Jurors + Internet = Trouble Juror Use of the Internet and Social Media Introduction II. Specific Concerns of Internet and

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1 Jurors + Internet = Trouble Juror Use of the Internet and Social Media Presented by Warren Platt Snell & Wilmer (Orange County, CA) Materials by Warren Platt and Ahron Cohen I. Introduction Internet use in America has expanded very rapidly in recent years. More than 240 million Americans use the internet. Social media and social networking sites have expanded exponentially, and even more rapidly than general internet use. According to a Pew Research Center survey in 2011, approximately two-thirds of adult internet users in America use socialnetworking sites. As of late 2011, Facebook has roughly 845 million active users. Twitter has over 200 million worldwide users. Social media is becoming so prevalent that roughly one quarter of all time spent on the internet by Americans is on social media sites. The increase in personal device technology, such as smartphones, tablets, and laptops, enables people access to the internet and social media like never before. More than 100 million Americans currently use a smartphone. More than 50 million Americans currently use a tablet device, and several forecasts predict that this number will reach 90 million by The increase in device technology truly allows users to access the internet and social media anytime and anywhere. As seen in recent years, anytime and anywhere includes while on jury duty. Judges and lawyers have long dealt with concerns that jury members would consider evidence or facts not presented at trial by watching television programs or reading newspaper articles about the case. Nevertheless, the influence of the internet and social media, and the ubiquity of personal devices, creates a brave new world that lawyers and judges must quickly comprehend and address, as they face issues never seen before. II. Specific Concerns of Internet and Social Media Use By Jury Members Internet and social media use provide substantial benefits to practicing attorneys. For instance, internet use enables lawyers to thoroughly identify cutting edge legal issues and cases. Moreover, blogging and social media sites allow lawyers to engage in networking and business development, share interesting legal topics with others, and dig up information on opposing parties or potential jurors. Such benefits are not present with regards to internet and social media use by jury members. First, there is a reason why so many people own personal devices and access social media and other internet sites it is because the devices and sites are engaging, and some might say, addicting. In fact, the devices are so engaging that they have a tendency to distract people from work, conversations, or even paying attention to the case while on a jury. Long days on a jury may make many jurors prone to distraction (e.g., staring at the ceiling fan, sleeping, etc.), but the advent of personal devices enables jurors to completely disengage from the case-at-hand and focus solely on updating friend requests on Facebook. A second concern is that jurors will use information procured on the internet which relates to the case, and base their decisions on factors outside of the evidence. The judicial system and evidentiary rules are designed to protect and shield certain evidence or facts from getting to the jury. If a jury member uses his or her smartphone to read information about the defendant, then the jury member may draw a conclusion that

2 evidentiary rules are designed to protect against. While the second concern deals with jurors taking in information from the internet, the third concern addresses jurors giving out information from the trial to others through the internet and social media. This third concern creates serious problems for the court, in that jurors may tweet, blog, or post confidential and/or inappropriate comments relating to the trial for all internet users to see. In fact, jurors posts or tweets about the trial may even target fellow jurors, improperly swaying their opinions of the case. Moreover, such comments about the trial allow lawyers to access information that could affect the outcome of the trial. For instance, if a juror tweets that the defendant is clearly guilty because the police found a glove at the crime scene owned by the defendant, the defense lawyer now knows that he or she needs to focus more on this issue and demonstrate that the glove does not fit. A corollary concern with jurors outwardly expressing information regarding the case over the internet is that it undermines the public trust in the impartiality of the jury system. If the public knows that many jury members are inappropriately using social media during the trial, then the public may lose faith in any future jury verdict. Fueling this fire is the fact that internet communications are difficult to keep hidden. As various public scandals illustrate, what is said (or shown) 1 over the internet creates a paper trail for all to see. Unlike ephemeral communications of past times, statements over the internet are not easily erased or forgotten. III. Specific Examples of Jury Use and Abuse of the Internet and Social Media The recent cases involving juror use and abuse of the internet and social media are quite shocking. In December of 2011 in Sarasota, Florida, a male juror friended the female defendant in a state court car-wreck case, and was kicked off the jury once the judge found out what had occurred. 2 As if being kicked off the jury did not send a sufficient message to the man to stop using social media in relation to the case, he later posted on his Facebook wall, Ha, ha, ha, I got out of jury duty. 3 After finding out about the post, the judge scheduled a hearing to determine whether to impose jail time. 4 At the conclusion of the hearing, the judge found the man in criminal contempt and ordered that he spend three days in jail. 5 While juror use of the internet and social media may have criminal implications for the misbehaving juror, the actions might also affect the outcome of the case. 6 In a capital murder trial in Bentonville, Arkansas, a juror tweeted on numerous occasions during the trial in reference to substantive elements of the case. After counsel alerted the judge, and the judge admonished the juror for his misconduct, the juror continued to tweet. 7 Following deliberations, the jury returned a guilty verdict, and the trial court imposed the death sentence. 8 The trial court denied the defendant s motion for a new trial. The Arkansas Supreme Court, however, reversed and granted a new trial, stating: [T]his court has recognized the importance that jurors not be allowed to post musings, thoughts, or any other information about trials on any online forums. The possibility for prejudice is simply too high. Such a fact is underscored in this case, as Appellant points out, because one of the juror s Twitter followers was a reporter. Thus, the media had advance notice that the jury had completed its sentencing deliberations before an official announcement was made to the court. This is simply unacceptable, and the circuit court s failure to acknowledge this juror s inability to follow the court s directions was an abuse of discretion. 9 Numerous other examples of similar misconduct by jurors are readily available. For instance, in 2009, a federal judge in Florida declared a mistrial in a drug case after discovering that all nine jurors had conducted internet research on the case, leading legal pundits to inject Google mistrial into present-day vernacular

3 In a California federal case, jurors were communicating with each other through Facebook during the course of the trial. 11 In an Illinois state case, a juror, on several occasions, blogged about events transpiring in the courtroom that day. 12 After a verdict in the plaintiff s favor, the defense attorneys uncovered the blogs and asked for a new trial. 13 The trial court refused to grant a new trial, and the Illinois Court of Appeals upheld the trial court s ruling. The Illinois Supreme Court will now decide whether to grant a new trial. While the Illinois Supreme Court may overturn the verdict in the blogging case, one California Superior Court case illustrates the difficulty in overturning the verdict and granting a new trial in cases of juror use of the internet and social media. In Mauro v. Ford Motor Co., Inc., one of the jurors (1) searched for a definition of intent on the internet, and (2) searched the internet for information involving one of the plaintiff s attorneys and relayed to other jurors that the attorney had been on big cases that meant big things. 14 While the court acknowledged that the juror s use of the internet constituted misconduct, the court upheld the verdict and refused to grant a new trial, concluding that there is no reasonable probability or substantial likelihood that one or more jurors were actually biased against Ford as a result, or that there was any impermissible influence upon the jury to Ford s detriment. 15 IV. Steps Taken to Mitigate Juror Use of the Internet and Social Media As illustrated by the above examples, social media and internet use by jurors is a major concern for judges, lawyers, and the United States judicial system as a whole. Given this concern, what steps are judges taking to combat the problem? According to a 2011 survey by the Federal Judicial Center, 94% of federal district court judges have taken steps to ensure that jurors do not use social media in the courtroom. 16 Specifically, of the judges of who have taken steps to mitigate social media use, 60% use the Court Administration and Case Management ( CACM ) model jury instruction on social media use, which reads as follows: You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in the case, and the individuals or corporations involved in the case. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Please do not try to find out information from any source outside the confines of this courtroom. Until you retire to deliberate, you may not discuss this case with anyone, even your fellow jurors. After you retire to deliberate, you may begin discussing the case with your fellow jurors, but you cannot discuss the case with anyone else until you have returned a verdict and the case is at an end. I hope that for all of you this case is interesting and noteworthy. 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 , 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. 17 A jury instruction can be an effective tool to mitigate juror use, but it should explain to jurors the reasoning for the instruction. For instance, if jurors understand the repercussions of social media use while on the jury (e.g., the court might need to grant a new trial), then jurors will be

4 less likely to use social media and the internet. Additionally, as is the case with the CACM model jury instruction, the jury instruction should be specific and outline the particular devices and social media sites that jurors should refrain from using. Furthermore, judges should repeat the jury instruction throughout the course of the trial, so that jurors are constantly aware of the repercussions from internet and social media use. In some instances, jury instructions may not be enough to curb social media and internet use by jurors. Indeed, social media use for many people is habitual. As Thaddeus Hoffmeister, an associate professor at the University of Dayton School of Law stated, courts need to acknowledge that some people just can t stop using social media. 18 Moreover, jury instructions admonishing jurors to not use the internet and social media may even prove to be counterproductive for some jurors, as it may remind them of the fact that Facebook and Twitter are readily available at their fingertips. Some courts have considered technology bans on the courtroom. 19 The concern with an outright ban on personal devices is that it might thwart peoples willingness to serve on juries, as many Americans are now accustomed to interconnectedness at all times. As in the case with the Florida man who friended the defendant, some judges are willing to hold recalcitrant jurors in criminal contempt. In fact, California recently passed a law, effective January 1, 2012, that makes a willful violation of the prohibition on research or use of social media punishable by not only civil contempt, but also makes it a misdemeanor. 20 V. Conclusion As social media and internet use becomes even more ubiquitous in American society, judges and lawyers will face issues of juror misconduct by internet and social media use at a rate even more frequent than today. Lawyers and judges need to get out in front of this issue and create effective, workable solutions to this serious problem. Specific and frequent jury instructions throughout the trial in which jurors clearly understand the repercussions from such use is a good start. Nevertheless, lawyers and judges must continue to search for ways in which to mitigate the harmful ramifications of internet and social media use by jurors. 1 See Tiger Woods, Anthony Weiner, etc. 2 Ben Zimmer, Juror Could Face Jail Time for Friending Defendant, USA TODAY (Feb. 8, 2012), story/ /juror-facebook-friend-defendant/ /1. 3 Id. 4 Id. 5 Robert Eckhart, Juror Jailed Over Facebook Friend Request, HERALD- TRUBUNE (Feb. 16, 2012), ARTICLE/ Dimas-Martinez v. State, No. CR 11-5, 2011 Ark. LEXIS 593, at *7 (Ark. Dec. 8, 2011). 7 Id. 8 Id. at *1. 9 Id. at * Maggie Clark, Jurors on the Internet; A Dilemma for Courts, STATELINE (Dec. 19, 2011), story?contentid= Juror No. One v. State of California, No. CIV. 2: WBS-JFM, 2011 WL , at *1 (E.D. Cal. Feb. 14, 2011). 12 Keith Ecker, Juror Use of Social Media, Blogs Compromises Cases, LAWYERS.COM (Dec. 2, 2011), 13 Id. 14 Minute Entry, No. 06AS01246, at 1 (Cal. Super. Ct. Feb. 14, 2012). 15 Id. at Meghan Dunn, JURORS USES OF SOCIAL MEDIA DURING TRIALS AND DELIBERATIONS: A REPORT TO THE JUDICIAL CONFERENCE COMMITTEE ON COURT ADMINISTRATION AND CASE MANAGEMENT (Fed. Judicial Ctr., ed., Nov. 22, 2011). 17 Id. 18 Steve Eder, Jurors Tweets Upend Trials, WALL STREET JOURNAL (March 5, 2012), html. 19 Clark, supra note Thomas J. D Amato & Adam M. Koss, Courts and Social Media, DRI TODAY (March 5, 2012), Media.aspx (citing Cal. Civ. Proc. Code 1209(a)(6) ( The following acts or omissions in respect to a court of justice, or proceedings therein, are contempts of the authority of the court: Willful disobedience by a juror of a court admonishment related to the prohibition on any form of communication or research about the case, including all forms of electronic or wireless communication or research. ) & Cal. Penal Code 166(a)(6) ( [A] person guilty of any of the following contempts of court is guilty of a misdemeanor: Willful disobedience by a juror of a court admonishment related to the prohibition on any form of communication or research about the case, including all forms of electronic or wireless communication or research. ))

5 About Warren Platt Partner Snell & Wilmer Orange County, CA Warren Platt s practice is concentrated in civil litigation matters with principal emphasis on defense of major product liability suits for national and international manufacturers, complex commercial litigation, and defense of accounting malpractice litigation for national and regional public accounting firms. National and international representative clients include Ford Motor Company, Price Waterhouse Coopers and Emerson Electric Company. Professional Recognition & Awards Chambers USA: America s Leading Lawyers for Business, Products Liability & Mass Torts; Products Liability: Automobile ( ) The Best Lawyers in America, Personal Injury Litigation (Defendants), Product Liability Litigation ( ) Lawdragon Top 3000 Leading Lawyers in America ( ) Southwest Super Lawyers, Personal Injury Defense: Products ( ) Super Lawyers, Personal Injury Defense: Products - Business Edition (2011) Super Lawyers, Personal Injury Defense: Products - Corporate Counsel Edition ( ) Arizona s Finest Lawyers (2011) The International Who s Who of Product Liability Defence Lawyers (2010, 2011) Representative Presentations & Publications Utility Vehicle Rollover Fundamentals -- Why Utility Vehicles Won t Ever Grow Up To Be Passenger Cars, No Matter How Many Lawsuits Are Filed, Author, ABA National Institute on Emerging Issues In Motor Vehicle Product Liability Litigation (1996) Computers in the Courtroom, Author, ABA National Institute on Emerging Issues In Motor Vehicle Product Liability Education University of Arizona (J.D., 1969) Order of the Coif / Managing Editor, Arizona Law Review ( ) Michigan State University (B.A., 1965)