I recently had a personal injury case of mine proceed to a jury trial. The trial judge, like many others throughout the state and country, warned the jurors throughout the trial not to conduct their own research on the case or look up information on the parties or the lawyers involved. Based on my recollection, no specific instructions were given to the jury concerning the usage of social media during the trial. In courtrooms across the country, however, jurors’ usage of social media has become a hot topic for debate. In previous blog posts, I have discussed some of the potential problems that can arise from a juror’s use of social media during a trial. In past years, before the development of social media, jurors’ communication with the outside world during a trial was not hard to curtail. Now with the boom in popularity of various forms of social media, this has all changed.
The New Jersey Law Journal recently covered this problem, and its possible solutions, at length. With an estimated 845 million active users on Facebook posting 2.7 billion comments and likes daily and Twitter posting 175 million tweets a day, it is no surprise that judges have become even more concerned recently about “the incursion of social media into the courtroom and its impact on the fairness of trials.” Judges typically have broad discretion in determining how to handle the problem when a juror is found to have used social media to discuss some aspect of the trial. Below are some of the ways that judges have dealt with jurors who have used social media during trials.
In many cases, a judge may remove a juror from a trial if it is determined that the juror used social media such as Facebook or Twitter to discuss the case during the actual trial. In some cases, though, a judge may allow the juror to remain on the case after a warning. Some judges have actually gone so far as to declare a mistrial whereas others have held the specific juror in contempt of court. In other cases, judges have conducted hearings to determine what information was inappropriately shared by the juror through his or her usage of social media. Judges have also been to known to confiscate phones and other electronic devices during jury deliberations and some even went so far as to take them away from jurors at the start of every trial day. A few judges have been reported to require jurors to sign pledges to refrain from using social media while serving on the jury panel. Along those lines, some other judges had jurors swear a separate oath while others required that reminders be posted in jury rooms. One of the more popular measures is to explain to jurors the reasons why social media is banned from the courtroom, followed by various instructions to jurors throughout the trial concerning the ban on social media.
Still, perhaps the issue is being overblown. A recent survey of jurors found that of 140 jurors who participated in the survey, only 6 said they were tempted to communicate about the case through social media. All 6 respondents said that they resisted the urge to use social media in the trial due to the judge’s instructions and their duties as jurors. The survey found that judges’ cautionary instructions concerning the ban on social media in the courtroom seems to be working.
The social media issue has played out in 2 recent trials, with opposite outcomes. The Third Circuit Court of Appeals upheld the conviction of former Pennsylvania State Senator Vincent Fumo on 137 counts of fraud, tax evasion, and obstruction of justice despite Fumo’s claim that a juror’s tweets and Facebook postings about the case during deliberations denied him a fair trial. The court affirmed Fumo’s conviction and found that there was no substantial prejudice to Fumo because the juror’s comments on Facebook and Twitter were vague and innocuous.
On the other hand, the Arkansas Supreme Court overturned a capital conviction on December 8, 2011 because of a tweeting juror who was being “followed” by a reporter covering the case.
And lastly, a Florida state court judge in an automobile negligence case last month sentenced a juror to 3 days in jail for contempt of court because he sent a Facebook message to the defendant.
So if you are a juror serving on a trial, be sure to listen to the judge’s instructions concerning the usage of social media. Otherwise, as you can see, your actions can have far-reaching consequences. What might seem to be an innocent tweet or post on Facebook can have major ramifications on the integrity of the jury trial process where life, liberty, and property could be at stake. At best, you might be admonished by the judge and embarrassed in front of everyone else on the jury, and, at worst, you could wreck the whole trial and be sent to jail for contempt of court.
Stephen Di Stefano is an attorney in Stark & Stark’s Marlton, New Jersey office, specializing in Accident & Personal Injury Law. For more information, please contact Mr. Di Stefano.