Juries and Social Media

John Browning, an eminent trial attorney based in Dallas, TX, recently wrote an article about the American Bar Association’s Formal Opinion 466.  The opinion states “[u]nless limited by law or court order, a lawyer may review a juror’s or potential juror’s Internet presence, which may include postings by the juror or potential juror in advance of and during a trial, but a lawyer may not communicate directly or through another with a juror or potential juror. A lawyer may not, either personally or through another, send an access request to a juror’s electronic social media.”  Mr. Browning believes not only are lawyers obligated to research potential jurors via the Internet, but it may be malpractice if they do not. 

I completely agree with Mr. Browning, especially because comments made online by jurors during and after the trial could lead to a mistrial.  Recently, in Michigan a defense attorney filed a motion for mistrial in a case where a man was found guilty of first degree murder for shooting and killing his childhood friend.  The defense attorney suggested that one of the jurors during the trial made a comment that tainted the verdict and requested a new trial.  The attorney stated that it was only after his 26-year-old son wondered aloud what the jurors might be saying on social media that he was prompted to check. According to the exhibits filed with the motion, during the trial the juror posted on Facebook, “Not cool a young man is dead another young man will be in prison for long time maybe.”  But, the judge denied the motion stating that the comments were innocuous.   

Moreover in a Florida court, another juror was not as fortunate.  He was held in contempt of court and taken out of courtroom in handcuffs.  He faces six months in jail for posting comments on social media after not obeying a judge’s order to refrain from posting personal opinions about the trial online.  The case proceeded forward, however, as a new juror replaced the former juror.

There is a definite and alarming trend of jurors using social media during trials.  It is estimated that over two-third of Internet users use some form of social media in their personal lives.  Judges have used various forms of punishment to alleviate the problem such as removing the juror, declare a mistrial, hold juror in contempt of court, or fine the juror.  There is no universal jury instruction disallowing the use of social media during and after a trial because each state has its own form of instruction.  Here is sample of states with such jury instructions.  Texas’ jury instruction concerning prohibiting juries from using social media can be found here.  Dallas County Courts list a number of prohibited items that cannot be brought into the courtroom by a potential juror.  However, smartphones, tablets, and other forms of communication are not prohibited.  Maybe they should be in light of these cases listed above!

Even though courts have the ability to prohibit juries from accessing social media during the course of a trial, it is very difficult to do so after.  With the proliferation of smartphones and other electronics and the increase use of social media, this is a challenge that our justice system is going to have to deal with in the coming decades.