The rapid growth of social media and online networking has had a significant impact in the courtroom, particularly concerning jurors. Some jurors have triggered mistrials and new trials as a result of inappropriate social media activity during trials. A few jurors have even faced charges of contempt of court for their posts and activities on Facebook or Twitter during trials.
Asking for Twitter Names during Voir Dire
How often do trial lawyers ask the jury venire during voir dire for their Twitter handles? Considering how slow many lawyers have been to adapt to evolving technology, my guess is that there aren't many. However, this is precisely what was recommended by attorney Tomasz Stasiuk in an article called Twitter in Court: Find Out Who Is Tweeting. Stasiuk points out that Twitter is "a huge back channel" showing what people are thinking and discussing with their friends. As Stasiuk states, "The more people feel they are trapped somewhere they do not want to be . . . the more likely they are to be tweeting about it to their friends."
Leslie Ellis makes a similar point in Friend or Foe? Social Media, the Jury and You. Ellis says that lawyers should attempt to identify the social media accounts of jurors, study their public posts, make sure the person they found online is the same person who is in the courtroom, and incorporate the knowledge gleaned from their social media posts into voir dire. Ellis also cautions attorneys to remember not to commit any ethical violations in this process, such as using a fake identity or getting a third party to access the person's restricted pages.
Attorneys representing Conrad Murray did precisely this during jury selection, screening jurors based on their Twitter and Facebook posts. The jury questionnaire asked the jurors to disclose information about their social media posts such as whether they had publicly commented on Conrad Murray and his involvement with Michael Jackson's death, and the lawyers also studied information that was publicly available online about the jurors.
Social media offers the opportunity to learn far more about jurors than was possible in the past. While some may find it disturbing to realize how much information can be gleaned about people, it would be far more disturbing to let someone on a jury who is tweeting negative comments about your client to his friends. Try eavesdropping on what your jurors are tweeting, and you may learn something that could change the outcome of your case.
Juror Misconduct on Facebook or Twitter
Juror misconduct online has resulted in numerous new trials and overturned verdicts. According to a Reuters Legal article, the rate of jurors tweeting or posting comments on social media sites during trials is astoundingly high.
What if you believe a juror is engaging in misconduct in their social media posts? If you've heard that a juror has been posting comments but you don't have access to what was said because you haven't "friended" the juror or because of their privacy settings, then one approach would be to ask the judge to order the juror to release his or her social media records. This was attempted in a case in California and became an issue that is pending in the appellate courts when the juror refused to comply with the order. In that case, the juror had posted messages on Facebook during the trial, including one about how boring it was going over some of the evidence. However, at a hearing over the issue the juror insisted that he did not comment on the evidence and did not express an opinion about the defendant's guilt. Nonetheless, the judge ordered the juror to turn over his Facebook records. Rather than comply with the judge's order, the juror filed an appeal arguing that federal law protected the material from disclosure unless police have a warrant.
In a more unusual case, a male juror in Florida has been accused of "friending" a female defendant while serving on her jury. Rather than accept the friend request, the juror told her lawyer about it and the man was dismissed. However, the man then went home and posted comments on Facebook making jokes about getting out of jury duty. The judge scheduled a hearing on whether the juror should be held in contempt of court, which could result in a fine or even jail time. A ruling has not been made as of the time of writing this article.
Juror misconduct in social media can have dramatic consequences on the outcome of a trial. In Arkansas, the Arkansas Supreme Court reversed a capital murder conviction and death sentence and ordered a new trial due to a juror repeatedly tweeting comments during trial and even during jury deliberations. Although the trial court made a finding that the defendant did not suffer any prejudice, the Arkansas Supreme Court disagreed and said that the juror's tweet's constituted public discussion of the case. They went on to recommend that the court system should consider limiting juror access to mobile devices during the course of trials because of the risk of this conduct and because mobile devices give jurors access to a wide range of information they should not be considering in their deliberations.
Juror social media conduct creates opportunities for better understanding the beliefs of potential jurors. It may also provide an opportunity to challenge jury verdicts on appeal or even in post-conviction proceedings in criminal cases when it can be shown that members of the jury were engaged in improper social media behavior. Make sure to study the social media habits of the venire, question them about their social media posts, and keep an eye on the Twitter and Facebook posts of those who make it onto the jury.
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