This Essay analyzes criminalization as an alternative solution to juror misconduct arising from social media use, where jury instructions fail to prevent such misconduct. Despite the lack of scholarship on the subject, criminalization is far from a radical solution California enacted legislation in 2011that sought to criminalize jurors’ improper use of social media. By criminalizing juror misconduct, states can deter misconduct from occurring while also instilling the importance of the jury institution in the public. At the same time, it is important to be cognizant of objections that judges and jurors may raise. This Essay proceeds in three parts. Part I outlines persistent problems that arise from the use of social media as well as several deficiencies of jury instructions. Part II lays out California’s legislative approach, where juror misconduct arising from social media use may be punished as a misdemeanor. Finally, Part III analyzes benefits that arise from criminalization as well as several anticipated objections to the approach.
Judge Issues Unique Order Related to Using the Internet to Research Jurors: Oracle v. Google.
Here is a link to the Judge's order. I excerpted the significant portions below. It appears that the judge is giving the parties a choice between either foregoing juror research or explaining to jurors just how they will conduct their research. Apparently, the judge wants to put jurors on notice that the attorneys in the case plan to investigate them online. I think most jurors at this point already know that they will be researched. It has been common practice for employers, colleges and landlords to conduct such research so why would court be any different. However, even with that said, I think putting jurors on notice is a good thing. Among other things, giving jurors this information may reduce instances of misconduct during trial because jurors now know that they are being watched.
To read prior posts about the Oracle v. Google case as it relates to juror research go here.
In the absence of complete agreement on a ban, the following procedure will be used. At the outset of jury selection, each side shall inform the venire of the specific extent to which it (including jury consultants, clients, and other agents) will use Internet searches to investigate and to monitor jurors, including specifically searches on Facebook, LinkedIn, Twitter, and so on, including the extent to which they will log onto their own social media accounts to conduct searches and the extent to which they will perform ongoing searches while the trial is underway.
Counsel shall not explain away their searches on the ground that the other side will do it, so they have to do it too. Nor may counsel intimate to the venire that the Court has allowed such searches and thereby leave the false impression that the judge approves of the intrusion. Counsel may simply explain that they feel obliged to their clients to consider all information available to the public about candidates to serve as jurors. Otherwise, counsel must stick to disclosing the full extent to which they will conduct searches on jurors. By this disclosure, the venire will be informed that the trial teams will soon learn their names and places of residence and will soon discover and review their social media profiles and postings, depending on the social media privacy settings in place. The venire persons will then be given a few minutes to use their mobile devices to adjust their privacy settings, if they wish. The venire persons will also be given the normal admonition that they cannot do any research about the case, the parties, or the lawyers and that they cannot speak to anyone about the case, including by making any social media postings about it. Only the names and places of residence of those called forward to the box shall be provided to counsel (so the identities of venire persons still in the gallery will remain private)
For the past few years, I have come across numerous reform measures to address the issue of jurors violating the judge’s instructions on using the Internet. The solutions put forth run the gamut from penalizing and investigating jurors to allowing questions by jurors. It is rare for me to come across any new proposals. However, I recently did in an article by Joel Cohen entitled Helping Juries to Better Reach Untainted Verdicts. In that article, Cohen, a criminal defense attorney, suggests requiring jurors “to be sworn and briefly asked a few questions each day…[to get] jurors - to more effectively appreciate the oath taken by trial witnesses.” According to Cohen,
“a personalized question and answer session under oath might well have an impact on jurors; perhaps when a juror knows form the outset that every day of the trial he or she will have a mirror held up to them, the path of least resistance will likely be to, in fact, adhere to the obligations of good citizenship that the daily oath demands."
While I am not sure about the practicality of Cohen’s proposal, I am glad to see that people are still trying to address the challenges of getting jurors to adhere to the court’s instructions on use and misuse of the Internet.
A judge recently held that a juror's inappropriate tweets during trial were not sufficient grounds to overturn a defendant's criminal conviction for murder. The key point for the judge is that the juror did not tweet about facts in the case. However, the juror did tweet from the jury box and send tweets such as:
In my book, everybody’s guilty until proven innocent.
It will be interesting to see whether this ruling will be upheld on appeal.
A Memphis juror was sentenced to 10 days in jail (9 days were suspended) for communicating with a criminal defendant via Facebook. Interestingly, despite the social media interaction, the juror along with the other members of the jury still found the defendant guilty of aggravated robbery. To read more about this case go here.
Apparently, there has been some follow up investigation on the Darnell Dockett jury story. As some will recall, media outlets were reporting earlier this week about Dockett's so-called live tweeting from the jury room. I also did a post on it.
However, there is some question about whether his tweets were entirely true. According to the article below, Docket did not have jury duty in either Maricopa County, AZ or Miami-Dade County, FL. Also, the picture he allegedly tweeted from the courthouse has been traced to an earlier 2013 photo from Skagit County, WA. If you look closely, you can see the Washington state flag in the background.
Two attorneys from the firm of Heidell, Pittoni, Murphy & Bach have written a very good article on jurors and social media. Among other things, the article provides an excellent overview of the current state of the law.