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Jul 7, 2009

Michigan High Court Sends Message to Tweeters

(cross posted at the Citizen Media Law Project)
I blogged several weeks ago about recent cases in which jurors have caused a stir by using social media such as Twitter to communicate about their jury service.  Taking the issue on proactively, the Michigan Supreme Court has adopted a new rule requiring judges to admonish jurors to not use electronic communication devices during trial, and not to use them during breaks to comment or conduct research on the case.

The new rule, which takes effect September 1, 2009, adds specific admonitions to a general statement that judges must generally instruct the jurors to base their verdict only on the evidence presented in court.
(2) The court shall instruct the jurors that until their jury service is concluded, they shall not
(a) discuss the case with others, including other jurors, except as otherwise authorized by the court;
(b) read or listen to any news reports about the case; 
(c) use a computer, cellular phone, or other electronic device with communication capabilities while in attendance at trial or during deliberation. These devices may be used during breaks or recesses but may not be used to obtain or disclose information prohibited in subsection (d) below; 
(d) use a computer, cellular phone, or other electronic device with communication capabilities, or any other method, to obtain or disclose information about the case when they are not in court. As used in this subsection, information about the case includes, but is not limited to, the following:
(i) information about a party, witness, attorney, or court officer;
(ii) news accounts of the case;
(iii) information collected through juror research on any topics raised or testimony offered by any witness;
(iv) information collected through juror research on any other topic the juror might think would be helpful in deciding the case. 
Mich. Ct. Rule 2.511(H)(2).

As I've noted before, courts have long instructed jurors to not discuss the case with others, or access news reports or other external information.  Except for the few cases in which jurors are sequestered, courts generally rely on the "honor system," trusting jurors to follow these instructions.

It makes sense, when there seem to be few boundaries on tweeting, e-mailing and blogging, to tell jurors that they must limit these activities.  Judges should also explain to jurors why such activities could imperil the trial process, by introducing evidence that does not meet the legal standards for admission.

The electronic access that jurors now enjoy is just a heightened version of the old problem of jurors considering outside information in making verdicts: one that generations of lawyers and judges have tried to address, but has never been, and will likely never be, solved.

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