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Social media and juries : How do we preserve the right to a fair trial?

Jury trials social media

photo c/o Flat Earth Theatre

The Wall Street Journal’s Steve Eder (@steveeder), had an interesting piece Monday on lawyers getting verdicts overturned based on jurors use of social media.
An Arkansas jury found Erickson Dimas-Martinez guilty of murder in March 2010. This past December, the conviction was thrown out. The reason: A juror had been tweeting during the trial. This case and others across the country show how the use of social media is disrupting the jury trial. While juror misbehavior is nothing new, social media have made it extremely easy—and tempting—to break the rules, and lawyers are increasingly using that as a reason for appeals, legal experts say. While most judges frown upon jurors’ using their smartphones while sitting in the jury box, jurors typically have full access to social media outside the courtroom. The challenge for courts, legal experts say, is enforcing social-media bans during trials—which can last for weeks—at a time when authorities can’t even stop some people from risking their lives by sending text messages while driving.

No question judges are trying to clamp down on jurors’ improper use of social media.

Judges typically instruct jurors not to do any independent research or communicate with anyone about the case they are hearing, either through social media or in person. Courts are concerned about what users might say online, because it could be construed as having a bias about the case or reveal information about a trial or deliberations before they becomes public.

The tough thing for judges, as reported by Eder, is detecting jurors use of social media during trial.

Late last year, 79% of judges who responded to a survey question by the Federal Judicial Center said they had no way of knowing whether jurors had violated a social-media ban. Legal experts say someone would need to have access to a juror’s postings and flag it to the court.

The manner in which judges sanction jurors for disobeying the court’s instructions on the use of social media vary from judge to judge, whether it’s fining jurors, holding then in contempt (think jail for the afternoon or community service for a couple days), or removing them from the jury panel (may be a gift to some jurors). Here’s a depiction of how judges are sanctioning jurors.

Judges actions on jurors use of social media

Collateral attacks of a verdict or sentence based on juror misconduct have historically been tough for trial lawyers. How do you get a record of what the jurors did wrong? How do show a bias that denied a party a fair trial? How do you demonstrate that the misconduct was prejudicial, that is caused the jurors to go the way they did.

Any trial lawyer whose tried a fair amount of cases has had their hair raised when interviewing jurors after trial. I recall a juror in a case involving my largest verdict telling me the jury was not going to rely on the experts the plaintiff and defense called from Portland and Toronto, respectively. She went home and did her own medical research.

There was no way the defense was aware of the jurors misconduct. But today perhaps the juror would go on on Facebook or Twitter and let others know what she did to influence the verdict. That would be a present a nice clean record as the basis for the collateral attack of the verdict.

As with all aspects of social media, we’re going to read about the sensational, as opposed to the ordinary. Each day justice is delivered in courthouses across America with jurors tethered to the net and social media via their smart phones.

Thaddeus Hoffmeister, an associate professor who researches juries at the University of Dayton School of Law in Ohio, offers the best advice – bring jurors into the fold.

…Courts need to acknowledge that “some people just can’t stop” using social media. You have to start treating jurors less like children. Jurors should be equal partners in the courtroom—tell them why they can’t do things.

No question social media and social networking can impact the justice system. So could telephones and the public library 60 years ago. We didn’t monitor whether jurors went to the library during a 2 week trial nor did we wiretap their phone conversations. We trusted jurors to do the right thing by imparting on them just how important a role they played in rendering justice in this country. The same will be the case for social media and social networking.