
In a footnote, the Court
commented that the instruction in the jury summons may not have been specific
enough for the juror to realize that performing a Google search on the name of
the Defendant would constituted “seek[ing] out evidence.”[xv] It suggested that, “courts consider using
simpler and more direct language in the summons to indicate that no information
about the case or the parties should be sought out by any means, including via
computer searches.” It further
recognized that “[t]he potential for inaccuracies and its [the internet] wide
availability also support voir dire questions designed to identify any jurors
who may have accessed information about the parties on the internet.”[xvi]
What’s Happening in Arizona
Arizona has also seen these technologies disrupt the
system. Pima County Judge Kenneth Lee
recently removed a juror for repeatedly texting during the trial. The juror explained that his sister had been
trying to get him to baby sit. There was
no indication that the juror was sharing any information about the case,
however, the attorneys and judge agreed replace the juror with an
alternate. Although daydreaming, drowsy,
or doodling jurors are not new, portable electronic devices present unwarranted
competition for a juror’s attention. We
live in an era where texting and tweeting occur in the midst of a dinner date,
business meeting, or class lecture. Why
not the courtroom? Moreover, texters are
becoming so adept that some can even text from their pockets. We simply cannot assume that jurors even
realize that this is not appropriate unless it is clearly specified and
reinforced by the courts.
In Maricopa County,
a mistrial was called during the penalty phase of a capital murder case. The defendant had been convicted of killing
defense attorney Justin Blair in a drive by shooting. Judge Paul McMurdie specifically directed
jurors that they could not tweet, blog, or use the Internet in any way to
either investigate the case or to communicate about it. After several days of deliberations, a juror informed
the judge that he was the only juror favoring death and that the remaining
eleven jurors were unduly pressuring him to change his mind. The juror claimed that another juror had
accessed the internet via her cell phone during deliberations to find out what
would happen if a unanimous vote was not reached. He further claimed that earlier in the trial,
an alternate juror had searched the internet for elements of the trial. Subsequently, the judge and attorneys
questioned the jurors in detail. According to defense attorney, Treasure
VanDreumel, it became apparent that the jurors had not used the internet, as
alleged, and the juror who wrote to the judge was just trying to end the
deliberations. Ironically, the juror
used the judges’ explicit instructions regarding the Internet to manipulate the
system and cause the mistrial.
Arizona appears to be very progressive in addressing these
issues. The Criminal Jury Instructions
Committee has drafted Preliminary Criminal 13 – Admonition which is specific
and direct about the use of electronic devices, the Internet, and both incoming
and outgoing communications during trial.
The Admonition in part reads as follows:
Proposed Admonition
“Each of you has gained
knowledge and information from the experiences you have had prior to this
trial. Once this trial has begun you are
to determine the facts of this case only from the evidence that is presented in
this courtroom. Arizona law prohibits a juror from receiving
evidence not properly admitted at trial.
Therefore, do not do any research or make any investigation about the
case on your own. Do no view or visit
the locations where the events of the case took place. Do not consult any source such as a
newspaper, a dictionary, a reference manual, television, radio or the Internet
for information. If you have a question
or need additional information, submit your request in writing and I will discuss it with the attorneys.
Do not talk to anyone about
the case, or anyone who has anything to do with it, and do not let anyone talk
to you about those matters, until the trial has ended, and you have been
discharged as jurors. This prohibition
about not discussing the case includes using e-mail, Facebook, MySpace,
Twitter, instant messaging, Blackberry messaging, I-Phones, I-Touches, Google,
Yahoo, or any internet search engine, or any other form of electronic
communication for any purpose whatsoever, if it relates in any way to this
case. This includes, but is not limited
to, blogging about the case or your experience as a juror on this case,
discussing the evidence, the lawyers, the parties, the court, your
deliberations, your reactions to testimony or exhibits or any aspect of the
case or your courtroom experience with anyone whatsoever, until the trial has
ended, and you have been discharged as jurors.
Until then, you may tell people you are on a jury, and you may tell them
the estimated schedule for the trial, but do not tell them anything else except
to say that you cannot talk about the trial until it is over.
One reason for these
prohibitions is because the trial process works by each side knowing exactly
what evidence is being considered by you and what law you are applying to the
facts you find. As I previously told
you, the only evidence you are to consider in this matter is that which is
introduced in the courtroom. The law
that you are to apply is the law that I give you in the final
instructions. This prohibits you from
consulting any outside source.
If you have cell phones,
laptops or other communication devices, please turn them off and do not turn
them on while in the courtroom. You may
use them only during breaks, so long as you do not use them to communicate
about any matter having to do with the case.
You are not permitted to take notes with laptops, Blackberries, tape
recorders or any other electronic device.
You are only permitted to take notes on the notepad provided by the
court. Devices that can take pictures
are prohibited and may not be used for any purpose.”
In addition to its
specificity, this admonition educates the jurors providing a rationale for the
prohibitions. This type of explanation
may prove particularly helpful for those jurors who want to do the right thing,
but have a misguided notion that they are helping by conducting their own
research. Pending approval by the Board
of Governors, many Arizona
judges have already implemented similar language into their admonitions.
[note: the
Board is scheduled to consider for approval on November 20, so this section may
need to be updated to reflect the decision and action]
Even with the proposed
Admonition, several issues remain. Who
should be allowed to carry electronic devices into the courthouse? How should people be punished for violating a
judge’s order? Judge Jan Kearney, the
presiding judge of the Pima County Superior Court, said that she would like to
form a committee to discuss these issues.[xvii]
The Director of Jury Management, Maricopa
County, Mitch Michkowski,
Ph.D. offered his thoughts on the matter.
“I believe that most trial courts continue to enthusiastically embrace
the fortunes of technology, though as in the case in Maricopa County Superior
courts, judges understand the importance of wanting to avoid juror misuses of
cell phones, computers, and other electronic communication devices. Jurors are customarily cautioned by our
judges by means of an admonition which is designed to specifically clarify the
ground rules that apply. Jurors are
expected to observe and follow all judicial instructions in order to avoid
unnecessary mistrials and in the vast majority of cases, our jurors have
understood and complied admirably.”
Other Possible Solutions and
Recommendations
In addition to strengthening
the admonition, some courts are also considering restricting the use of, or
banning, cell phones, Blackberries, and other electronic devices in the
courthouse, or at least in the jury room.
In the San Diego
case regarding Jennifer Strange, the mother who died during a radio contest to
see who could drink the most water without going to the restroom, the defense
was concerned about jurors conducting independent research due to the vast
media coverage. They noted that tens of
thousands of results come up when Googling “Hold Your Wee for a Wii” or “water
intoxication.” As reinforcement to his admonition,
the judge ordered that the jurors must sign declarations attesting that they
won’t use “personal electronic and media devices” to conduct independent
research or communicate about the case.
These declarations are to be made under the penalty of perjury, both
before and after the trial.[xviii]
Although many of the
protections against prohibited juror communication must come from the courts,
there are several things that a trial attorney can do according to Susan C.
Salmon of Quarles & Brady.
·
Ask
the trial judge to expand his/her boilerplate admonition to incorporate an
explicit explanation of the policies behind the rule and the consequences of
violating the rule. Be prepared with
your own draft admonition and submit it with your jury instructions.
·
To
the extent that the judge or your jurisdiction permits you to do so, use voir
dire to (1) educate the panel regarding why they shouldn’t do outside research,
including Internet research, and (2) enlist the jurors in helping the court
enforce that restriction.
·
In Arizona, where I currently
practice, jurors can submit questions to be asked of a given witness. Sometimes those questions may clue you in
that jurors are doing improper outside research. Be alert to that possibility, and be prepared
to ask the court to inquire.
·
Bone
up on your e-discovery law, and be prepared to subpoena text message records,
laptop hard drives and other ESI if you suspect juror misconduct created an
appealable issue.[xix]
Additionally, trial attorneys
will want to become very familiar with the language and terminology associated
with social networking so that they will be prepared to conduct appropriate
follow up during voir dire. Moreover,
they may want to incorporate a line of questioning during voir dire to identify
jurors who may have problems following the court’s instruction to only consider
the evidence presented during trial, or even believe that such an instruction
is wrong. Finally, attorneys can monitor
on line writing during and after trial.
One of the best methods is through a feed reader. Google Reader is user friendly and will
search various internet cites for key words that you input, such as case name,
city, jury duty, and any other terms that might make your case
identifiable. It then gathers all relevant
writings in one convenient place for your review.
The advancements are not all
bad for the jury system. In fact,
attorneys can use social networks and internet capabilities to learn more about
their prospective jurors. As referenced
at the beginning of this article, some “tweets” can tell you quite a bit about
jurors’ attitudes. Similarly, paying
attention to jurors’ social networking, blogs, and websites can tell a lot
about their values, attitudes, and experiences that would never be fully
revealed in voir dire. Even with this upside, attorneys should proceed with
caution. Just as juror internet research
may not be credible, attorneys cannot trust that information from a juror’s
blog, My Space, or Facebook is truthful.
Then again, the fact that someone posted inaccurate information may be
telling in and of itself. Attorneys may
also want to tread lightly when questioning jurors about their networks. Although
blogs, My Space, and Twitter
may be public displays, some jurors might feel personally invaded if they sense
they are being researched. Attorneys and
consultants will want to be careful not to conjure up images of Gene Hackman in
Runaway Jury, but will need to
address the issue.
Beyond juror use, technology
is wreaking havoc in other trial areas as well.
Tucson
attorney Laura Udall recently learned that a witness had repeatedly texted
another witness during trial to tell him how to testify.[xx] In Portland,
a judge was shocked to discover that a defendant accused of domestic violence
was texting the victim while she was waiting in the courthouse to testify.[xxi] Jurors, witnesses, and parties have always
found ways to try to circumvent or thwart the system. However, we can expect that increased ease
will directly equate to increased activity and need to be prepared.
The issues are new, many, and
widespread. The solutions are still
evolving. Some will have to come from
the courts. For now, carefully addressing
these issues in voir dire can help identify undesirable or problematic jurors,
educate the jurors regarding their role, and reinforce the admonition. It will
be critical to query jurors on whether they have mentioned jury duty in twitter
messages or blogs. If so, get them to
the bench to determine the exact wording of their comments. Ask jurors if they have been reading internet
info on the jury duty experiences of others, and if so, determine what this
entailed. Judges will need to specifically instruct the panel not to discuss
the case through emails, twitter messages, blogs, chat rooms, or other internet
options. Without question, new
technology and communications call for new courtroom practices.
[i] 2009 Networks for Counsel Study, Leader
Networks, at 12, available at www.leadernetworks.com/documents/Networks_for_Counsel_2009.pdf.
[ii]See Anne Reed, A Trial Lawyer’s Guide To Social Networking Sites, Deliberations, available at
www.jurylaw.typepad.com/deliberations/social_networking.html.
[iii] Scott
Michels, Cases Challenged Over ‘Tweeting’
Jurors, ABC News, March 17, 2009, available
at www.abcnews.go.com/print?id=7095018.
[iv] Id. at 2.
[v] Id.
[vi] Robert
K. Gordon, No tweeting during the trial,
please, The Huntsville Times, Oct. 20, 2009, available at www.al.com/news/huntsvilletimes/local.ssf?/base/news/125603014432660.xm1&coll=1.
[vii] Id.
[viii]
Douglass Keene, Panic on Tweet Street: “Without Twitter, I felt jittery and naked”, The
Jury Room, August 7, 2009, available at www.keenetrial.com/blog/2009/08/07/panic-on-tweet-street-without-twitter-I-felt-jittery-and-naked/.
[ix]The
juror also failed to disclose he was an attorney; CAL. BAR JOURNAL, August 2009, available at
www.calbar.ca.gov/state/calbar/calbar_cbj.jsp?sCategoryPath=/Home/Attorney%20Resources/California%20Bar%20Journal/August2009&month=August&YEAR=2009&sCatHtmlTitle=Discipline&sJournalCategory=YES.
[x] John
Schwartz, As Jurors Turn to Web,
Mistrials Are Popping Up, The New York Times, March 18, 2009, available at
www.nytimes.com/2009/03/18/us/18juries.html?_r=1&pagewanted=print.
[xi] Erin
Geiger Smith, California Jurors Will Be Told Not To Tweet, The Business Insider, Sep. 21,
2009, available at www.businessinsider.com/california-jurors-will-be-told-not-to-tweet-2009-9;
see also Kate Moser, Court Lays Down Law on Jury Internet Use,
The Recorder, Sept. 9, 2009.
[xii] Russo v. Takata Corp .(2009), available at
www.sdjudicial.com/opinions/downloads/y2009/24726.pdf.
[xiii] Id. at 2.
[xiv] Id. at 21.
[xv] Id at 14.
[xvi] Id.
[xvii] Kim
Smith, Internet, cells raise new jury
concerns, Arizona Daily Star, Sept. 8, 2009, available at www.azstarnet.com/sn/printDS/308049.
[xviii] Greg
Moran, Revised jury instructions: Do not use the Internet, The San Diego
Union-Tribune, Sept. 13, 2009, available
at www3.signonsandiego.com/stories/2009/sep/13/revised-jury-instructions-do-not-use-internet/.
[xix] Susan
C. Salmon, Googling and Tweeting and
Facebooking, Oh My! Jurors Conducting
Outside Research During Trial, E-Discovery Bytes, March 17, 2009, available at
www.ediscovery.quarles.com/2009/03/articles/miscellaneous/googling-and-tweeting-and-facebooking-oh-my-jurors-conducting-outside-research-during-trial/.
[xx] Kim
Smith, Internet, cells raise new jury
concerns, Arizona Daily Star, Sept. 8, 2009, available at www.azstarnet.com/sn/printDS/308049.
[xxi] Adam
Worcester, Jurors’ tweets, texts upset
trial judges, PORTLAND BUSINESS JOURNAL, Sept. 18, 2009, available at www.portland.bizjournals.com/portland/stories/2009/09/21/focus2.html.
Post a Comment