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In Case You Hadn’t Heard… Jurors Using Social Media Continues to be an Issue

by Keith Hock

Earlier this year my colleague, Rebekah Smith, wrote a blog post that described a Florida juror who was dismissed from the jury after he “friended” the defendant on Facebook (the complete post is here).  At the time, Rebekah reported that criminal charges against the dismissed juror were pending.  Now the verdict is in: the juror was sentenced to three days in jail for contempt of court.  In addition to “friending” the defendant, the juror also bragged about getting out of jury duty – a move the judge was not happy about (see more details here).

In addition to this case, there have been a couple of recent developments regarding jurors and social media (Facebook, Twitter, etc.).  First, a California appeals court ordered a juror to turn over Facebook messages the juror had posted during a criminal trial (more details are here).  Initially the posts had been sought through a subpoena to Facebook.  Facebook successfully quashed the subpoena by arguing, at least in part, that the relevant messages could be provided by the poster (the juror).  The court agreed and issued an order requiring the juror to provide the posts.  The juror appealed the ruling and the California appellate court upheld the order in June (the State Supreme Court declined to take up the case in August).  Whether the Facebook posts will change the outcome of the original trial or result in action against the juror is not currently known.

The second development appears to be in response to cases like the one described above.  This summer the Judicial Conference Committee on Court Administration and Case Management issued updated model jury instructions designed to specifically address jurors’ use of social media (more details here).  Included in the model instructions are the following admonitions to jurors:

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, including Facebook, Google+, My Space, LinkedIn, or YouTube.  You may not use any similar technology of social media, even if I have not specifically mentioned it here.

You may not use any electronic device or media, such as the telephone, a cell phone, smart phone, iPhone, Blackberry or computer, the Internet, any Internet service, any text or instant messaging service, any Internet chat room, blog or website such as Facebook, MySpace, 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.

You may not use these electronic means to investigate or communicate about the case because it is important that you decide this case based solely on the evidence presented in this courtroom.  Information on the internet or available through social media might be wrong, incomplete or inaccurate. (Editorial note: who knew?)

In addition, the instructions ask jurors to inform the judge if they become aware of any violations of these instructions.  While it seems unlikely that any warning from a judge will stop all jurors from using social media or the internet during trial, reminding jurors of their obligations seems like a step in the right direction – especially if backed up by jail sentences for jurors who chose to not follow instructions.

Has one of your cases been impacted by social media use by a juror or other trial participant?  If so, please share your story through the comments section below.

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