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By: Daphne Drescher, CP
Reprinted with permission from Proparalegal: www.proparalegal.com.
A super interesting article from Daphne Drescher regarding social media, jurors, and courtrooms? You better believe it! But don’t take our word for it – keep reading.
In Arkansas, a death row murder conviction was overturned when the defense counsel proved a juror had repeatedly tweeted about the case mid-trial.
In New Jersey, a mistrial was declared in a child sexual assault case because a juror had done internet research, printed out his findings and shared them with fellow jurors.
A Michigan juror was removed from the jury, fined $250, and required to write an essay on the Sixth Amendment because she posted a pre-verdict comment on Facebook announcing the defendant was going to be found guilty.
Last year in Great Britain, a juror was actually sentenced to eight months in jail for Facebook friending a defendant in a drug trial.
It seems an increasing number of mistrials are being declared, and convictions and verdicts are being overturned due to alleged juror misuse of internet research and social media.
Just how big is the problem?
After all, trial attorneys will say there have always been instances of jurors doing their own research outside the courtroom, even though they’re instructed not to. And jurors have always been able to communicate their thoughts about trial goings on to friends and family, despite admonishments not to do so.
It’s just that decades ago, if jurors wished to conduct independent research, they had to physically go somewhere to do it – the public library, or the alleged crime scene, etc. Now they just need Google. And up until the common use of smart phones, they at least couldn’t share their comments about the trial with others from the court room itself.
Is use of internet research and social media by jurors mid-trial really a serious problem impacting the furtherance of justice in the court system? Or have these activities just become another issue for counsel to use to appeal a conviction or verdict they aren’t happy with?
What’s the real issue here?
We all know that whether in a civil or criminal trial, jurors are instructed not to consider any facts outside of what they see and hear inside the court room, and not to discuss the trial with friends or family. But why are these things so important?
They are important because our judicial system relies on the premise that a fair trial results from jurors forming their verdict based only and entirely upon what they see and hear inside the courtroom. Each side has an expectation that decisions will be made by jurors based on evidence the parties know about and have themselves presented.
When jurors do independent research, their decisions may be influenced by inaccurate, misleading or incomplete information that hasn’t been vetted by the judge or tested by cross-examination.
When jurors exchange their opinions with others in any fashion, whether in conversation, in email, or on Facebook or Twitter, they risk revealing deliberations before they’re intended to be public. They may give an appearance of bias, which can call their verdict into question. They may begin a conversation with others that can influence their decisions.
When jurors entertain information, comments or opinions they gather outside the courtroom, they deny the parties a fair trial.
What can the Courts do?
Model Jury Instructions in most jurisdictions now contain specific admonishments to jurors that they must refrain from discussing the case in any manner, and refrain from performing any outside research, including on their computers and smartphones.
New York federal court Judge Scheindlin of Zubulake fame is considering making jurors sign a pledge promising they won’t use the Internet to research the case and subjecting them to perjury charges if they do so. At least one San Diego judge has already done this, in high profile cases.
Some courts are considering banning cell phones, Blackberries and other electronic devices in the jury room.
In California, a new law has made it illegal for jurors to willfully disobey jury instructions prohibiting them from using electronic or wireless communications, or from conducting Internet research about a trial. (See Code Civ. P. §§611, 613, 1209, and Penal Code §166)
What do you think? Has anything interesting happened in your corner of the legal world with regard to social media, jurors, and courtrooms? Do tell!
Daphne is a virtual litigation paralegal and owner of California-based Drescher ProParalegal. She is also an instructor in the Paralegal Degree Program at Empire College. For more information, visit Daphne’s website http://proparalegal.com where you can subscribe to the free Drescher ProParalegal Newsletter full of litigation practice tips and resources for legal support staff.
©2011 Drescher ProParalegal. All rights reserved.
To sum it up in a word: Yikes! We love it when Daphne stops by TPS to share her well-written, amazingly helpful, academically infused articles with her favorite paralegal people (in case you didn’t catch that – we’re totally gonna pretend we ARE her favorite peeps in paralegal land). She’s certainly one of our favorite contributing writers.
Wishing you an absolutely stunning work week, paralegals! May your head remain attached, your ambition steadfast, your commitment unwavering, and your patience never-ending. And may your caffeine-filled cup of sanity overfloweth in the land of legal. Go get ’em.
We’ll see you Friday!