Wednesday, April 6, 2011

Social Media and Juror Misconduct: A Growing Problem

Juror misconduct has taken-off with with the proliferation of social media like Facebook, Twitter, Myspace and blogging. In the past, an admonishment by the judge not to talk to witnesses, read the newspaper or talk about the case at home was enough to insulate jurors from undue influence. Not anymore. The California Lawyers explores the dangers and pitfalls of jury service and social networking.

Juror misconduct in the electronic media age hits at the heart of a fundmental constitutional right, the Sixth Amendment right to a fair trial. The California Lawyer provides some compelling examples of the growing problem:

-- In California a juror tweeted descriptions he obtained via Internet research on the difference between a medical examiner and a coroner, after the medical examiner testified. He bragged about seeing the judge's sidebar "scolding" of lawyers in the case. And he got feedback on his blog posts from a coterie of sympathetic online readers. After complaining about the length of the 19-day trial, the juror told his readers that he had volunteered to be foreman to "expedite matters." While serving as foreman during deliberations, he used his cell phone camera to photograph the murder weapon--a 15-inch saw-toothed knife--and posted the image on his blog.

-- A judge in Michigan fined a juror $250 last fall, and ordered her to write an essay on the Sixth Amendment, for posting a comment on her Facebook page-before the defense had presented its case-that she thought the defendant was guilty.

-- Five jurors in the corruption trial of former Baltimore Mayor Sheila Dixon last year "friended" one another on Facebook and continued to post comments about their jury service, even after being told not to by the judge.

-- A juror in West Virginia failed to disclose during voir dire that she knew the defendant and had contacted him on MySpace after receiving her jury summons. Her lengthy message included, "God has a plan for you and your life." The state Supreme Court overturned the defendant's fraud conviction, becoming one of the first courts in the nation to base its juror-misconduct ruling on a person's messages to a "friend" on a social networking site (State v. Dellinger, 225 W. Va. 736 (2010)).

The California Lawyer also touches on the way the issue is being addressed:

--The Ninth U.S. Circuit Court of Appeals revised its model jury instructions to account for Internet and other technologies. They read, in part, "Do not communicate with anyone in any way and do not let anyone else communicate with you in any way about the merits of the case or anything to do with it. This includes discussing the case in person, in writing, by phone or electronic means, via e-mail, text messaging, or any Internet chat room, blog, Web site or other feature." (Ninth Circuit Model Crim. Jury Instr. 1.8.)

--Another strategy is to determine which potential jurors are using new technologies before they get on panels. "Along with admonitions, judges and attorneys can ask basic questions of potential jurors--if they are using social media, Twitter, or blogs," Attorney Michelle Sherman told the California Lawyer. "There is no reason a judge can't ask their Twitter name. And they can impress on jurors [that] their activity will be monitored."

However, according to the California Lawyer, there are pitfalls for lawyers who try to monitor abuse. An attorney on Facebook should not be falsely "friending" potential jurors, friends of jurors, or adverse witnesses just to get a look at posts walled off by privacy settings, Attorney Sherman warns. Nor should they let anyone who works for them do so. An ethics committee in Pennsylvania recently said as much (Phila. Bar Assoc., Prof. Guidance Comm., Opinion 2009-02 (Mar. 2009)).

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