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.
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 New York city fortuneteller is attempting to use an undisclosed jury note as grounds to overturn her conviction of grand larceny and fraud. Apparently, the jury in the fortuneteller's case sent the judge a note containing the following message:
“We have come to a verdict on some charges but are hung on a few other charges"
This note, unlike the other 9, was never read into the record or submitted to the attorneys handling the case. Approximately one hour after the note was sent, the jury sent the 10th and final note which informed the judge that the jury had reached a verdict. Counsel for the convicted defendant, who was sentenced to 5-15 years incarceration, claims that the outcome might have been different had the judge addressed the note. For example, the defense attorney argues that a holdout juror might have been pressured to cave after the court failed to take action on the note.
There is precedent in New York to grant a new trial for failing to disclose a note from the jury. To read prior posts about juror notes and questions go here.
The article below highlights the challenges of keeping jurors sitting on a high profile trial away from outside information about the case. Here, one of the jurors was informed by her husband that a prosecutor in the trial had sent a tweet about the case. This particular juror was dismissed as were two others who socialized with this juror.
This leaves the court with 21 available jurors. Due to the nature of the case, the judge decided to have 12 alternates. At this stage, the 21 jurors do not know which ones will actually decide the case and which ones will be alternates.
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.
It is uncommon for judges to punish a juror. It is really uncommon for judges to punish a juror for talking to the media. It is really, really uncommon for judges to punish a juror for talking to the media after that juror has already been dismissed from the case. However, it does happen as evidenced by the prosecution Marla Lloyd.
Lloyd was a juror in the death penalty trial of Shaw Ford. However, she was dismissed from the case prior to the jury reaching a verdict. Sometime after the verdict but before sentencing Lloyd spoke to the media about the case. Her actions, according to the prosecution, violated the judge's gag order for all jurors. As a result, she is now being prosecuted for contempt of court.
Loyd's prosecution is troubling for a variety of reasons. First, what is the purpose of her prosecution? Put differently, what does the prosecution or judge hope to obtain with a conviction? Second, why isn't this prosecution an infringement on Loyd's 1st Amendment rights? Third, how far can a judge go in restricting others from discussing things that occur in a courtroom? Could a judge tell jurors or prospective jurors that they may never talk about the case? It appears to me that once Lloyd was released from jury duty, the judge no longer had jurisdiction or authority to regulate what she said.