March 5, 2010 – A federal judge declared a mistrial after eight weeks of trial because several jurors decided, on their own, to use the Internet to research information about the case during deliberations.
A state court in Arkansas had to overturn a $12 million verdict because a juror used Twitter to update his followers during the trial, including tweeting, ““So, Jonathan, what did you do today?” Oh, nothing really. I just gave away TWELVE MILLION DOLLARS of somebody else’s money!”
These are just a few high-profile examples in the last year of jury misconduct and mistrials based on jurors using the Internet to conduct independent research while deliberating, or posting on blogs, Facebook, or Twitter during trial or post verdict. As a result, a number of states have implemented rules prohibiting the use of computers or cell phones while attending trial or during deliberation, and specifically prohibit jurors from accessing the Internet, or blogging, tweeting, or posting about the trial.
Wisconsin recently introduced discretionary model jury instructions that also address this issue, including a prohibition against “use of a computer, cell phone or other electronic device with communications capabilities to share any information about this case.” The new instructions also prohibit communication by “blog, email, text message, twitter, or in any other way, on or off the computer.” Various jurisdictions may have local rules, however.
Dane County’s rule on electronic devices was just updated on Feb. 1, 2010, to make it clear it applies to both the lawyers’ use of electronic devices as well as jurors’ use, according to Gail Richardson, District 5 court administrator for Dane County courts. The rule states: “While on a sequestered jury or while deliberating, jurors shall not be permitted to use computers or other electronic equipment for communication or access to the internet without the express permission of the trial judge.”
“Everything has to be turned off in the courtroom, and jurors are not allowed to use communications devices at all,” Richardson added. The rule does allow for the use of electronic equipment to be at the discretion of the judge, however.
According to Tom Sheehan, court information officer for Wisconsin State Court System, there haven’t been any high-profile social media mishaps in Wisconsin courts … yet. But even though this hasn’t been an issue in Wisconsin so far, it is something the judiciary is paying close attention to because of trial mishaps in federal and other state courts. “The Wisconsin court system has offered judicial education opportunities to explore new issues with social media as well,” Sheehan added. “It’s something we are monitoring very closely.”
The national view
What’s happening in Wisconsin is not inconsistent with what is happening nationally, according to Michael Sommermeyer, court public information officer for Clark County Courts in Las Vegas, Nev., and a member of the Conference of Court Public Information Officers (CCPIO).
“Some courts have decided to totally outlaw electronic devices and social media, with specific instructions prohibiting tweeting, updating Facebook and searching Google, to other courts that have stayed with the current admonition against outside influences and left the rest up to the discretion of each judge,” Sommermeyer said.
The CCPIO has launched a New Media Project where it is exploring the effects of digital media on the courts and is taking the next year to research the subject and develop white papers to offer further guidance, according to Sommermeyer.
Yet in addition to what jurors and lawyers can and cannot do in the courtroom, courts themselves are also struggling with how they should be participating in social networks.
“Can judges use Facebook, for example?” asked Sommermeyer. “That raises the issue of at what point can a judge be influenced. You don’t want to cause a problem where it appears the court is biased.”
In Wisconsin, according to Judge Richard J. Sankovitz, Milwaukee County Circuit Court, you’ll find a couple dozen appellate, circuit, and municipal judges in Wisconsin on Facebook and other social media sites. (Read Sankovitz’s article, “Can’t We Be Friends,” in The Third Branch.)
An ethics advisory committee of the Florida Supreme Court recently released an opinion that concluded it is unethical for a judge to “friend” lawyers who practice before him or her on social networking sites such as Facebook or Twitter.
Reaction in judicial circles has been mixed. Some argue that judges are involved in social activities or “networks,” such as church groups, book clubs, sports leagues, and country clubs, where they are also likely to become acquainted with lawyers who practice before them, and yet those types of activities have never been banned. So why ban the online network that has the same effect?
In either case, there will continue to be controversy and discussion on social media in the courts from 2010 and beyond.
By Deborah G. Spanic, legal writer
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