Depending on who you ask, social media in the courtroom may not be much of an issue. The Federal Judicial Center surveyed 494 judges in 2014 and found that only 33 of them had encountered problems with the likes of Facebook and Twitter, and these incidents occurred predominantly during trials. Some cases have gained national notoriety, however, shining a spotlight on the effect of online networking in courtrooms.
Social Media in Jury Selection
How often do trial lawyers ask prospective jurors for their Twitter handles? This is precisely what attorney Tomasz Stasiuk recommends in his article, Twitter in Court: Find Out Who Is Tweeting. Stasiuk points out that Twitter is "a huge back channel" that reveals what people are thinking and discussing with their friends: "The more people feel they are trapped somewhere they do not want to be ... the more likely they are to tweet about it to their friends."
Leslie Ellis makes a similar point in Friend or Foe? Social Media, the Jury and You. Ellis says that lawyers should attempt to identify the social media accounts of jurors and study their public posts, making sure the person they find online is the same individual in the courtroom. She suggests incorporating knowledge gleaned from their social media posts into voir dire. Ellis also cautions attorneys to remember not to commit any ethical violations in this process, such as using a fake identity or getting a third party to access the person's restricted pages.
Attorneys representing Conrad Murray did this during jury selection, screening jurors based on their Twitter and Facebook posts. The jury questionnaire asked the jurors to disclose information about their social media posts, such as whether they had publicly commented on Conrad Murray and his involvement with Michael Jackson's death. The lawyers also studied information that was publicly available online about the jurors.
Social media offers an opportunity for attorneys to learn far more about jurors than they could in the past. Some may find it disturbing to realize just how much information can be gleaned about people through this source, but it would be far more disturbing to allow someone who is tweeting negative comments about your client to sit on the jury. Try eavesdropping on what your jurors are tweeting and you might learn something that could change the outcome of your case.
Social Media and Juror Misconduct
Notwithstanding the findings of the FJC in 2014, the rate of jurors tweeting or posting comments on social media during trials is astoundingly high, according to a Reuters Legal article, and it has resulted in numerous new trials and overturned verdicts. So what do you do if you believe a juror is engaging in misconduct in their social media posts?
If you have reason to believe that a juror has been posting comments but you don't have access to what was said, you might ask the judge to order the juror to release his or her social media records. This was attempted in a case in California. The juror had posted messages on Facebook during the trial, including one about how boring it was going over some of the evidence. He insisted that he did not comment on the evidence and did not express an opinion about the defendant's guilt. Nonetheless, the judge ordered the juror to turn over his Facebook records. The juror refused to comply with the order and filed an appeal, arguing that federal law protected the material from disclosure unless police have a warrant.
In a more unusual case, a male juror in Florida was accused of "friending" a female defendant while serving on her jury. Rather than accept the friend request, the juror told her lawyer about it and the man was dismissed, but he then went home and posted comments on Facebook, making jokes about getting out of jury duty.
Juror misconduct in social media can have dramatic consequences on the outcome of a trial. The Arkansas Supreme Court reversed a capital murder conviction and death sentence and ordered a new trial because a juror had repeatedly tweeted comments during trial and even during jury deliberations. Although the trial court found that the defendant did not suffer any prejudice, the Arkansas Supreme Court disagreed and said that the juror's tweet's constituted a public discussion of the case. They went on to recommend that the court system considers limiting juror access to mobile devices during the course of trials because of the risk of this conduct and because mobile devices give jurors access to a wide range of information they should not be considered in their deliberations.
Social media conduct creates opportunities for lawyers to better understand the beliefs of potential jurors, and it may even provide grounds to challenge jury verdicts on appeal or even in post-conviction proceedings in criminal cases. Study the social media habits of the venire, question them about their social media posts and keep an eye on the Twitter and Facebook accounts of those who make it onto the jury.