Lawyers Generally Permitted to Use Social Media for Voir Dire of Jurors; Md. Judge Denies Use

Generally lawyers are not prohibited from perusing prospective jurors' social media "presence" (such as Facebook pages) as a part of voir dire so long as there is no communication with the prospective juror.
Link: http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1365358260083&thepage=2

I suggest that a lawyer should inquire of the judge out of the hearing of the jury if the lawyer has doubts about certain voir dire questions formulated from a juror's social media presence.

Md. Judge denies use of Internet for voir dire investigation of jurors:
Link http://www.gazette.net/article/20130515/NEWS/130519448/1123/montgomery-judge-denies-internet-searches-for-jury-selection&template=gazette

Juror Charged With Contempt for Failing to Disclose Wife's DWI During Voir Dire

During jury selection a juror who sat in a DWI case failed to disclose that his wife had a DWI.  He has been charged with contempt and the matter will be going to trial. The DWI defendant, a famous polo mogul in Florida, was granted a new trial.
Link:  http://www.sun-sentinel.com/news/local/breakingnews/fl-demartin-motions-20130508,0,416396.story

"Another One (Juror) Bites the Dust!"-Texting Juror Heads to the Hoosgow

Like Queen sang, "Another one bites the dust!"  Here again a juror is texting IN THE COURTROOM and the sanction is a visit to the local hoosgow, clink, slammer.  Not surprisingly the violator is under 30.

http://www.kmtr.com/news/local/story/Juror-held-in-contempt-for-texting-during-trial/kNNQtlm9_kuqKtAPXvY8KA.cspx?rss=191

Bailiif's Comment to Jurors Causes Mistrial

Sometimes trial participants other than the jurors cause mistrials through their poor judgment.  Here is a link to an article about a mistrial caused by a bailiff's comment to jurors implying that they should acquit the defendant and get this #$%@! case over with.

http://www.commercialappeal.com/news/2013/mar/29/memphis-rape-case-ends-in-mistrial-as-jury-by-is/

Deliberating Jurors' Use of Toy Cars to Re-enact Accident Not Grounds for Inquiry

A juror bought toy cars over break in criminal trial deliberations and jurors then used them to re-enact the accident that was the subject of the trial.  Judge denied motion for inquiring further of the jurors, deciding using toy cars was no different than diagraming the accident on paper.
Link: http://www.courts.ca.gov/opinions/documents/E054307.PDF

Juror Dismissed in Arias Trial For Comments to Fellow Juror

In the sensational, nationally-followed Arias trial, the judge has denied a mistrial, but dismissed a juror for comments to a fellow juror indicating lack of impartiality.

Link:  http://hosted.ap.org/dynamic/stories/U/US_BOYFRIEND_SLAYING?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT

Wrongful Death Case With Facebooking Jury Foreman Heads to Missouri Appellate Court

The trial judge denied plaintiffs' motions for new trial, finding the foreman did not discuss the facts or the deliberation decision-making process.  This "no harm, no foul" analysis has been followed by other courts.
Link:   http://www.news-leader.com/article/20130210/NEWS01/302100081/Jury-foreman-Facebook-posts-wrongful-death-case?gcheck=1&nclick_check=1

Tenn. Grand Juror Discovered to Be Convicted Felon

Ninety indictments must be resubmiited to a grand jury after it was discovered that the foreman was a convicted felon.  The grand jury had issued indictments in 800 cases in a 3-month period.  Here is the link:

http://www.kltv.com/story/20924438/nashville-da-says-grand-jury-foreman-was-felon

Journal Article on de Tocqueville's Likely Take on Tweeting Jurors

http://issuu.com/njcmag/docs/rlj-vol2-iss3-fall-winter_folder-electronic-spread

Federal Judge Rescinds Order for Seizure of Juror's Computers

A juror in a federal criminal trial was quoted in the newspaper as having conducted Internet research during the trial in violation of the judge's instructions.  The defendant was sentenced to a 10-year prison term.  The judge ordered that US marshals seize her computers but has rescinded that order and has ordered her to appear in court with her computers or hard drives.
Here is an article about it:
http://www.tampabay.com/news/courts/criminal/article1269464.ece

Should Judges Allow Lawyers to Be Facebook Friends?

From my brief research only a few states have specifically addressed this issue through their lawyers ethics boards.  In my opinion, no, they should not as it gives the appearance of impropriety under the judicial ethics canons.  Here is a link to an article on this issue from Florida:

http://www.palmbeachpost.com/news/news/crime-law/state-high-court-asked-to-decide-whether-judges-la/nTyhj/

For judges who host blogs, such as this one, it is possible to block the names of "followers" so the judge does not know who they are.

Here is another article with a photo of our most famous "jurist":

http://abovethelaw.com/2011/12/if-you-are-a-judge-do-your-facebook-friends-matter/

Should Professionals Be Excused From Jury Duty?

Nationwide there is a problem of getting summoned jurors to show up at court for day one of a jury trial.  One of my colleagues recently had 10 jurors fail to appear for day one a civil trial.  We judges also receive many requests to be excused from jury duty.  Many jurors can have their jury duty deferred to a more-convenient time, such as winter for construction workers and summers for teachers.  But I am frankly angered by the letter requests which basically say this, reading between the lines:

Dear Judge: 
Please excuse me from jury duty.  I have a professional job (business, etc) with many (clients, patients, students, etc.) which require my attention and they will not understand that I am unavailable due to jury duty.  This makes me more important than the average citizen, so please excuse me.  Perhaps some unemployed people or retired folks can serve in my place.
Sincerely,
Very Important Citizen

Jury duty is just that, the DUTY of every citizen in our democratic republic.  Millions have died to protect our freedoms, including the right to have a jury trial AND to sit as a juror if called to serve.  Tens of thousands have served in Afghanistan, have died or suffered great emotional and physical harm to protect these freedoms.  It is an honor to serve on a jury, not an inconvenience.

Can Lawyers Impeach Jurors During Voir Dire?

Assume these scenarios:

During voir dire counsel for both sides are searching juror's names on social media sites such as Facebook, as well as "Googling" their names, for information about  jurors.  Assume these various scenarios.

One of the attorneys discovers a prospective juror:

1.  Has a felony record (uncertain if rights have been restored) which was not disclosed (and falsely so) during general voir dire by the judge

2.  Has been commenting in general about jury selection and the type of case on his/ her  Facebook page

3. Failed to disclose that he or she had been employed in the industry of which one of the parties is involved and was:

    a.   A clerical employee
    b.   In a technical or research capacity as an employee
    c.   A "whistleblower" to the government for which they were highly compensated

4.  Is a member of an organization which might make them biased, eg.  a member of MADD for a DWI trial

My questions would be:

1.  If , as an attorney, you decide to seek a juror's dismissal, do you move the court out of the hearing of the jury panel?

2.  Do you request permission to, basically, impeach the juror, giving them the opportunity to explain?  Out of the hearing of the other jurors?

3.  As a judge, how would you handle these scenarios?

4.  As a judge, do you warn the jurors that lawyers may be looking at their Facebook pages?  (I wouldn't.)

These are all questions worthy of discussion
 and thought.

Mass. Juror Dismissed for Internet Research During Deliberations

Link to video including judge's comments.

http://www.wcvb.com/news/local/metro/Juror-in-Mattapan-Massacre-trial-discharged-for-misconduct/-/11971628/17719126/-/rcu95t/-/index.html

Farmville Visit by Defendant Results in Mistrial

I heard the story of a defendant in a MN felony trial who, during the course of the trial, was playing "Farmville" on Facebook (I hope I got that right) with 2 jurors.  They discovered it, told their fellow jurors the next morning at court, the bailiff told the judge, and a mistrial was declared.  The defendant claimed he didn't know the contestants on Farmville were jurors, but a search of records determined that he had searched their names.  The defendant was charged with Juror Tampering and eventually pled guilty to the original charge.  The jurors were, perhaps, not "behaving badly" other than reporting it to the whole jury and eliminating any chance of avoiding a mistrial (if there were 2 alternates).  I hesitate to think of the outcome had they failed to report it.

Don't Think Teens (and Jurors) Can Be Addicted to Their Smart Phones?

Just read this story and consider that we quite often having 18-20 year olds on our jury panels during voir dire:

Link    http://www.tcpalm.com/news/2012/nov/27/jensen-beach-teen-charged-after-threatening-to/

"Guilty As Tweeted": Australian Lawyer's Scholarly Article on Jurors and Social Media

Link is to abstract, with additional link to the entire article:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2176634&download=yes

The article is lengthy and detailed, but one suggestion from the author is that the court confiscate phones during the trial day.  I oppose such action because (1) court administrators likely won't want responsibility for electronic devices, fearing claims someone's phone was stolen or tampered with; (2) it will have the adverse effect of encouraging juror inquiry on social media and the Internet when not in trial.

Texas Bar Journal "The Advocate" Focuses on Trials and Social Media

Link:  http://www.litigationsection.com/downloads/Advocate_V60_Fall2012.pdf

Deliberating Juror Using Pseudonym May Be Charged With Felony for Comments on Newspaper Website

A deliberating juror who may have made comments on a newspaper website under a pseudonym (BePrepared) may face felony charges.
Link:  http://stlouis.cbslocal.com/2012/10/31/judge-orders-kan-newspaper-to-reveal-name-of-commenter/

In another case a Facebooking juror was NOT requested by the attorneys to be excused where her comments were rather innocuous.  But since she was withdrawn from the jury room for questioning by the judge, it is likely many of the jurors will go on Facebook that evening to see what she said.

Link  http://www.wacotrib.com/news/176706161.html

Misbehaving Prospective Juror Faces Jail

A prospective juror conducted Internet research and discussed the case with other jurors despite the judge's written admonitions, was excused and now faces jail.. It is a death penalty case in Florida.

Link  http://www.tampabay.com/news/courts/criminal/hillsborough-judge-vows-to-send-prospective-juror-to-jail/1255802

National Center For State Courts Releases Study of Jury Use of New Media

The authors of the report acknowledge that it was a small sample and that those jurors surveyed may not have been willing to disclose violations of the judges' admonitions regarding social media and the Internet.  Still, they drew these interesting conclusions (at p. 7):

1.  Few jurors reported committing misconduct of any kind-- with the Internet, friends or families

2.  A substantial portion of the jurors could not recall that the judge had given an admonishment about new media use or incorrectly believed such searches were permissible

3.  A sizable proportion of actual and prospective jurors indicated a desire to use the Internet to obtain information relevant to the trial

4.  A significant proportion indicated they would be unable to refrain from Internet use for the duration of the trial.

The authors recommend further study of these issues.

LINK   http://www.ncsc-jurystudies.org/What-We-Do/~/media/Microsites/Files/CJS/New%20Media%20Study/NCSC-Harvard-005-Juror-and-Jury-Use-of-New-Media-Final.ashx

Prosecutors Move Court to Order Defendant's Supporters to Close Website

One of my greatest worries in a criminal case is that a juror will disregard my admonitions not to conduct Internet research and will find a website constructed by the Defendant or their supporters.  Here is a link to a motion filed by prosecutors for an order requiring the Defendant's website (Justice for Reeco) to be closed.  The Defendant was charged with auto theft but his website primarily concerns his lawsuit against the police for injuries suffered as a passenger in a fiery collision at the end of a high speed chase in Maryland.  Lots of evidence posted on the website.

http://www.justiceforreeco.com/wp-content/uploads/2012/10/Richardson-Motion-to-Compel-Website-Closing.pdf

Kentucky Case Remanded for Trial Court Inquiry Into Facebook Relationship Between Jurors and Mother of Victim

Here is link to Kentucky Supreme Court decision remanding murder case for trial court inquiry into extent of relationship between 2 jurors and mother of victim as Facebook "friends."  The jurors stated in voir dire that they were not acquainted with the victim or her family, and did not use Facebook.

http://opinions.kycourts.net/sc/2011-SC-000318-MR.pdf

Mistrial After Lawyer Posts Underwear Photo on Facebook

A mistrial in a murder trial has resulted after defense counsel posted a photo of the Defendant's underwear on Facebook.  Counsel apparently felt the Defendant's family acted foolishly after providing  leopardskin-print undies for trial attire.  Posting for all to see, including jurors, resulted in a mistrial:

Link:  http://www.webpronews.com/lawyer-posts-photo-of-clients-underwear-on-facebook-quickly-leads-to-mistrial-2012-09

When Jurors Lie During Voir Dire: The High Standard to Overturn a Verdict

Here is a link to an article in Forbes from May 2012 which just so happens to have the same title as this blog and discusses the difficulty of overturning a verdict when it is discovered post-verdict that a juror had lied substantially during voir dire.

http://www.forbes.com/sites/insider/2012/05/02/jurors-behaving-badly/

Deliberating Juror Vacations in Cancun: Faces the Music on Return

Similar to the posting on May 25 and July 13 (juror goes on business trip), a juror during deliberations went on vacation, saying she left a note for other jurors with her vote.  My question: have these people lost their minds?

Link:  http://www.jsonline.com/news/crime/runaway-juror-ditches-service-for-cancun-0i6irg1-166983106.html

Mistrial in Murder Trial Where Canadian Juror Posts on an Anti-Defendant website

In this week of the Olympics we find that juror misconduct involving social media, just like the Olympic sports,  is not confined to the U.S.  The Canadian murder trial of Fred Prosser has resulted in a mistrial over a juror posting on an anti-Prosser Facebook site.
LINK:  http://www.cbc.ca/news/canada/new-brunswick/story/2012/07/18/nb-prosser-trial-929.html

Ohio Supreme Court Finds Trial Judge Acted With Haste in Ruling on Juror Misconduct During Deliberations and Ordering Mistrial

In a case with multiple defendants and a tortured route several times to the appellate courts, the Ohio Supreme Court ruled that the trial judge acted hastily in ordering a mistrial after briefly questioning a juror who brought to jury deliberations Internet research on the terms "perverse" and "involuntary manslaughter.  Convictions from a subsequent trial were reversed as double jeopardy was found.

LINK     "http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-3236.pdf

Retrial Results From Juror Bringing Extrinsic Evidence Into Deliberations

In a Washington wrongful death case, a juror told fellow jurors that families of soldiers killed in Afghanistan get $100,000 so no one else should get more.  The trial judge determined that this comment did not affect the verdict.  The appellate court reversed, discussing the objective standard which the trial judge should have used, ie. could the comments have affected the verdict.

http://www.courts.wa.gov/opinions/pdf/66743-2.unp.docx.pdf

Followup on May 25 post: Absentee Sitting Juror Fined

The federal juror (medical device salesman) who left mid-trial on a business trip to meet with a dissatisfied client in Iowa has been sanctioned and fined by a federal judge:


http://news.bostonherald.com/news/national/midwest/view/20120711juror_fined_1000_for_skipping_out_on_his_duty_in_middle_of_trial/srvc=home&position=recent