In the last few years, the use of social media has increasingly become an issue in the legal field. We are seeing social media being used as evidence in civil and criminal trials. There have been recent Maryland appellate opinions on how to admit evidence of social media use.
Social media is a good place for juror conduct that completely screws up a trial. In the good ole days, jurors who communicated inappropriately during a trial did so verbally. Of course, this was hard to trace and prove. Improper verbal communications could lead to a mistrial. But it was so hard to make this case from an evidentiary standpoint. You needed live testimony from witnesses. With social media, you can just wave the tweets and posts in front of the judge.
There have also been cases involving social media use by jurors. Here in Baltimore, there was an issue in the sensational Sheila Dixon trial about jurors becoming Facebook “friends” with one another. It has now become commonplace for jurors to be instructed that they are not to discuss their jury service on social media during the trial.
Tracking Jurors on Social Media
Here’s at least one tip for lawyers concerned about jurors using social media: there is a way to at least try to see if there are jurors or potential jurors using Twitter from the courthouse. Bing (Microsoft’s answer to Google) has a Twitter Maps feature that allows you to type in any address, and it will show you the location of any Tweets that have recently been made in the vicinity, as long as the user has geolocation enabled. Just go to Bing Maps, type in the address, click on Map Apps, and select Twitter. Voila!
For example, I just saw a Tweet made a block from the Circuit Court for Baltimore City asking “Is there snoring allowed in the courtroom?” I bet that’s not somebody you want on your jury, right? I’m not sure exactly how useful of a tool this will be, but it’s certainly interesting to play with.
I want to make sure I’m up to speed on all of this. If attorneys and judges are not well-versed in the workings of the Internet and social media, managing the risks of juror misconduct can be a daunting task. Faced with alleged misconduct, attorneys and judges need to know how to deal with determining [whether misconduct has occurred and ultimately determining whether any misconduct is prejudicial.]
Mark Twain thought our jury system imposed a “ban upon intelligence and honesty.” And this was before the days of tweets, emails, Google, blogs, and texts.
The Social Media Rule for Jurors in Maryland
This is what the court will tell the jury:
Many of you use cell phones, smart phones or other electronic devices to communicate with friends, family, coworkers or others. During this trial do not communicate any information about this trial or opinions about this case or any individuals involved in it to anyone, including sending electronic messages. Don’t be involved in any social media or networking sites such as Facebook, Reddit, Linkedln, Snapchat, YouTube or Twitter or communicate on those sites about this trial.
Do all jurors follow these instructions? Of course not. Is that grounds for a new trial? That is the trial judge’s call. Generally, Maryland appellate courts review the denial of a motion for a mistrial under the abuse of discretion standard, because the “trial judge is in the best position to evaluate whether or not a defendant’s right to an impartial jury has been compromised.” It is hard to flip a judge’s call on an abuse of discretion call.
Juror Twitter Misuse Stories
- In this case, local television news found that a juror made postings on Facebook and Twitter about the trial before the verdict. The juror quickly made things worse by deleting the posts.
- In 2017, a Trump supporter and recent law school graduate filed a $100 million lawsuit against Twitter and her law school for… it is just too silly. You can read the article if you are interested.
- Law enforcement is doing a good job of using Twitter to catch the bad guys.
- How social media crushed one of our clients
- In 2019, El Chapo seeks a new trial because the jurors allegedly were checking out the case on Twitter
Law Review and Other Articles
- Hoffmeister, Google, Gadgets, and Guilt: Juror Misconduct in the Digital Age (Winter 2012) 83 U.Colo. L.Rev. 409.
- Marcy Zora, The Real Social Network: How Jurors’ Use of Social Media and Smart Phones Affects A Defendant’s Sixth Amendment Rights, 2012 U. Ill. L. Rev. 577 (2012)
- Goldstein, The Appearance of Impropriety and Jurors on Social Networking Sites: Rebooting the Way Courts Deal with Juror Misconduct (Summer 2011) 24 Geo. J. Legal Ethics 589.
- Janoski–Haehlen, The Courts are All a ‘Twitter’: The Implications of Social Media Use in the Courts (Fall 2011) 46 Val.U. L.Rev. 43
- Browning, When All that Twitters is Not Told: Dangers of the Online Juror (March 2010) (2010) 73 Tex. B.J. 216.