The “Friendly” Jurors & Stored Communication Act

It is surprising this has not happened earlier: Two jurors meet and “friend” each other on Facebook during a criminal trial in California State Court.  The Criminal Defendant is found guilty.  Juror Number Five later informed the Criminal Defense Attorney the Juror Number One (hereinafter the Plaintiff) made comments about the trial on Facebook. Juror No. One v. California, 2011 U.S. Dist. LEXIS 16834 (E.D. Cal. Feb. 14, 2011).

Why would the Criminal Defense Attorney click the “Like” button on the Plaintiff’s Status comments? 

One comment was that Juror Number One was “still” on jury duty and the other he was “’bored’ during the presentation of cell phone record evidence.” Juror No. One, at *1.

The hearing and evidence on juror misconduct ran straight into the Stored Communications Act.  The Criminal Defendant issued a subpoena on Facebook for the Plaintiff’s posts.  Juror No. One, at *2.  Facebook refused because of the Stored Communications Act.  Id.

The Criminal Defendant than issued a subpoena directly to the Plaintiff for the Facebook material.  Juror No. One, at *2.  The Court quashed the subpoena because it was overly broad. Id.

The Court ultimately ordered the Plaintiff to “execute a consent form sufficient to satisfy the exception stated in [the Stored Communications Act] Title 18, U.S.C. section 2702(b) allowing Facebook to supply the postings made by Juror # 1 during trial.”  Juror No. One, at *2. 

The Plaintiff filed a Writ of Prohibition in the California Court of Appeal, which was denied.  An appeal is pending before the California Supreme Court.  Juror No. One, at *3. 

The Plaintiff sought a temporary restraining order from Federal Court on the grounds that the consent form would violate his Fourth Amendment right to privacy; Fifth Amendment right against self-incrimination; the Electronic Communications Act; the California Constitution, plus other California statutes.  Juror No. One, at *3. 

The Federal Court abstained from ruling on the temporary restraining order, because there was no evidence the California Supreme Court would not take the appeal.  The only evidence of the California Supreme Court not acting on the Plaintiff’s appeal were based on phone calls to clerks at the California Supreme Court.

Bow Tie Thoughts

Juror conduct (or misconduct) goes to the heart of our judicial system.  Judges and Attorneys should inform jurors that posting about a case on Twitter, Facebook or any social media forum is not acceptable.

The issue of whether ordering someone to consent and waive their Stored Communication Act rights is an interesting one.  Whether that violates the Fourth and Fifth Amendments will one day be decided.

Tech Savvy Judges and the Challenge of Jurors Conducting Online Research

Why would a juror’s online research be a “problem” for a criminal defendant?

Because an “extrinsic influence on a jury’s deliberations violates a defendant’s Sixth Amendment rights to an impartial jury, to confront witnesses against him, and to be present at all critical stages of his trial.” United States v. Dyal, 2010 U.S. Dist. LEXIS 72489, at *38 (D.S.C. July 19, 2010).

One tech savvy judge tried to head off any Constitutional challenges that may befall modern jurors who are packing SmartPhones and a high speed Internet connection. 

The Judge instructed the jury, both orally and in writing, the following: 

I remind you that during your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet device, or any text or instant messaging service; or any internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube, or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.

Dval, at *8-9. 

Despite these instructions, one curious juror did a Google search and looked up two words on Wikipedia and the Free Miriam Webster Dictionary.  Dval, at * 30-31.  When the Googling Juror brought this to the attention of the Jury Foreman, he was told Wikipeda is not reliable. Dval, at *52.  Moreover, when the Googling Juror tried sharing this information with others, he was cut off from discussing it.  Dval, at * 52-53. 

The Court held a hearing after the online research was brought to light to see if the jury had been tainted in its decision.   

After questioning of each juror, the Court found that the online research was juror misconduct, because the information was an improper external influence.  However, this was not prejudicial per se.  Dval, at * 55.  

The Court found that there was “no reasonable possibility that the external influence caused actual prejudice.”  Dval, at * 55.  This was based on the extensive questioning of all the jurors, which showed the Googling Juror had little to no influence on anyone and secondly, the terms he found were consistent with the jury’s own understanding of the terms.

Bow Tie Thoughts

It is very refreshing to see a judge try to head off problems in an age where people can whip out a SmartPhone and conduct an internet search for an instant answer. 

Judge Cameron McGowan Currie’s went out of his way to remind the jurors what not to do during deliberations, specifying naming some of the most commonly used social networking sites.  The jurors to their credit also were quick to avoid inappropriate conduct.

This will not be the last time a Court will need to do this sort of review, but it is a great roadmap on what to do when there is a juror conducting online research.

Twitter: Prohibited Jury Communications in Missouri

The pending jury instructions from the Supreme Court of Missouri address Web 2.0 and instant communications head on.  The jury instruction specifically states:

You are not permitted to communicate, use a cell phone, record, photograph, video, e-mail, blog, tweet, text, or post anything about this trial or your thoughts or opinions about any issue in this case to any other person or to the Internet, “facebook”, “myspace”, “twitter”, or any other personal or public web site during the course of this trial or at any time before the formal acceptance of your verdict by me at the end of the case.

In re Revisions to Mai-Civil, 2009 Mo. LEXIS 544, 5-6 (Mo. Nov. 23, 2009), at *5-6

The rules state that a violation of the rules “may result in a miscarriage of justice, and a new trial may be required.”  In re Revisions to Mai-Civil, at *6. 

Bow Tie Thoughts

It is only responsible for Courts to promulgate Web 2.0 rules that on devices that create instant communications.  As the rules state, Courts want to avoid any miscarriages of justice.  The realities of 21st Century life allow prospective jurors to access news in a heartbeat.  More importantly, Courts cannot permit the justice system suffer from a juror Tweeting “God, I cannot stand this Defendant.”

When Jurors “Friend” the Plaintiffs on Facebook…

Plaintiffs brought a motion for a new trial because of an email sent by a juror to the Plaintiffs’ attorney four days after a defense verdict.  Wilgus v. F/V Sirius, Inc., 2009 U.S. Dist. LEXIS 100094 (D. Me. Oct. 27, 2009).  The email stated:

 [D]id you know your plaintiff[s] advocated the use of mushrooms and weed smoking, and binge drinking all over the internet? . . . It['s] really sad what happened but with all the work going into this don['t] you think you should have address[ed] this issue and known such things so they could clean up their acts before court? I’m just trying to help.[] [I]f you want more info and insight [I] will help you.

Wilgus, at *2.

USB GavelHow did the juror learn this information? 

Facebook.  Wilgus, at *10.

How on Facebook you ask? 

The juror sent the Plaintiffs friend requests after the trial.  Wilgus, at *10.

And as you can guess, the Plaintiffs accepted the friend request.

After the Plaintiffs’ attorneys returned from low Earth orbit, the Judge held an investigation, asking questions of the juror at issue and the jury foreperson.  The juror claimed he did not “friend” the Plaintiffs until after the trial.  The juror also claimed he discovered photos on the Plaintiffs’ Facebook profiles that motivated him to email the Plaintiffs’ attorney.  Wilgus, at *10. 

The juror claimed that the information on Facebook was never discussed during jury deliberations.  Wilgus, at *10.  Additionally, the juror claimed the Facebook material would have not influenced him during deliberation, because he did not know about the Facebook photos at that point in time.

The Judge found no basis for the juror being untruthful as to when the juror found the Facebook material, which was after the verdict.  Wilgus, at *12-13.  As such, the Court denied the Plaintiffs’ motion for a new trial.

Bow Tie Thoughts

This case is a giant warning sign to any trial lawyer and judge on jurors and Facebook.  The idea of a juror “friending” a party at any point in time is troubling.  Moreover, trial attorneys really need to be aware of party admissions their clients might be making in status messages or damning their own case with photos.  If a juror can find it, watch out for the opposing party.

Juror Misconduct: When the Judge Says Don’t Talk About the Case, that Includes Facebook & Twitter

Who knew 140 characters, a few status messages, and tags could play a big role in a court opinion hitting juror misconduct? 

It is not a huge surprise in a criminal case involving politics, money and fraud. 

A Little Background: The Criminal Case against the Defendants

Senate FraudMultiple Defendants were charged with 141 counts of the following:

(1) Fraud and conspiracy to defraud the Pennsylvania Senate;

(2) Fraud and conspiracy to defraud Citizens Alliance for Better Neighborhoods (“Citizens Alliance”);

(3) Conspiracy to defraud the United States Internal Revenue Service (“IRS”);

(4) Fraud related to the Independence Seaport Museum (“ISM”); and

(5) Obstruction of justice and conspiracy to obstruct justice. United States v. Fumo, 2009 U.S. Dist. LEXIS 51581 (E.D. Pa. June 17, 2009)

To keep things interesting, one Defendant was a Pennsylvania State Senator.

The “Honorable” Senator was found guilty of 137 of the 139 charges against him.

Don’t Tweet the Trial

SilencedThe Defendants claimed they were entitled to a new trial because one juror had Facebook status messages and Twitter “Tweets” during the trial.  Fumo, 184-185. 

Here is the short version of what happened:

One of the jurors worked in the HR department of a law firm.  Fumo,192. He also was a user of Facebook, Twitter and had a personal blog. 

Like many Web 2.0 savvy users, he would post status messages and “Tweets” about his day. These included messages about the trial, provided you knew what the juror was talking about, since he did not disclose any facts. 

Jury deliberations were under full steam…and a TV story ran on the trial on March 15, 2009.  Fumo,183-184.

The Defendants learned from the news report that one juror made online postings about the trial.  The Juror also saw the headline for the report and quickly deleted his Facebook and Twitter postings out of fear.  Fumo,183-184. 

The Defendants in turn immediately filed a motion alerting the Court to disqualify the juror.  Fumo,184. 

Just What Did the Juror Say?

Twitter Postings

The juror’s one Twitter posting was simply: “This is it … no looking back now!” Fumo, 193-194. 

Facebook Postings

gossip girlBelow is the Court’s summary of the Facebook Status Messages:

Sept. 18, 2008 (apparently upon continuance of trial judge due to judge’s illness): “… is glad he got a 5 week reprieve, but could use the money …”

Jan. 11, 2009 (apparently referring to the end of the government’s case): “… is wondering if this could be the week to end Part 1?”

Jan. 21, 2009: “…wonders if today will really be the end of Part 1???”

Mar. 4, 2009 (conclusion of closing arguments): “…can’t believe tomorrow may actually be the end!!!!”

Mar. 8, 2009 (Sunday evening before second day of deliberations): “…is not sure about tomorrow …”

Mar. 9, 2009 (end of second day of deliberations): “…says today was much better than expected and tomorrow looks promising too!”

Mar. 13, 2009 (Friday after completion of week of deliberations): “Stay tuned for the big announcement on Monday everyone”

 Fumo, 194-196.

No RT’s from the Defendants

Defense Counsel wanted the juror “removed” from the trial, to borrow Twitter language.  They claimed the juror’s “behavior and his ‘utterly incredible testimony’ undermined his impartiality as juror.” Fumo,186-187.

The Court Tagging the Juror’s Comments

The Court held an in camera review one day after the news report.  Fumo,185. 

The Court was extremely supportive of the juror’s integrity and stated the following:

I just – – honestly, want to make sure my thoughts are on the record about this guy. My take on him is entirely different. My take on him is this is one conscientious guy trying very much to comply with all the rules and regulations that I’ve established more so then I would ever imagine that a juror would do. And I think that, you know, I’ve heard him and I don’t have any trouble with keeping him on the jury. Fumo, 185-186

The Court & Web 2.0

To the Court’s credit, the Judge included the “About” pages for both Facebook and Twitter.  Footnote 27 nicely summarizes Facebook’s Mission Statement “to give people the power to share and make the world more open and connected.”  Fumo, 184, fn 27. Additionally, the Court summarized Twitter as “a real-time short messaging service that works over multiple networks and devices.”  Fumo, 185, fn 27.

The Court’s RT on “This is it … no looking back now!”

The Court found that the juror’s ONE Tweet suggested “the jury’s decision had been made and that it was too late to influence him.”  Fumo, 194.  Moreover, the message was “so vague as to be unclear.” Fumo, 194.

The Tweet had no details on the case facts or showed any favor/disfavor to anyone in the criminal trial.  Fumo, 194.

Facebook Settings & Status Messages

Fumo-Court's TagThe Court’s analysis of the Facebook Status Messages included reviewing the juror’s privacy settings.  The juror belonged to the 600,000 member Philadelphia network.  Anyone in this network could view his status messages.  Fumo, 195. 

The juror’s profile was configured so only “friends” could post comments on his profile.  “Friends” could either post messages on the juror’s “Wall” or send a Facebook Message.  Fumo, 195-196. 

Defense Counsel questioned the juror on for whose benefit he was writing his status messages.  The juror explained that his postings were:

“…more for my benefit to just get it out of my head, similar to a blog posting or somebody journaling something. It’s just to get it out there. And that’s what a lot of Facebook … it’s just to get — a way to electronically gets thoughts off your mind.”  Fumo, 196.

The Juror was questioned on whether any “non-friends” ever contacted him or did anything to influence his thinking on the case.  The juror answered:

“No. Because – – again, because they have to be someone that I befriended in order to be able to post on the wall. Whether or not they can see it, I’m not sure. But I know they can’t post on it without being one of my friends.” Fumo, 198-199.

The questioning of the juror was very extensive.  Mark Zuckerberg, founder of Facebook, would have been very proud of the juror’s explanation of Facebook’s appeal during the Defense questioning.  The juror described that “some people use [Facebook] for connection between other people. I use it, personally, as a way to journal my thoughts and get everything out.” Fumo, 199-200.

The Court’s Findings

The Court found no evidence that the juror was influenced by his Facebook postings.  There was no evidence “random individuals” contacting him.  Moreover, there was no evidence the juror’s “opaque” postings were detailed enough for members of the Philadelphia network to know what the juror was talking about. Fumo, 201.

Bow Tie Thoughts

Given the number of iPhone, BlackBerry and other smart phone users who can be in a potential jury, lawyers and judges should include “No Twitter, Facebook or social networking” in the jury instructions.

Dodging a Mistrial for Juror Misconduct

No Comment...jury misconductIn an age where reporters are Tweeting from Courthouses and Citizen Paparazzi (Snaparazzi) roam the streets with iPhones, one can imagine a slip of the tongue resulting in juror misconduct. 

In the nightmare case of an elderly defendant who drove through a farmers’ market, the question of juror misconduct surfaced via a reporter’s blog.  People v. Weller, 2009 Cal. App. Unpub. LEXIS 4685, 44-45 (Cal. App. 2d Dist. 2009).

A reporter on her post-verdict blog stated that one juror sought spiritual counseling from his minister during a recess from deliberations.  Weller, 44.  

The Problem: A juror cannot discuss a pending trial with a nonjuror.  Weller, 44.

The only evidence offered to show any juror misconduct was the blog.

The blog was insufficient to show any misconduct, because there was no evidence that the juror discussed the case with his minister.  Weller, 44. 

Dodging Juror MisconductThings could have gotten exciting (on an evidentiary level) if the juror had been questioned on what he talked to his minister about, which could have resulted with the juror claiming the clergy- penitent privilege.

This privilege gives the penitent the right to refuse to disclose a penitential communication.  Cal Evid Code § 1033. 

One can wonder if the Defense could compel disclosure to show juror misconduct by claiming the Defendant’s Constitutional right to a fair trial. My guess would be “no,” because the verdict had already been issued and an appellate court will not be doing any fact finding.

If this had come up during trial, then perhaps the Trial Court would have simply excused the juror to avoid a clergy privilege vs Constitution showdown.

Anyone who has confidences to maintain, be it a juror, or a doctor, or anyone who wants to hold a private conversation, should be very careful with what they say in public. The ability for “citizen journalists” to post information in “real time” on Twitter, Facebook or a blog is a fact of life that can ruin your day.

Is the Circus in Town? Justifying a Change of Venue from Online Publicity

United States v. McRae, 2009 U.S. Dist. LEXIS 32411 (W.D. Tenn. Apr. 15, 2009) is a 1983 action against a police office for violating a prisoner’s rights.  The incident was captured on video and had been broadcast on the news, with denouncements and outcry from politicians, public figures, the Plaintiffs in the civil action and anonymous blog posters.  McRae, 1-2. 

The Defendant sought a change of venue because of the pretrial publicity.  McRae, 1-2.  The Defendant’s evidence of prejudice included a hard copy exhibit of a blog of local events.  The blog contained anonymous comments concerning the case, which the Defendant claimed prejudiced his case.  McRae, 4.

The Government opposed a transfer of venue and argued jury voir dire was the appropriate way to identify any actual prejudice to the Defendant.  McRae, 4.

Clown 1Courts can find a defendant has been prejudiced from pretrial publicity when “an inflammatory, circus-like atmosphere pervades both the courthouse and the surrounding community.” McRae, 5. 

In short, if the circus is not in town, the Court must evaluate actual prejudice against a defendant by questioning the jury pool during voir dire.

The test for a trial court to find prejudice from pretrial publicity is to review the media coverage and the prospective jurors’ statements at voir dire to decide “whether a community-wide sentiment exists against the defendant.”  McRae, 5-6, citations omitted.   

The Court held the pretrial publicity had NOT prejudiced the Defendant to warrant a transfer of venue.  While the case had a large amount of national and local press coverage, there was nothing to show a “trial atmosphere that [has] been utterly corrupted by press coverage.”  McRae, 8-9, citations omitted. 

Actual prejudice from online pretrial publicity might not be as obvious as a virtual circus in Second Life.  The analysis required to show pretrial prejudice from online coverage would probably be daunting.  A party might be required to produce search engine hits on a Defendant’s name or other case information, listserv topics, Twitter “Tweets,” comments from news websites and other online evidence to show prejudice. 

For now, the most effective way to handle any prejudice from online publicity is through questioning the jury pool to find any bias.  The Court will know a media circus when it sees one.  Until then, if you have a high profile case, be on the lookout for Casey Junior coming down the tracks.

The People Would Like to Thank the Blogger for His Jury Service

 My friends laughed hysterically when I had jury duty last year.  Apparently, the idea of a lawyer having to do his civic duty is funny.  And yes, for the record, I did wear my bow tie.

 

 During the jury selection process, my exchanged with the judge went as follows:

 

American judgeJudge: Sir, what is your career?

 

Bow Tie: I am a lawyer, your Honor.

 

Judge: I had a feeling.

 

 

 

 

 

I was told by one of the other dismissed jurors that both the prosecutor and defense counsel were shaking their heads “no” the entire time I was answering the Judge’s questions on technology in the courtroom, e-Discovery and my job experience.  The Prosecutor apparently did not like the fact I did a little criminal defense at the beginning of my career and I was promptly thanked for my service. 

 

 Litigation support software, trial presentation technology and Web 2.0 are not just impacting how we practice law today, but jury selection as well.  There is even a specialty industry forming in jury research that checks jurors’ Facebook and MySpace pages to learn more about those jurors. [1] 

 

 There have also been attempts to dismiss jurors for their blogging.  In Gregoire v. City of Oak Harbor, 2007 Wash. App. LEXIS 2929 ( Wash. Ct. App. Oct. 29, 2007 ), an attorney tried to excuse a juror for a blog.  The attorney discovered a blog written by a juror, in which the juror blogged about his experiences dealing with suicide in his job as a youth minister.

 

 During jury deliberations, trial counsel brought the blog to the trial court’s attention and asked that the juror be excused, arguing that the blog was inconsistent with the juror’s questionnaire. The juror-blogger had answered “no” to the question regarding whether he had ever been depressed or suicidal.

 

The trial court found that the blog comments regarding the juror’s encounters with suicide in his work as a youth minister were not inconsistent with the juror’s questionnaire.  Moreover, the blog did not show any bias, thus a challenge for cause would have been inappropriate.[2]   

 

 Attorneys would serve their clients well by asking prospective jurors if their blogging practices relate to any issues of the lawsuit during voir dire.  A juror’s activity on Web 2.0 might be totally harmless and not relevant to the lawsuit, but it never hurts to ask.

 


[1] Julie Kay, Social Networking Sites Help Vet Jurors, The National Law Journal, August 13, 2008, http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202423725315

 [2] Gregoire v. City of Oak Harbor, 2007 Wash. App. LEXIS 2929 ( Wash. Ct. App. Oct. 29, 2007 ),