Thou Shall Not Tweet From Thy Jury Box

Congratulations everyone on making it through another semester. This is our last principal blog of the semester. As I am sure everyone is in the midst of traveling and suffering the sleepy effects of eating too much turkey, I will try and make sure this blog is not overly complicated or dense. This blog centers on the emergence of social media in the courtroom and the new issues this mobile and instant technology presents. As more jurors and attorneys are tweeting, blogging and updating their statuses, state legislatures and court are struggling to come up with appropriate rules to ensure the integrity of trials and the judicial process. Some states opt for community service, while others declare mistrials and have the option of sentencing a violating juror to six months in jail. This blog will discuss some of the recent examples of juror and attorney misconduct and the corresponding remedies the courts took. I then hope to promote some discussion on whether we think some of these remedies are fair or go too far.

In New York, the state has imposed fines on jurors who break the law and improperly use technology. In July of 2011, a juror was found guilty of contempt after he texted a friend about a trial he was sitting on.[1] Sadly for him, the friend was an assistant district attorney who reported it to the judge sitting on the case so as to avoid any impression of impropriety.[2] The judge had told jurors not to use technology to communicate with others about the case whatsoever.[3] In this specific case the juror texted his attorney friend while deliberations were taking place in an effort to keep him updated.[4] The man was fined $1,000, and perhaps more importantly, the case was declared a mistrial.[5] I feel the mistrial was the right decision. Even though the juror claimed he was just giving his buddy an update, the chances here for impropriety are so great that the court in the interest of justice could not take the chance.

In Texas, the courts have turned to community service as their deterrent of choice. In August of 2011, a Texas judge found a juror guilty of criminal contempt after he updated his Facebook with his thoughts on the trial he was sitting on.[6] But the misconduct did not end there. The juror actually friend requested the defendant on Facebook after being chosen for the trial.[7] The judge had instructed the juror that he was not to use the Internet to discuss the case.[8] Is friend requesting the defendant and posting your thoughts on a trial technically “discussing the case”? If no one commented back, does one-way communication truly count as breaking the judge’s instruction? At least community service is not too harsh of a sanction.

In California, the state legislature is getting tough on jurors who access the Internet. In August, the state legislature unanimously passed a law that requires judges to instruct jurors that if they access the Internet to do research or discuss the case with others they could be sentenced to six months in jail.[9] The sanctioned juror would be charged and convicted of criminal contempt of court.[10] The law is planned to go into effect in 2012.[11] At first this law upset me. I understand jury duty is our civic duty, but at every trial I have attended the attorneys and judge fall over themselves making sure the jury is happy, engaged, and enjoying their experience. I understand using a smartphone, Ipad, or computer to do research is wrong and compromises the integrity of the trial itself. Still, six months in jail seems excessive to me. You could have a juror who ends up spending more time in jail than the person they find guilty of a crime and that strikes me as unfair and wrong. But the more I look at it, the law is simply requiring judges to tell jurors they could go to jail. I would hope unless it is an egregious example of juror misconduct, no jail time would be given. This law does act as a stick though to hopefully scare jurors into following the law and demonstrates that courts are serious about jurors not accessing the Internet.

The question is not just how to sanction the violating the juror but what to do with the current trial when a juror uses the Internet. The Illinois Supreme Court is deciding how to rule on an appeal after it came to the courts attention that a juror kept a blog about her thoughts and feelings while sitting a civil trial that resulted in a $4.7 million dollar verdict.[12] The judge gave the jurors instructions not to communicate about the case.[13] After the verdict was rendered and the blog was discovered, the attorneys asked the court permission to interview the other jurors to see if they knew of the blog and whether it prejudiced their decisions.[14] This motion was denied.[15] It seems odd to me that the motion was denied. Perhaps the court wants to ask these questions itself. But if the other jurors did not read the blog, why should the verdict be overturned? There was no evidence that anyone contacted the juror during her trial. The blog was in essence an online-diary. I do not think a court would have problem with a diary, so if the other jurors did not know of the blogs existence, I personally do not see the problem of it. Of course, you readers are more than welcome to disagree with me.

 

In a different case in Arkansas, the Supreme Court is facing an appeal after it was discovered a juror tweeted four times during a trial that sentenced a man to death.[16] The judge instructed the jurors not to tweet but this man did anyway.[17] Specifically, two of his tweets were “This coffee sucks,” and discussing his hesitation to sentence someone to die.[18] The coffee tweet seems harmless enough but the second one presents problems if others @replied to him and he was swayed based on what people said.[19] The state attorney’s office has been arguing that the conviction and sentence should stand due to the limited number of tweets and that in their opinion the tweets were about the jurors feelings not the substance of the case.[20] Should the number of tweets even matter? Cannot one tweet be enough? Moreover, I understand the state’s argument but to me the feelings of a juror concerning the death penalty are extremely important and should not be ignored.

Jurors are not the only ones who are having problems staying off of social media sites. Everyone read the story of the prosecutor who wrote a Gilligan’s Island themed poem on his Facebook after his trial was over.[21] Although the article tried to chastise this attorney and make it seem like was a tragic act against the legal profession, I did not see too much of a problem with it. Calling defense counsel a “weasel face” probably is a slight violation of Rule 3.1 of professional conduct, but I have heard attorneys refer to other attorneys by much worse names than that. I also disagree with the article that this Facebook status update was a violation of confidentiality. From what I can tell the attorney gave no names of case specifics. There was no danger in anything he did and the fact the case was already over meant the trial was not effected in any way. As the attorneys is a state employee perhaps this was not the most professional action, but it appeared to be in good fun and punishing him for that could run afoul of the First Amendment.

One last humorous anecdote involved a question of ethics in New York. In New York, a question was presented to the New York Bar Association if lawyers could essentially give people a prize of money in return for them becoming their friend on Facebook.[22] The Bar Association decided that it depended on the reason for giving the prize.[23] If the reason was simply to gain friends, then it was allowed.[24] If the reason was to solicit business, then it was not allowed.[25] What other reason would an attorney have to “buy” Facebook friends than to solicit business? I am not sure how this could even be determined in order to be enforced.

Looking back at this blog, what do you guys think? Which deterrent do you think will be the most effective? I would think jail time would be the scariest and thus the most effective, but I in my opinion it is also the most unfair to the juror. What, if any, other steps should courts employ to stop jurors from accessing the Internet in relation to the case they are sitting on? Should they take away their computers or smartphones? Or should we just hope and assume jurors who actually came to court and obeyed their summons will also follow the law? What about attorneys? How careful should we be in our use of social media, and when are we actually crossing the line? Hope everyone had a great Thanksgiving and see you on Tuesday!


[1] Going Paperless, N.Y. Juror Fined for Texting From Deliberations, Access at: http://goingpaperlessblog.com/2011/07/04/n-y-juror-fined-for-texting-from-deliberations/.

[2] Id.

[3] Id.

[4] Christina Carrega, Judge to texter: ur so bu$ted. New York Post, Access at: http://www.nypost.com/p/news/local/queens/judge_to_texter_ur_so_bu_ted_TMV5Ebv43zF2TEoJlT0MlM#ixzz1R6V8ckJY.

[5] Id.

[6] Going Paperless, TX Juror Convicted of Contempt for Facebook Contact, Access at: http://goingpaperlessblog.com/2011/08/30/tx-juror-convicted-of-contempt-for-facebook-contact/.

[7] Id.

[8] Id.

[9] Going Paperless, New CA Law Authorizes 6-Mo in Jail for Jurors Who Tweet, Access at: http://goingpaperlessblog.com/2011/08/08/new-ca-law-authorizes-6-mo-in-jail-for-jurors-who-tweet/.

[10] Id.

[11] Id.

[12] Going Paperless, Illinois Supreme Ct. to Hear Blogging-Juror Appeal, Access at: http://goingpaperlessblog.com/2011/11/16/illinois-supreme-ct-to-hear-blogging-juro-appeal/.

[13] Id.

[14] Id.

[15] Id.

[16] Debra Cassens Weiss, New Trial Sought for Death over Juror’s Tweeting and Napping, ABA Journal, Access at: http://www.abajournal.com/news/article/new_trial_sought_for_death-row_inmate_over_jurors_tweeting_and_napping/.

[17] Id.

[18] Id.

[19] I personally do not use Twitter nor am I familiar with it. I would like to thank Loni Gibson for explaining it to me and how to @reply someone and what that even is.

[20] Id.

[21] Going Paperless, Just Sit Right Back and You’ll Hear a Tale…of a Lawyer and His Facebook Page, Access at: http://goingpaperlessblog.com/2010/04/25/just-sit-right-back-and-youll-hear-a-tale-of-a-lawyer-and-his-facebook-page/.

[22] Going Paperless, Ethics Opinion on Ways to “Win” Facebook Friends, Access at: http://goingpaperlessblog.com/2011/08/09/n-y-ethics-opinion-on-ways-to-win-facebook-friends/.

[23] Id.

[24] Id.

[25] Id.

~ by jramsey5213 on November 25, 2011.

10 Responses to “Thou Shall Not Tweet From Thy Jury Box”

  1. Excellent Post Jonathan, very clear analysis.
    The role of the jury is extremely fascinating to me. If I was ever facing the prospect of incarceration, I would much prefer judgment by a jury of my peers than by a group of judges. The process of jury decision-making is shrouded in a mystical discovery of the truth. There is an interest in keeping the jury experience private, and this week’s reading explores the implications of social media on the integrity of the legal system. First, I will comment on how juries have always had a certain degree of “interference” from the outside world. Next I will comment on how technology itself can limit the online activities of jury during their jury duty. Finally, I will comment on the role of individual law practices to establish professional policies on social media conduct.

    First, juries have always had a certain degree of interference from the outside world. Though jury members are instructed not to discuss a case in the outside world, there has always been some amount of information sharing. Maybe a juror goes home at night and discusses some aspect of a case with their spouse. Maybe a juror during a break seeks general guidance or opinion about a broad issue from a friend. An example from the reading is the jurors who talked to a bailiff during a smoke break. As members of a community, jurors are supposed to bring both their individual and their community experiences to the finding of fact. In the example of spouses, for example, there is an established special relationship between spouses where two individuals become one and jointly share information and make decisions.

    I am not saying that this is officially allowed, nor am I suggesting that every juror shares information or seeks guidance. I am merely pointing out that this happens, and that it often won’t interfere with the administration of justice. The example of the bailiff does raise more problematic issues, perhaps rising to the level of a mistrial. I think that it ultimately boils down to a case-by-case basis, however. Moreover, just because a juror is exposed to outside interference does not mean that the juror didn’t make up their own mind.

    I spent the last two years working as a security screener at the King County Courthouse in Seattle. We processed and average of 32,000 individuals a week, and every Monday was jury selection day. I can tell you first hand that every single one of those jurors was not arriving to the Courthouse with a swelling sense of pride in civic duty. However, the collection of the individuals with different backgrounds and knowledge impressed me with their transcendent power to decide the outcome of disputes and render verdicts in criminal matters.

    If jurors engage in social media activities during a trial, however, there can be problems. I agree that disciplinary action against a juror may be necessary. One solution is to restrict the technology itself. For example, cell phones and computers may be confiscated before a juror enters a courtroom. Additionally, courtrooms can limit cell phone service and wireless service within a courtroom, allowing only password protected access for attorneys and judges to perform online activity necessary for the case at hand.

    Any trial that covers multiple days and releases jurors at the end of the day, however, will have difficulty in restricting social media activity outside of the courtroom. I think that the judges ultimately have to earn the respect of the jury and properly instruct them on their responsibilities. If a judge can make a substantial impression on at least a few members of a jury, those jurors will hopefully maintain order with the rest of the jurors.

    Finally, individual law practices have a responsibility to establish professional policies on social media conduct. For example, when the Assistant State Attorney posted a poem on Facebook page at the end of a trial, the Supervisor stated that this was a “training moment.” Hopefully the Assistant State Attorney learned from the negative publicity. This particular case didn’t do much damage beyond making the attorney look foolish. I think that the profession will be able to police itself and adjust to standards of online conduct which maintain the distinguished history of the legal profession.

    In conclusion, the interference that social media has on a jury must be analyzed in relation to the general outside interference that jurors have always experienced. Next, judges should implement some technological measures to ensure that jurors don’t access the internet while in the courtroom. Finally, law practices must police their own as the legal profession adapts to the new requirements for professional conduct in a social media-connected world.

  2. My response consists of three points. The first point addresses whether the court should tackle jury tampering by electronic means, the second, a proposed courtroom policy and third, the necessity of additional rules for attorneys.
    In terms of jury tampering by electronic means, I agree with Gabriel that the jury is already coming in with their own biases and they have other influences whether it is a spouse or another person. However, the tweeting juror during the trial is a bit much. The court and the attorneys should try as much as possible to minimize the influence of the juror by others and one of the ways to do that is to limit the electronic influences whether those are tweeter followers or text message friends. This leads me to my next point. While reading the assignment, the blog and corresponding comment, I wondered why the court does not have a policy of confiscating all smart phones, iPads and other portable electronics before jurors enter the courtroom. There are a number of items that are prohibited from entering a courtroom such as guns, now add to the list, cell phones, iPads and other portable electronics. Jurors should be warned in their jury summons that the use of portable electronics is strictly prohibited in the courtroom and anyone bringing a prohibited item into the courtroom will be confiscated. Furthermore, the summons should also highlight that discussing an ongoing case even in jest is strictly prohibited and participation in jury service implies consent by the juror to these rules. Instead of imposing jail time of six months, a fine should be levied against the juror who violates the rule. Imposing a six-month jail sentence on a juror who is fulfilling their civic duty can have severe repercussions. The judge should have discretion to determine the amount of the fine based on the severity of the violation. If a juror were sentenced to a six months jail sentence, the juror would be out of a job leading to a snowball effect of possibly losing a house and medical benefits for the juror’s family. Furthermore, I agree with jramsey that jail time may impose a sentence on a juror than may be longer than the one served upon the person on trial in a criminal case.
    Lastly, there is no need for additional rules for attorneys regarding electronic discussion of ongoing cases. The model rules prohibit attorneys from discussing ongoing cases. Requiring employers to have an additionally set of rules to deal with Facebook postings and other disclosures of client information and court proceedings will not stop some attorneys and court employees from discussing an ongoing case with jurors or the general public. Unfortunately, I heard of a number of examples while working of attorneys and staff who were caught disclosing client information on a crowded train or during a conversation at a party. The attorneys or staff were usually reprimanded but not fired. Most recently, a judge was discussing the case with the legal assistant at a Halloween party. The legal assistant was so uncomfortable she did not know who to handle the situation. Again, the judge was aware of the implication, but he did not care. There is no point to more rules.
    In sum, the legal system should try to decrease the exposure of jurors to outside influences while they are completing their civic duty. One was to control this affect is to limit the use of portable electronic devices by jurors. Furthermore, jurors should be warned about discussing an ongoing case. Attorneys, on the other hand, do not need additional rules to let them know that discussing an ongoing trial whether in person or via internet is prohibited and in violation of the model rules.

  3. Great post, Jonathan. I think that the appropriate method for deterring jurors from using technology to communicate their ideas about the case is to prohibit them from bringing their phones, tablets, etc into the courtroom. The court could outline some exceptions, for instance emergencies, in which jurors could keep their phones. The appropriate sanction should be a fine or in extreme cases declaring a mistrial. In the July 2011 example, it didn’t seem like there was any real impropriety or that the justice system was compromised in some manner. However, it is easy to imagine situations in which juror communication could rise to such a level, which would require the judge to declare a mistrial. For the most part, fines or community service should be sufficient sanction and deterrent. People would certainly think twice before tweeting about the trial before them if they knew it would cost them a few thousand dollars.

    As far as attorneys are concerned, there is enough in the professional rules to punish and deter attorneys from engaging in inappropriate conduct. If the court desired to punish the Gilligan’s Island attorney, it should be able to find some support in the professional rules. As Jonathan pointed out though, the trial was not prejudiced in any way since the jury was finished deliberating when the attorney posted the comment. I do agree with the author of the article in that the attorney’s boss, Bakkedahl, seemed to trivialize the attorney’s conduct, which made it seem like the State Attorney office may condone the conduct on some level. At least, it was poor judgment on the part of the attorney and I imagine he heard from the Florida Bar. However, White’s Florida Bar profile indicates that he has not been disciplined in the last ten years (http://www.floridabar.org/names.nsf/0/D6B3A0FCA8E43113852573720068C213?OpenDocument).

    I think jail time is a little extreme, but it may be warranted in extreme circumstances. For instance, a juror who is looking up information while deliberating and sharing his research with the other jurors is inappropriately and deliberately influencing other jurors. The courts have advised jurors of prohibited conduct and such extreme disregard for the rules should result in a hefty punishment. However, I cannot imagine a scenario in which a court could justify six months jail time. Limiting jail time to a week seems more appropriate. As Jonathan pointed out, it would be appalling for a juror to receive more jail time than the defendant that the juror convicted.

  4. My seminar paper for this class is entitled “From Voir Dire to Verdict: The Effects of Social Media on Criminal Jury Trials,” and it discusses how prominent the use of social media is in the courtroom, now, and the problems that come along with that. Jon, you did a great job addressing the issues facing courts in regards to jurors using social media. Though current jury instructions instruct jurors not to discuss the case with anyone, and though the ABA has proposed jury instructions for the use of social media, it is still just really difficult for people to cut themselves off from social media. With Facebook now having some 750 millions users, and Twitter breaking a record of 10,000 tweets per second (when Steve Jobs died), it is clear that people are obsessed with social media.

    As mentioned in one of the readings (and addressed by several of the cases I researched for my paper), some jurors feel that social media postings are more of a “journal entry” than a communication. Despite their feelings, the fact of the matter is that social media postings are not journal entries, because they are posting for the world (or at least, the 700 friends who have access to their page) to see. One case I used in my paper is United States v. Fumo, in which a juror made several Facebook postings about the trial. A local television station, doing their due diligence in researching the case, found these postings and reported about them. The juror then immediately took the postings down, but the defendant moved for a mistrial, claiming that his Sixth Amendment right to a fair trial was violated. The Court held an in camera review, and determined that there was no prejudice to the defendant, and thus the juror’s postings were harmless.

    In regards to jurors using social media to connect with one another, this can have a substantial impact on the trial process. The danger inherent with jurors “friending” one another and communicating about the case outside of the deliberation room is that these relationships can influence the verdict and the effect the jurors have on one another. One of the questions typically asked during voir dire is whether or not any of the jurors know any of the other jurors, and if so, does that relationship affect their ability to be fair and impartial and make their own conclusions as to the evidence presented. Though jurors do form friendships during trial, particularly during lengthy trials, the communications the jurors have are limited to their time at the courthouse or involving activities related to the trial. If jurors, who previously did not know one another, are now forming relationships via social media in the middle of trial, this could have an effect on their ability to think independently, and could disrupt the efforts of the attorneys in creating an impartial jury to sit for the case.

    For judges, jurors, lawyers, and parties in a case, social media is posing new and challenging issues in the courtroom. Because the medium of social media is so fluid and changes instantaneously, it seems that courts are largely left to handle these matters as they come up, without the help of established precedent. It is for this reason that it is vital that attorneys and judges educate themselves on social media issues.

  5. This blog post was fascinating because it presents issues courts face with social media in the courtroom in and out of the jury box. For jurors, problems arising with the use of social media are probably best dealt with over regulation. For attorneys, whom have years of schooling and are bound to rules of conduct, the solution is probably heavy sanctions.

    To comment on the issue of jurors violating rules, I must say it has to be difficult to serve as a juror with nothing to do. I was summoned for jury duty this past summer and I was extremely excited until I had to sit for hours in a room playing the same corny movie again and again. My iPhone was my lifeline! Granted this is all prior to trial, but they don’t really do much to keep you positive of the opportunity to serve. Once the trial starts, a juror owes the defendant his undivided attention and it is problematic for someone to be busy making posts online. I think a distinction has to be made as far as the purpose of using social media. It’s one thing for a juror to be doing research online versus a juror making the equivalent of a diary. A juror doing research, to me, is more problematic because they are making decisions outside of what they should be. It eliminates many controls emplaced in the courtroom. Attorneys could simply drop hints for jurors to do research that would persuade them to rule in their favor. The purpose of the rules of evidence would be diminished in this case. On the other hand, “virtual diaries” don’t really alter their decision-making nor do they rely on things not subject to the rules of evidence. As long as they are not having online debates or breaking any sort of confidentiality rules, I don’t see the problem with this.

    As far as what is a fair way of punishing jurors who violate rules, I’m torn. Like many of us, I think I make a better critique than inventor. The biggest variable determining the level of sanction is the seriousness of the trail. A juror not abiding by the rules they are subject to in a death penalty case should be far more serious than one in a simple theft case. In a non-death penalty case, a $1,000 fine may be too harsh. As it is, jurors already have to give up going to work and possibly missing out on pay. A fine may be counterproductive to promoting civic duty and make people want to serve even less. Jail time? Maybe, but only if the violation is extreme. Jail time would probably best be suited for a juror doing research and gossiping on Facebook during a murder case. I think supervised community service would probably work the best to deter jurors without being overly unfair. When I say supervised community I mean some sort of community service the court authorizes prior to it’s completion so that people aren’t making up hours.

    Taking away phones may be too drastic. Although defendants deserve the undivided attention of a juror, people need to take care of business. If they’re not on their phones or electronic devices during the trial/in the court, I don’t have a problem. People today rely more on technology than in the past. Allowing access to these devices makes jury duty more amenable for the white collar professional who still has a civic duty to serve but can continue working from his phone. You also have the mother or father who needs to make sure their children’s needs are being attended to back home.

    When it comes to attorneys tweeting, the distinction I think needs to be made is that of prosecutor versus private counsel. A prosecutor serves in a public capacity. They are not free to do what they want and represent the people of their jurisdiction. I don’t think there’s an issue with free speech by controlling what the prosecutor can say as the articles allude to. I felt it was kind of rude for the prosecutor to call private counsel a weasel and to hint that jurors don’t know what they are doing. If I was a juror and found out the prosecutor or his assistant was sitting at the table telling others I didn’t know what I was doing/was “confused” I would be extremely upset and probably go against him on principle. If a private attorney wants to tweet his opinions, I don’t have a problem with that because he’s not being paid by my tax dollars nor does he represent my interests (assuming I’m not the defendant).

    When I read the anecdote of attorneys adding people on Facebook I couldn’t help but think of student government during elections here at UF. Receiving text messages, Facebook messages, etc was beyond annoying and to have attorneys adding me on Facebook would probably upset me even more. I think this will emerge into a bigger issue with the Model Rules of Professional conduct. Seems like the ABA or local bars will simply need to adjust to emerging technological issues or simply issue some sort of rulings in related to Rule 7.3 (“A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain…”).

    To not make this post overly long I’ll just address the last issue that bothered me briefly. The prosecutors who did not turn over exculpatory evidence in Casey Anthony case is extremely egregious and worse than making a poem on Facebook. They should be disciplined a lot more harsher than the Gilligan fan. Regardless of what I think about Casey Anthony’s guilt, she deserves a fair trial. On a side note, this would have made great reading right before or after the MPRE.

  6. Let’s face it, most people do not actively *like* jury duty. But for those people that are too bored not to pull out their phone, too inconsiderate not to break the rules laid down before them, what if the shoe was on the other foot? What if the juror who can’t seem to pay attention was on trial? Would they want details of their case and personal life posted to Twitter or Facebook? Let alone that, but just the issue of not paying attention is bad enough without having personal details plastered all over the internet.

    I think the severity of penalties should be much closer to “too high” than “too low” to serve as a proper deterrent. I think that jail time, fines, and community service, or some combination thereof, are definitely appropriate. As mentioned in the post, jury duty is just part of being a citizen in this country, and it should be treated with proper respect. I know that I would much rather give up my cell phone for a few hours (or even days) than spend time in jail, pay $1000, or perform community service. I can’t speak for others, but I would imagine that “they”, as a whole, feel similarly.

    It is somewhat of a sad state of affairs that courts have to impose penalties to keep people off of their cell phones, but I know that my respect for the legal system is heightened due to being in law school, which obviously most jurors are not enrolled in. Having never served on a jury, I would hope that there is some type of educational video or speech that jurors receive to explain the importance of paying attention and doing a good job. I know most people are inherently good citizens, but I think making the argument of “what if you were the defendant?” is a strong one that would illustrate the importance of being engaged.

    Overall, I would say that basically any penalty is fair, short of being unconstitutional. By declaring a mistrial or having an outcome that differs from what probably should have happened, there are huge wastes of time and money occurring. The legal system is already bogged down enough that a Twitter-induced mistrial is simply unacceptable.

  7. Jon. I agree. The thought of putting a juror in jail for tweeting seems a little much. We don’t want to chill people from their civic duty. On the other hand, I’m not sure that I find tweets and postings of case material either by jurors or attorneys after a case to bee so harmless. For one thing, how will we know which communications are harmless and which led to communications swaying a juror- on an issue like the one you presented with the death penalty? Because it is impracticable for our legal system to monitor tweets from jurors to determine which ones cause harm and which ones don’t, it make the most sense to ban Tweets outright. If a juror violates a judge’s order against texting, tweeting, etc. community service seems like the right kind of punishment.

    I suppose this has been tried, it seems so obvious, but can’t we just collect electronics from the juror before they enter the court room?

    The danger with allowing jurors to access the internet from their phones, while in the jury box, is that they will use it to research the legal questions and facts of the case. But jurors might not understand the rules of evidence, or prohibitions against hearsay, etc. and may consider outside information that is not appropriate in the case. This takes away the power to the judge to conduct a fair trial.This may also degrade a criminal defendants constitutional rights to a fair trial.

    Another danger in allowing texting from the juror box, is that technology is changing so quickly. If a juror can Tweet, can they take a video? Can they make an audio recording of trial? Jurors will have more opportunity to bring in smaller and more sophisticated technology in the future. If used by the court, that technology can help to make the justice system stronger, but the jury must continue to play a passive role, and be the judges of only the information presented to them.

  8. Jurors can and do go to jail for contempt of court. In fact, if you are held in civil contempt, e.g. you refuse to talk to the grand jury, you can be held for up to 18 – 24 months. The deprivation of some one’s liberty is extremely serious. Jurors take oaths to follow the court’s instructions. When they refuse to follow instructions regarding tweeting and blogging, to me, that is serious misconduct.

    As for the lawyers, as you know, we are also prohibited from engaging in conduct that has the “appearance of impropriety,” not just conduct that actually is inappropriate. All lawyers, especially prosecutors, should be extremely cautious before making light of a client, adversary, judge or a serious legal matter. …Just my two cents. Great job everyone. Thanks so much for all of your cooperation this semester.

  9. I’m not 100% certain of what I believe for this particular issue. I understand the seriousness of jury behavior and professionalism during a trial, but at the same time, I don’t think there can be one brightline rule to punish jury misconduct. There is obviously a difference between a juror texting his friend and asking for advice in how to decide the case compared to a juror who commentates on the trial to a minimal degree, the facts to which she describes are likely available to the public or announced via the media. I can’t see jailing a juror for the latter conduct; it just doesn’t seem fair or just.

    In today’s day and age, the digital media has consumed our lives and our means of communication. Unfortunately, this also means that during a lull in a conversation, a commercial during a tv show, and even the deliberations of a jury panel, it’s become popular (and the norm) to whip out the good ‘ol cell phone and pull up the internet to “kill time”. Jon definitely points out the pressing nature of this situation and when handled inappropriately, technology can cause serious problems in the courtroom. I firmly agree with this, but I do not feel that harsh punishments like 6 months of jail time or $2000+ fines serve as a deterrent, are efficient, or even practical.

    Unlike attorneys who must abide by the rules of confidentiality and privilege, jurors have a different code to follow. Although jurors are sworn in and ordered not to watch the news, pay attention to the trial coverage, talk to friends and family about the trial, or use social media to convey thoughts and feelings, it’s impossible to completely avoid this interference. Yes, you could go home, sit in the corner, keep the tv and radio off, and turn your phone off, but really… is this what our world’s come to? I have never been called for jury duty (with the exception of when I served as a mock juror during 1L year for the final trials of the Trial Practice course), but I have watched numerous jury selections and witness a number of jury trials. The use of technology and social media is minimally emphasized. I think this is in part because as a society we hope (and pray) that jurors will abide by the rules of the court and the order imposed by the judge not to interact with others or discuss the case outside of the courtroom.

    Personally, I think taking away jurors phones at the outset of the trial, and more consistent (and persistent) reminders of the prohibition of the use of social media and everyday conversation regarding the trial would facilitate maintaining jurors’ good behavior. In addition, awarding community service or a small fine for majority of misbehaving jurors would seem to serve as retributive justice; anything more than this seems problematic. Now, I say this conditionally. A juror who tweets, texts, or IM’s confidential information or is unethically influenced by someone outside of the courtroom attendants should be rewarded with a greater punishment. The punishment should fit the crime. This is a difficult issue we are facing today more than ever but I strongly believe that an implementation of a brightline rule is not the route to take to alleviate this problem.

  10. Thanks for this nice information. I really appreciate your work, keep it up.

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