A news outlet in Nashville is reporting that a juror allegedly friended and communicated with a criminal defendant during trial. Unfortunately for the defendant, being a Facebook Friend with the juror did not prevent the jury from finding him guilty of aggravated robbery. At present, the juror's actions are under investigation.
This is not the first time that a juror has been accused of using social media to contact parties in a case to include the defendant. In Britain, a juror was sentenced to 8 months in jail for this type of misconduct.
3 years ago California was one of the first states in the country to pass legislation making it a criminal offense for a sitting juror to go online and either research the case or talk about it with others. This week Gov. Jerry Brown signed AB2683 repealing the law.
Read more here: http://www.sacbee.com/2014/07/08/6542119/law-criminalizing-juror-electronic.html#storylink=cpy
Apparently, the California Judicial Council was concerned that the new law would inhibit judicial investigations of alleged juror misconduct. Although the judicial council could not cite to any cases where this has occurred, some members of the council believe that jurors might invoke their 5th Amendment right to silence rather than talk about any potential misconduct that they could be prosecuted for.
Members of the judicial council believe that a better approach would be to repeal the current law which still leaves the court the option of punishing jurors with civil contempt. And, unlike the current law, the judge, not the prosecutor, can immunize a juror from civil contempt.
To read the report and recommendations by the judicial council go here.
John Browning, a litigation attorney with a large firm in Dallas and prolific author on social media law, has written a very persuasive article in the Connecticut Law Tribune in which he extolls the importance of researching jurors online. For those who need to be convinced about the value of online juror research, I highly recommend Browning's opinion piece entitled Researching Jurors On the Internet is Not Just Permissible, But Necessary. Browning's article was written in direct response to an earlier op-ed by the paper which criticized the practice of researching jurors.
Browining's piece like most of his other work is well written and hits the key points regarding researching jurors. The one thing that I would add is that most of today's jurors would not be surprised by the fact that attorneys investigate them online. This is because the practice has become so widespread in society. It seems that everyone from jurors to employers to landlords to insurance companies to police officers goes on social media to discover information about other people.
In U.S. v Ganias, defendant-appellant Stavros M. Ganias appealed from a judgment convicting him of tax evasion. Ganias challenged his conviction on two grounds. First, he argued that his Fourth Amendment rights were violated when the Government copied three of his computer hard drives pursuant to a search warrant and then retained files beyond the scope of the warrant for more than two-and-a-half years. Next, he argued that his right to a fair trial was violated when, during the trial, a juror posted comments about the case on his Facebook page and “friended” another juror. The 2nd Circuit Court of Appeals rejected the defendant's second argument but found that the first argument had merit and thus vacated the defendant's conviction. In rejecting the second argument the court wrote the following:
A juror who “friends” his fellow jurors on Facebook, or who posts comments about the trial on Facebook, may, in certain circumstances, threaten a defendant's Sixth Amendment right to an impartial jury. Those circumstances, however, are not present here. The district court inquired into the matter and credited Juror X's testimony that he deliberated impartially and in good faith. The district judge's credibility determination was not clearly erroneous, and thus she did not abuse her discretion in denying the motion for a new trial.
The court of appeals then went on to recommend that trial judges provide more specific instructions to jurors to prevent similar behavior in the future.
I know that many of you use cell phones, Blackberries, the internet and other tools of technology. You also must not talk to anyone about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, My Space, LinkedIn, and YouTube...
During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, or any internet service, or any text or instant messaging service; or any internet chat room, blog, or website, such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.
Despite assurances from both state and federal courts, stories continue to surface about jurors using the Internet to improperly research and discuss cases. Like I have said before, this is a growing problem that requires a multi-prong solution (1) punishment; (2) oversight; (3) and education (to read more about proposed solutions go here). However, the first step is to acknowledge that a problem exists and to determine the reasons "why" jurors ignore the rules regarding using the Internet.
The ABA has recently issued a new ethics opinion (Lawyers Reviewing Jurors' Internet Presence) on lawyers using the Internet to research jurors. The opinion offers no real surprises. It is ethical for attorneys to use the Internet to research jurors so long as they don't contact jurors to include friending them on social media. Several jurisdictions have already reached this conclusion. I am still waiting for the opinion which holds that attorney research of jurors is now part of professional competence.
What I did find noteworthy is where the opinion diverges from other jurisdictions. The New York City Bar has previously held that if a social media provider like Twitter contacted the juror rather than the lawyer this still was an ethics violation. For example, the attorney subscribes to the juror's tweet and Twitter generates an automated message alerting the juror that she is now being followed by that attorney. The NY City Bar says this might be an ethical violation while the ABA says that it is not because
[t]he lawyer is not communicating with the juror; the ESM service is communicating with the juror based on a technical feature of the ESM. This is akin to a neighbor’s recognizing a lawyer’s car driving down the juror’s street and telling the juror that the lawyer had been seen driving down the street.
Discussion by the trial judge of the likely practice of trial lawyers reviewing juror ESM during the jury orientation process will dispel any juror misperception that a lawyer is acting improperly merely by viewing what the juror has revealed to all others on the same network.
I think NY got it wrong and the ABA got it right.
Another interesting topic raised in the opinion concerns turning over the information discovered about jurors. The rule is fairly clear when the information is criminal or fraudulent. The attorney must turn it over. However, as noted by the opinion, the rules regarding information falling outside of those two areas is "muddled." (It should be noted that certain jurisdictions provide more guidance in this area than the Model ABA Rules.) In an effort to add some clarity to this area of law, I have previously suggested in a law review article (Investigating Jurors in the Digital Age: One Click at a Time) that the courts or the bar should either either update the ethical rules or make information about jurors subject to the rules of discovery.
A story out of Allentown, PA provides just one more example of social media's impact on jurors. Here, a witness in the Amanda Hein first-degree murder trial was apparently lovestruck by one of the jurors so much so that he attempted to contact the juror through social media. The witness posted the following ad on Craigslist Missed Connections:
you were a juror in the allentown baby killing case - m4w (Easton)
You...blonde juror 2nd row in the Amanda Catherine Hein case Me...testified first thing Wednesday morning about an online/phone relationship with Amanda You...smiling at me Me...making eye contact and trying not to make it obvious I was smiling back
Hope you get done soon
hope to hear from you
do NOT contact me with unsolicited services or offers
The court learned about the ad on Wednesday and the jury returned its guilty verdict on Thursday. Fortunately for the prosecution, it appears that the juror in question was unaware of the ad. Thus, it is highly unlikely that the actions of the witness could lead to a mistrial or new trial for the defendant.
However, this case illustrates why judges must educate everyone in the courtroom to include witnesses about what they can and cannot do on social media. The actual Craigslist posting can still be accessed online.
California has become the first state in the country to introduce legislation to safeguard a juror's social media username and password. California bill (A.B. 2070) prohibits a court from requiring or requesting a juror or prospective juror to disclose a username or password for the purpose of accessing personal social media or requiring the juror or prospective juror to access personal social media in the presence of the judge, counsel for either party, or any other officer of the court.
AB 2070 introduced earlier this year by State Representative Nora Campos is most likely in response to recent efforts by attorneys to gain greater access to the social media accounts of jurors. As some may recall, the attorneys representing Jodi Arias filed a motion, which was denied, to obtain the Twitter handles of prospective jurors. Also, two years ago, a California Appellate Court in Juror #1 v. Superior Court directed a juror to make his Facebook account available to the court.
Here is an interesting article about a juror whose online research led to a new trial for the criminal defendant. I like this article because it illustrates some very important points. Juror research is not relegated to just Digital Natives. The juror in this case was in his sixties.
The article also talks about why this particular juror conducted research. Many times people gloss over the "why." When courts better understand the "why" then they can truly address the problem of internet based juror misconduct. In this particular case, the juror, when asked why he conducted the research, stated that he "fell into work habits.” Apparently, this juror's job requires him to spend a lot of time researching products online. Finally, I like this article because it highlights the human toll a new trial takes on all the participants, especially cases like this which involve sexual assault.