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.

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.”

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 ),