New California Law Prohibits Jurors' Use of Social Media

Effective January 1, 2012, California jurors who violate a judge's instructions not to use social media or conduct research about the case may be punished with contempt of court, a misdemeanor.  This legislation was passed after several mistrials or near-mistrials occurred over the past several years when jurors have blogged or conducted research or otherwise used social media during trials.  (see my prior posts, below) Former Gov. Schwarzenegger had vetoed prior attempts at such legislation.  See story at http://www.citmedialaw.org/blog/2011/new-california-law-prohibits-jurors-social-media-use
including a link to the new statute, 2011 Cal. Laws chap.181.

In California it appears that these jury instructions are mandated by statute, not court rule.  Section 1122 of the Penal Code states "(a)...The instructions shall include, among other things, all of the following admonitions...(1)...The court shall clearly explain, as part of the admonishment, that the prohibition on conversation, research, and dissemination of information applies to all forms of electronic and wireless communication." 

Texas also recently amended its jury instructions to mandate admonitions against jurors using Facebook or Twitter during trial. (TRCP 226A)

Jurors' Pledge: "I solemnly swear not to do research on the internet...": Judge considers exacting written pledge

The NY Times reported on September 18 that Federal Judge Shira Scheindlin is considering asking jurors to sign a written pledge that they would not do any research on the Internet during the trial. http://www.nytimes.com/2011/09/19/nyregion   (then search "juror pledge")

Prof. Stephen Gillers of NYU Law School was quoted as stating,"Judge Scheindlin apparently believes that the affirmative act of actually signing a specific pledge may more dramatically impress jurors with their duty and increase the likelihood of obedience.  I think she's correct.  It can help and certainly can't hurt."

I have read elsewhere that such admonitions may encourage some jurors to seek out the "forbidden fruit."
It's a tough call.

Judges' Responses to Juror Misconduct Vary Widely: From No Consequence to 8 Months in Jail

Opinions can vary widely among judges and lawyers as to the appropriate response or sanctions (beyond mistrial) to a juror's misconduct.  Here is a sampling of responses:

1.  State v. Christian et al. in California.  The judge instructed the jurors under CALCRIM 101 that they were not to share information about the case on the Internet.  A juror posted comments on Facebook during trial.  Counsel sought access to the postings.  The issue arose whether Facebook was prohibited from disclosing the contents of the postings under the Electronic Communications Act (Title 18 USC sec. 2701).  The judge ordered the juror to execute a written consent to access to the postings for in camera review.  (Reported in Forbes magazine)

2.  In September 2010 a Detroit judge discovered a juror had been commenting on Facebook during deliberations, "it'll be fun to tell the defendant they're guilty."  The juror was ordered to pay a $250 fine and write a 5-page essay on the right to a fair trial under the 6th Amendment. (reported in the Huffington Post 9-2-2010) (also ABA Journal)

3.  FTA: Failing to Appear for jury duty is resulting in fines and arrest warrants for those jurors who fail to appear after issued an order to show cause for failing to respond to a jury summons.  Wayne County Chief Judge Timothy Kenny warned jurors of fines and threatened jail time if they failed to appear a second time for jury duty. (Reported in The Detroit News 8-17-11)

4.  In Arlington, TX, a juror in a civil trial sent a Facebook friend request to the defendant, who promptly contacted her lawyer, who then informed the judge.  Consequence?  Four counts of contempt of court and 2 days of community service. (Reported http://www.jetlaw.org/?p=7896)

5.  Most severe punishment found so far:  A multimillion-pound drug trial ended in a mistrial when a juror contacted the defendant on Facebook.  The juror was found in contempt of court and  has been sentenced to 8 months in prison. (reported 6-16-11 in the Guardian in the UK)

6. See Posting dated October 4, 2011- no finding of contempt

JURY SELECTION: VOIR DIRE QUESTIONS REGARDING PROHIBITION ON INTERNET USE

Anoka County (MN) District Court Judge Alan Pendleton provided me with these voir dire questions regarding the prohibition on Internet research and misuse of social media during trial:

1.  How many of you own a mobile electronic device such as a Blackberry or iPhone?

2.  How many of you have access to the Internet at home or elsewhere?

3.  How many of you regularly access social network sites such as Facebook or Twitter or MySpace?

4.  During this trial you will be strictly prohibited from conducting any type of Internet research on the parties, attorneys or issues involved in the case.  You will be prohibited from posting information about the trial on social network sites such as Facebook, Twitter and MySpace.  You will also be prohibited from bringing any electronic devices into the jury room during your deliberations.  Any violation of that prohibition would jeopardize the entire trial; it could result in a mistrial and the parties would have to start all over with a new jury.

5.  Is there anyone here that would not be willing or able to respect and comply with that prohibition?

Sample instructions from the American College of Trial Lawyers (see post regarding "Links to Helpful Resources" below) are more detailed and include the following:

        Reference to Smartphones, PDA's;  LinkedIn.

        You may not do any personal investigation, including visiting any of the places involved in this    case, using Internet maps or Google Earth, talking to any possible witnesses, or creating your own demonstrations or reenactment of the events which are the subject of this case.

QUERY:  Are threats of contempt counter-productive and simply inviting the anti-government juror to violate the court's instructions?  Your comments are appreciated.

Judge's Challenge:     Our challenge is to remain current in our admonitions and include as many devices (tablets) and search engines (Yahoo, Bing) and social media (You Tube, Twitter) as possible.                

Juror DIsmissed for Talking to Prosecution Witness During a Break

It is reported in the Twin Cities newspapers that on September 13 a juror in a Hennepin County (MN)murder trial has been dismissed for speaking to a prosecution witness in the hallway outside the courtroom during a break.  Judge Cahill is reported to have given a stern warning (threat of contempt and jail) to members of the audience, both in English and in Somali via an interpreter, that they must not speak to wittnesses.

In May 2011 during the infamous Casey Anthony murder trial a prospective juror was fined $450 during jury selection for talking to a reporter despite having been instructed not to talk to anyone about the case.  After being fined he said, "Well, at least I got out of jury duty."

Motivations for Juror Misconduct

Social scientitsts have begun to comment on what motivates jurors to do Internet research, blog or "tweet during trial.  Most jurors "want to get it right." They have become accustomed to:
  
   A.   Having instant access to any information they want from a search engine like Google;
   B.  Obtaining this information without a middleman, such as a travel agent or salesperson;
   C.  Discussing every detail of their lives and the lives of others on social media sites such as Facebook.

Jurors also are subject to the effects of "reactive theory," that is, that they covet (want) the information the judge and lawyers tell them they cannot have, ie. the forbidden fruit.   Some jurors may be offended that the judges and lawyers, who they perceive are in an exclusive Club, are "spoon-feeding" them information only as allowed under their rules of evidence.   Jurors may think everything on the Internet should be accessible because "it must be true...it's on the Internet!"

How do judges deal with this phenomenon?  Explain...explain...and explain some more.   Judges should not just tell the jurors that these are the rules because I say so!   Judges should explain that the rules have developed over several centuries and are meant to insure that all parties involved have a fair trial.

Links to Helpful Resources

Judge Donald Shelton's Instructions:  http://www.ncsc.org/topics/jury/jury-selection-trial-and-deliberations/resource-guide.aspx


"Sequestration for the Twenty-first Century: Disconnecting Jurors from the Internet During Trial", 59 Drake L. Rev. 621, Spring 2011

"Can the Jury Trial Survive Google?", Criminal Justice (An ABA journal)  Winter 2011

"Social Media and Jurors," Maryland Bar Journal, November 2010, by Judge Dennis Sweeney; see also his blog at:  http://jurytrialsandsocialnetworks.wordpress.com/

"Jury Instructions Cautioning Against Use of Internet and Social Networking, " American College of Trial Lawyers, September 2010

"A Practical Framework for Preventing 'Mistrial by Twitter,'"  28 Cardozo Arts & Entertainment L.J. (2010-11)

"The Wired Juror, Unplugged,"  TRIAL, November 2010, bu Susan MacPherson & Beth Bonora.

Launching a New Blog on Misbehaving Jurors & Social Media

The collision of the information age and social media with traditional litigation rules has resulted in a significant increase in juror misbehavior, including in deliberations, resulting in mistrials and a waste of precious judicial resources.  Only recently have social scientists published studies which attempt to both describe and explain this juror behavior.  My goal is to provide links to resources available to judges and lawyers dealing with these issues, including sample jury instructions and voir dire questions.  My hope is that judges and lawyers will share their experiences so that we can learn from each other, minimize juror misconduct, promote juror education, and pursue the assurance of fair trials to all citizens.