The impact of social media on the legal system is one of my favorite topics. Last week I was in Pittsburgh and Philadelphia to present a CLE on the topic and I recently completed two separate law review articles on the subject. The first article was the ethical issues arising from lawyers’ use of and refusal to use social media, including social-networking sites like Facebook and LinkedIn. The second article was devoted to the issue of social media’s impact on litigation, including the discovery of social-networking profiles, their admissibility at trial, and various problems that arise from jurors who conduct research on or talk about the case for which they’re serving jury duty on social-networking sites.
So it seems fitting that there were yet two more stories this week on exactly this topic. The first story comes from Detroit, where a 20-year-old juror was removed from the jury for commenting about the case on her Facebook page. Specifically, Hadley Jons’ status update said that it was “gonna be fun to tell the defendant they’re GUILTY."
At the time she made the post, though, the trial wasn’t over. In fact, the defense had not yet started the presentation of its case.
The defendant’s lawyer’s son found the post and Jons was removed from the jury. But that wasn’t the end of the story for Jons, either. She was summonsed by the judge and charged with contempt for violating her sworn duty not to decide the case until all evidence had been presented.
The court ordered Jons to pay a $250 fine and to write a five-page essay about the constitutional right to a fair trial. The punishment seems appropriate, especially in light of Jons’ apparent journalistic affinity.
The second case comes from across the pond in Manchester, England, where a 29-year-old juror was called before the court after it was discovered that she, like Jons, had discussed the case on Facebook. According to the woman, whose name has not been released, someone on Facebook asked her whether the defendant was guilty. She responded, apparently under the impression that her privacy settings “would only keep it between my friends.” She posted that the jury was split.
Apparently it was—the trial ended without a verdict as a result of a hung jury. The juror claimed that she didn’t realize that she was doing anything wrong by revealing this information to her network of friends. The judge saw it differently and summonsed her back into court, where he gave her some stern words of warning. Unlike Jons, though, the British juror was not charged or, as the judge had apparently considered, reported to the police.
Undoubtedly, this is a problem that will continue for quite some time. Citizens, especially younger ones, are so used to publishing every detail of their lives that it seems unnatural almost to be prohibited from doing so. Thus, when the court instructs a jury not to discuss the case with anyone—and even if it is specifically instructs that “anyone” includes anyone in their virtual network of friends—it can be difficult for some to comprehend the potential impact that their disclosure could have. So what’s the solution? There may not be an easy one. As many courts are already doing, jurors must be given instructions that are as specific as possible and that address clearly Facebook, Twitter, blogs, and text messaging so that there can be no doubt that those tools are off limits. It also seems necessary that jury instructions include an explanation of the reasons for such an “unnatural” prohibition.
See also:
Social Media Research Repository (collecting links to state and federal jury instructions that specifically address social media)
Jurors’ Online [Mis]Conduct Leads to Requests for New Trials in 3 High-Profile Cases
I’ve had three (3) mistrials in one summer, including two in one case within less than 24 hours of each other, two the result of juror misconduct, the third because a prospective juror I struck from the panel hung around outside the court room and told the jury members information he had about the case (and he had failed to disclose in voir dire) as they were about to ride the elevator down to lunch and poisoned the well. In one of the juror misconduct instances and the “elevator” instance, one juror came forward, thank God, and ratted out the guilty parties. If they hadn’t we would have continued the cases ignorant of the problem. In all instances, fortunately, the mistrials were declared early in the trials. I think this problem may be more prevalent than we realize, particularly with jurors who are “conscripts” – i.e., there against their will.