Caution signs may need to be posted where the information superhighway intersects with the halls of justice. While judges carry BlackBerrys and lawyers “Twitter” with colleagues and consultants, jurors have access to the same media. At stake is control of the judicial process.
Both federal and state courts generally set their own rules on the use of electronic devices in the courthouse, and the Michigan Supreme Court is the first to ban all electronic communications by jurors during trial. Its new rule, which takes effect September 1, requires state court judges to instruct jurors not to use any electronic communication devices while in the jury box or during deliberations. Jurors will also be told that they cannot use electronic devices to obtain or disclose information about the case when they are outside the courtroom.
This year, a few courts have declared mistrials because of jurors’ and witnesses’ use of electronic communication tools in and out of the courtroom, and trial lawyers are starting to realize that their own behavior online can have consequences in court.
“Lawyers need to understand how people communicate, using Facebook and other electronic media. Similarly, lawyers must be mindful of their postings on Twitter and other social media sites because jurors, witnesses, and others may discover them, creating difficult situations,” said Dan Siegel, an attorney in Havertown, Pennsylvania. Siegel is president of Integrated Technology Services and a law office technology columnist for TRIAL and other publications.
“Most people have so much information now—they’re exploring the Internet at home instead of watching TV,” said Amy Singer, a jury consultant in Plantation, Florida. “We seem to be a very information-hungry society, and we seem to be suspicious of what other people tell us. People don’t take what you say at face value; they go online and verify what you say.”
Twitter, the popular microblogging site, is the latest way of gathering and sharing information, and it has already had repercussions in the courtroom. In the corruption trial of former Pennsylvania state Sen. Vincent Fumo last March, juror Eric Wuest posted updates on Twitter and Facebook, including the news that a “big announcement” was forthcoming in the trial. U.S. District Court Judge Ronald Buckwalter met with Wuest but declined to remove him, saying he found credible the juror’s statement that no one outside the jury had influenced him.
Fumo was convicted on all 137 corruption counts. His lawyers plan to appeal the verdict, arguing that Wuest had improperly communicated with friends about the trial via Facebook and Twitter.
More extensive online activity by jurors has brought a few trials to an abrupt end. In Florida, after a juror in a criminal drug trial admitted to the judge during deliberations that he’d researched the case on the Internet, the judge questioned the entire jury. U.S. District Court Judge William Zloch found that eight others had searched for information about the lawyers and defendant on Google, looked up news articles about the case, checked definitions on Wikipedia, and located evidence that had been excluded from the trial as prejudicial. Zloch declared a mistrial in March.
Also in March, a civil trial in Arkansas resulted in a substantial verdict in favor of two plaintiffs who invested in building products company Stoam Holdings, which jurors found had made false claims about its product. That judgment was called into question after reports surfaced that a juror had made comments about the defendant on Twitter. During the trial and deliberations, juror Jonathan Powell sent eight Twitter messages (called “tweets”) about the case, including one advising friends not to buy stock in the company, which he said would “probably cease to exist, now that their wallet is $12 million lighter.”
The company filed a motion for a new trial, arguing that Powell was prejudiced against the company and that the tweets showed he “was predisposed toward giving a verdict that would impress his audience.” The attorney for the plaintiffs said state law requires that defendants prove that outside information entered the jury room and affected the verdict, not that information came out of the jury room. In April, Circuit Judge Mark Lindsay ruled that Powell’s tweets were in bad taste but that the messages didn’t amount to improper conduct, and he refused to overturn the judgment.
Twittering by witnesses also has seriously affected trial outcomes. While testifying in a Florida civil fraud case, an executive of the plaintiff company, Sky Development, sent text messages to Sky’s CEO at the plaintiff table while the judge was conducting a sidebar conference. The defendant’s attorney said the communication was “an intentional interference with the judicial process” and asked Miami-Dade County Circuit Judge Scott Silverman to declare a mistrial, which he did. The defense attorney plans to file a motion to dismiss the case.
Few rules to tweet by
The U.S. Judicial Conference has set no formal policy prohibiting electronic devices in courtrooms, although many federal courts have banned them. Generally, individual judges set the rules for their courtrooms. Much of the pressure to allow the use of these technologies in court has come from the media, and some judges are bowing to it.
Rather than suffer the constant interruption of reporters entering and exiting the courtroom to file stories, some federal judges, such as Kansas Judge Tom Marten, have begun allowing direct reporting from their courtrooms. Marten gave a trusted reporter from the Wichita Eagle permission to post messages to Twitter from the courtroom during a racketeering gang trial in March.
Similarly, a New York judge allowed reporters to use BlackBerrys in court to minimize disruption. And an Iowa judge this year allowed blogging from his courtroom during the trial of a landlord for alleged fraud and income tax violations.
State courts operate under a patchwork of policies regarding electronic communications. For example, Illinois bars electronic communication devices from the courtroom, while New York lets the judge decide whether to allow them. Some states ban cell phone use in the courthouse, but many don’t. The Administrative Office of the U.S. Courts lets federal courthouses set their own cell phone policies.
But even a set of clear-cut courthouse rules can’t guarantee that judges will be able to control how electronic communications affect cases. Preventing jurors from bringing smartphones and BlackBerrys into the courtroom does nothing to stop them from doing research on their own time.
Judges who once warned jurors not to talk to friends about a trial or read stories in the newspaper now have to lengthen their spiel, instructing them not to send e-mail, text messages, or tweets; post to their social-networking pages or blogs; or use the Internet to look up information about witnesses, defendants, lawyers, or testimony.
Will jurors follow these instructions?
“Some people obey jury instructions, and some don’t,” said Singer, the jury consultant. “Some have a compulsion to know and be viewed as an expert. In the privacy of their own homes at 2 a.m., they do whatever they want.”
Singer said the only way to ensure that deliberations are not tainted by information that shouldn’t be brought into the jury room is to “get jurors to police themselves.” She suggests making jurors promise in voir dire that if another juror brings to deliberations information that’s not in evidence, they will report it to the judge.
“That’s the only way you’re going to get them to stop,” Singer said. “Even if someone does Google information, if they bring it up in the jury room, they’re going to be afraid that someone else is going to rat on them.”
Lawyers social-network, too
Jurors aren’t the only ones communicating in court with texts and tweets—lawyers have access to the same technologies. In the 2007 trial of Jose Padilla on federal terrorism charges, a team of defense lawyers sitting in the back of the courtroom checked juror information online and discovered that one had lied on her jury questionnaire about her experience with the criminal justice system. They informed the judge, who dismissed the juror.
Lawyers who text and tweet in court are venturing into uncharted territory and should proceed with caution, said Siegel, the technology consultant. “If lawyers use Twitter or other [online tools] during legal proceedings, they risk being accused of trying to prejudice the jury or public and could run afoul of various rules of ethics,” he said.
There aren’t many rules for lawyers to follow either—yet. Bar association ethics opinions on the subject are scarce and address narrow fact patterns. For example, in March, the Philadelphia Bar Association’s Professional Guidance Committee issued an opinion stating that a lawyer can’t hire a third person to send a “friend request” to a witness. A lawyer deposed an 18-year-old woman and proposed to ask a third party to contact her with friend requests to get access to her Facebook and MySpace pages. The party would use his or her own personal information in an online profile but would not disclose that he or she was working for the lawyer and that the request was related to litigation.
Citing Pennsylvania’s rule of professional conduct that addresses nonlawyer assistants, the committee noted that the lawyer would be responsible for the third party’s conduct—and that the friend request would violate another state rule that prohibits lawyers from “engag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation.”
Jurors are more than likely to surf the Internet for information, and trial lawyers need to be prepared, using the technology themselves to level the playing field. “Some firms are maintaining two Web sites, one for normal times and one for pretrial and trial. They know that jurors will look at the law firm’s Web site during trial,” said attorney Gregory Cusimano of Gadsden, Alabama, who studies juror bias. “I have read that several states are struggling to decide how and what they can effectively do to minimize the problem.”
He said a trial consultant group list server he uses has been alive with comments, uncovering “lots of problems, few solutions.”
Rebecca Porter, Associate Editor