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Tuesday, June 25, 2013

Juries and Social Media

Anyone who has watched Perry Mason, Law & Order, or Private Practice knows that jurors are not allowed to talk about the case with anyone (including family members) while the trial is going on, and particularly not during jury deliberations.  Yet, we have cases like the one in Arkansas where a defendant’s capital murder conviction was overturned on appeal because one of the jurors had been “tweeting” during the trial and jury deliberations.  The juror’s activities were discovered during the trial, and the trial judge admonished, but did not replace, the juror.  The defendant was subsequently convicted of robbing and shooting a teenager after a party.  The defendant’s lawyer appealed the conviction, arguing that the juror’s tweets violated the trial judge’s instruction not to post on online or otherwise communicate with anyone about the case.
The state supreme court overturned the conviction, stating that “Because of the very nature of Twitter as an online social media site, [the juror's] tweets about the trial were very much public discussions. Even if such discussions were one-sided, it is in no way appropriate for a juror to state musings, thoughts, or other information about a case in such a public fashion.”  The appellate court pointed out that one of the juror’s followers was a reporter, and so media had advance notice that the jury had completed its deliberations before an official announcement was made to the court.
Courts are usually unwilling to overturn verdicts because of juror misconduct as it is often difficult to demonstrate that the misconduct had a prejudicial impact on the defendant.  In this case, the appellate court’s decision was based on the juror’s failure to follow the judge’s instructions rather than any prejudicial impact from the juror’s tweets.
Although courts have been reluctant to place widespread bans on jurors’ use of mobile phones and other electronic devices during trial, it is becoming routine to instruct a jury on social media as part of the judge's instructions to the jury.  For example, a recent jury instruction in a district court case included the following:
Court's 26: Outside Communications:
During your deliberations, you must not communicate with or provide information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet service, or any text or instant messaging service; or any internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.
We are probably going to see more of these cases, which could ultimately lead to the adoption of stricter regulations, and even full scale bans, on the use of electronic devices in the courtroom.  Some courts already have enacted these type of bans.  For example, the circuit court in Cook County, Illinois prohibits people from bringing in cell phones and electronic devices to the criminal court building.  Interestingly, jurors are exempt from that ban, as are attorneys, police officers, government employees and others.      

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