Courts are increasingly becoming aware -- and wary -- of jurors using social media and other Internet tools to communicate to or from the courthouse during trial and / or deliberations.
Juror use of this media may take several forms: jurors conducting independent research on the case on the Internet; sending e-mails, text messages, Tweets or other communication conveying developments in a trial or deliberations; or using the camera feature of mobile technology to record courtroom proceedings.
In response to this growing concern -- and a growing number of mistrials in some cases due to improper juror use of technology -- several states have adopted or proposed rules or statutes which would explicitly limit such activity by jurors.
The goal of this post, which will be updated as developments warrant, is to compile these rules. Contributions of such rules that I have missed are welcome (email eric at blowlawonline.com).
A federal district court judge declared a mistrial in a complex drug prosecution after discovering that 10 of the 12 jurors had done independent Internet research on the case. U.S. v. Frank Hernandez, Crim. No. 07-60027 (S.D. Fla. mistrial declared March 10, 2009). (Details.)
In late January 2010 the U.S. Judicial Conference — which sets policies for all federal courts except the Supreme Court — sent all federal district judges suggested jury instructions on "juror use of electronic communication technologies" during trial. (Details.) Some circuit courts already had included instructions on Internet use (see 9th Cir. Civ. J. Inst. 1.12 and 9th Cir. Crim. J. Inst. 1.9).
Individual federal courts' jury instructions:
- 8th Cir.: "Fifth, do not read any news stories or articles about the case, or about anyone involved with it, or listen to any radio, television or Internet reports about the case or about anyone involved with it. [In fact, until the trial is over I suggest that you avoid reading any newspapers or news journals and listening to any television, radio or Internet newscasts. ... Sixth, do not do any research or make any investigation on your own about any matter involved in this case. By way of examples, that means you must not consult a dictionary, textbook or encyclopedia, go to the Internet or consult any other source for information about some issue or person in this case. ... Seventh, cell phones are not permitted in the jury room during deliberation." 8th Cir. Model Civil Jury Inst. 1.05. For some reason, the model criminal instructions include the Internet only the "sixth" provision, and do not include to cell phone ban. 8th Cir. Model Crim. Jury Inst. 1.08.
- 9th Cir.: The Ninth Circuit was among the first federal appellate courts to have jury instructions on Internet use. 9th Cir. Civ. J. Inst. 1.12 includes "e-mail, text messaging, or any Internet chat room, blog, [and] Web site[s]" in its admonition against jurors discussing the case prior to deliberations, and also explains that "The law requires these restrictions to ensure the parties have a fair trial based on the same evidence that each party has had an opportunity to address. A juror who violates these restrictions jeopardizes the fairness of these proceedings[, and a mistrial could result that would require the entire trial process to start over]" (brackets in original to indicate optional text). 9th Cir. Crim. J. Inst. 1.9 contains the same language.
Arizona's civil jury instructions, last revised in 2005, includes only one reference to the Internet, in the jury admonition. The criminal instructions, updated in 2009, include a much more extensive discussion of juror use of the Internet and social media.
"Do not do any research or make any investigation about the case on your own. Do not view or visit the locations where the events of the case took place. 'Research' includes doing things such as looking up words in a dictionary or encyclopedia, or using treatises or similar sources with respect to any of the issues involved in the case. Research also includes searching on the internet or using other electronic devices to obtaininvformation. The reason for this is that you have to base any decision on the evidence that is produced here in the courtroom." -- Rev. Ariz. Jury Inst. (Civ.) 4th (2005), Prelim. Inst. No. 9 (emphasis added)
"Each of you has gained knowledge and information from the experiences you have had prior to this trial. Once this trial has begun you are to determine the facts of this case only from the evidence that is presented in this courtroom. Arizona law prohibits a juror from receiving evidence not properly admitted at trial. Therefore, do not do any research or make any investigation about the case on your own. Do not view or visit the locations where the events of the case took place. Do not consult any source such as a newspaper, a dictionary, a reference manual, television, radio or the Internet for information. If you have a question or need additional information, submit your request in writing and I will discuss it with the attorneys.
Do not talk to anyone about the case, or about anyone who has anything to do with it, and do not let anyone talk to you about those matters, until the trial has ended, and you have been discharged as jurors. This prohibition about not discussing the case includes using e-mail, Facebook, MySpace, Twitter, instant messaging, Blackberry messaging, I-Phones, I-Touches, Google, Yahoo, or any internet search engine, or any other form of electronic communication for any purpose whatsoever, if it relates in any way to this case. This includes, but is not limited to, blogging about the case or your experience as a juror on this case, discussing the evidence, the lawyers, the parties, the court, your deliberations, your reactions to testimony or exhibits or any aspect of the case or your courtroom experience with anyone whatsoever, until the trial has ended, and you have been discharged as jurors. Until then, you may tell people you are on a jury, and you may tell them the estimated schedule for the trial, but do not tell them anything else except to say that you cannot talk about the trial until it is over.
One reason for these prohibitions is because the trial process works by each side knowing exactly what evidence is being considered by you and what law you are applying to the facts you find. As I previously told you, the only evidence you are to consider in this matter is that which is introduced in the courtroom. The law that you are to apply is the law that I give you in the final instructions. This prohibits you from consulting any outside source.
If you have cell phones, laptops or other communication devices, please turn them off and do not turn them on while in the courtroom. You may use them only during breaks, so long as you do not use them to communicate about any matter having to do with the case. You are not permitted to take notes with laptops, Blackberries, tape recorders or any other electronic device. You are only permitted to take notes on the notepad provided by the court. Devices that can take pictures are prohibited and may not be used for any purpose. ..."
Rev. Ariz. Jury Inst. (Crim.) 3rd (2009), Prelim. Inst. 13 (emphasis added)
California's Civil Jury Instruction 100 (pp. 63-64 of pdf), which is to be given at the outset of every civil case, includes the following admonitions:
... Do not post any information about the trial or your jury service on the Internet in any form. Do not send or accept any messages, including e-mail or text messages, to or from anyone concerning the trial or your service. ...
Do not do any research on your own or as a group. Do not use dictionaries, the Internet, or other reference materials. Do not investigate the case or conduct any experiments.
The criminal jury instructions include similar provisions:
Do not share information about the case in writing, by email, or on the Internet. ... During the trial, do not read, listen to, or watch any news report or commentary about the case from any source.
Do not do any research on your own or as a group. Do not use a dictionary, the Internet, or other reference materials. ...
If you have a cell phone or other electronic device, keep it turned off while you are in the courtroom and during jury deliberations. An electronic device includes any data storage device. If someone needs to contact you in an emergency, the court can receive messages that it will deliver to you without delay.
Crim. Jury Inst. 101 (p. 84 of pdf)
In January 2008, a Superior Court judge held a juror who had blogged during trial in contempt. But the judge did not impose a penalty after determining that the blogging did not result in an unfair trial.
As of Jan. 1, 2010, the California Superior Court in San Fransisco requires that all juror questionnaires include this cover sheet, containing the following statement: "You may not do research about any issues involved in the case. You may not blog, Tweet, or use the Internet to obtain or share information." See S.F. Super. Ct. Rule 7.2, available here. (Details.)
Colorado's Jury System Standing Committee is currently considering the adoption of rules regarding juror use of social media. See Minutes of Feb. 18, 2010 meeting.
The draft rules, to be read to all potential jurors, are as follows:
- If you have a cell phone, pager or personal digital assistant, please turn it off while in the courtroom and during jury deliberations. Remember you are not allowed to communicate with anyone via any means about what is happening in the trial for the duration of the proceeding until a verdict is announced in court.
- During the course of the trial do not conduct independent research, view or listen to media reports, or access any information via the Internet or using any electronic tool, regarding this case, its participants, this type of case, or any related subject matter.
Both the civil and criminal jury instructions in Connecticut -- which state judges may use, but are not required to use -- admonish jurors not to use the Internet during trial.
The civil instructions provide:
You may not perform any investigations or research or experiments of any kind on your own, either individually or as a group. ... Do not look anything up on the Internet concerning information about the case or any of the people involved, including the parties, the witnesses, the lawyers, or the judge. ... Do not go to the scenes where any of the events that are the subject of this trial took place or use Internet maps or Google Earth or any other program or device to search for or view any place discussed during the case. ...
The same thing is true of any media reports you may come across about the case or anybody connected with the case. If you do come across any reports in the newspaper or a magazine, on TV, or any Internet site or "blog," you may not read or watch them because they may refer to information not introduced here in court or they may contain inaccurate information. ...
You may not communicate to anyone any information about the case. This includes communication by any means, such as text messages, email, Internet chat rooms, blogs, and social websites like Facebook, MySpace, YouTube, or Twitter.
Conn. Civ. Jury Inst. 1.1-1.
This language is duplicated in the criminal jury instructions. See Conn. Crim. Jury Inst. 1.2-10.
The instructions also include clear, concise explanations of the reasons behind the limits on use of social media.
District of Columbia
The Florida Supreme Court has joined the handful of other states that have officially changed their standard jury instructions to account for new technologies such as Twitter, Facebook and text messaging. The changes were first proposed by the court several months ago. See
The revised criminal instructions state in part,
... In this age of electronic communication, I want to stress that you must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, about your jury service. You must not disclose your thoughts about your jury service or ask for advice on how to decide any case.
After you are called to the courtroom, the judge will give you specific instructions about these matters. A judge will tell you when you are released from this instruction. All of us are depending on you to follow these rules, so that there will be a fair and lawful resolution of every case.
In September 2010, a Florida appeals court ordered a new trial in a manslaughter conviction where the jury foreman searched online for the definition of "prudence" -- used in the jury instructions -- during a break in deliberations and shared the definition with other jurors. Tapanes v. State, — So.3d —, 2010 WL 3488709 (Fla.App. 4 Dist. Sept. 8, 2010). "Although here we confront new frontiers in technology, that being the instant access to a dictionary by a smartphone, the conduct complained of by the appellant is not at all novel or unusual," the appeals court wrote in its opinion. "It has been a longstanding rule of law that jurors should not consider external information outside of the presence of the defendant, the state, and the trial court."
In January 2010, a Florida appeals court rejected a trial judge's restrictions on use of a laptop by a reporter for live blogging of a murder trial. See Morris Publ. Co. v. Florida, No. 1D10-226 (Fla. App. Jan. 20, 2010). But the trial judge re-imposed the same restrictions, holding that the reporter's use of the laptop was a distraction.
In March 2010, the Atlanta Journal-Constitution reported that the Georgia state courts were drafting jury instructions that will prohibit communicating about cases online, and discouraging jurors from doing independent online research. In February, a Fulton county judge declared a mistrial and fined a juror $500 for doing online research during a rape case.
In 2009 the Hawaii Supreme Court amended its standard criminal jury instructions to specifically address juror use of the Internet and social media.
The criminal instructions now include the following provisions:
1. Do not talk to anyone, including your fellow jurors, friends or members of your family about anything having to do with this trial, except to speak to court staff. This means that you must not discuss this case with anyone until the verdict is received or you are excused from jury service. No discussion also means no e-mailing, text messaging, tweeting, blogging or any other form of communication. ...
6. Because of the requirement that your verdict must be based only on the evidence received in the courtroom and instructions on the law, you must not read, listen to or watch any news reports about this trial, if there are any, regardless of whether the report is from the newspaper, radio, television, internet or any other source.
7. Do not research this case on your own or as a group by using a dictionary, encyclopedia, map or reference materials, including online or other electronic sources. You are not permitted to search the Internet, for example, using Google, or any other search engine or web site to look for information about this case or about the participants in the trial. ... The Court understands that in your daily life it may be a common occurrence for you to look for more information about a product or an event, but the moment you try to gather information about this case or the participants, is the moment you contaminate the process you promised to uphold.
8. Do not share information, opinions or anything else about this case with others, personally or in writing, or through computers, cell phone messaging, personal electronic and media devices and other forms of wireless communications. This includes, for example, communication about this case through e-mail, instant messaging, tweeting, text messaging, or using the Internet in any way. Also, do not post or look at information about this case on a blog, forum, social network site, chat room, discussion board or any other web site.
9. If you have a cell phone or other electronic device, keep it turned off while you are in the courtroom. ...
Hawaii Pattern Jury Inst., Crim., No. 2-01 (rev. 2009).
In December 2010, the Idaho Supreme Court's Media/Courts Committee began considering use of new telecommunications devices in the state's courtrooms.
Neither Idaho's civil nor criminal jury instructions currently mention the Internet or social media, although the state's Handbook for Jurors states that jurors"may not discuss the case with anyone during the course of the trial" (para. 5, p. 7); and that they "are not allowed to read, watch, or listen to media stories relating to the trial to which they are assigned" (para. 6, p. 7).
Most members of the Media/Courts Committee apparently agree that webcams and cell phone cameras are covered by Idaho Court Administrative Rule 45, which sets out the rules for audio and visual coverage of court proceedings in the state.
Indiana has amended its jury instructions, effective July 1, 2010, banning juror use of electronic devices. The new rules read as follows:
The court shall instruct the jurors before opening statements that until their jury service is complete, they shall not use computers, laptops, cellular telephones, or other electronic communication devices while in attendance at trial, during discussions, or during deliberations, unless specifically authorized by the court. In addition, jurors shall be instructed that when they are not in court they shall not use computers, laptops, cellular telephones, other electronic communication devices, or any other method to:
(1) conduct research on their own or as a group regarding the case;
(2) gather information about issues in the case;
(3) investigate the case, conduct experiments, or attempt to gain any specialized knowledge about the case;
(4) receive assistance in deciding the case from any outside source;
(5) read, watch, or listen to anything about the case from any source;
(6) listen to discussions among, or received information from, other people about the case; or
(7) talk to any of the parties, their lawyers, any of the witnesses, or members of the media, or anyone else about the case, including posting information, text messaging, email, Internet chat rooms, blogs, or social websites.
Ind. Jury Rule 20(b) (eff. July 1, 2010).
The new rules also provide for the court to collect electronic devices from jurors during deliberations:
The court shall instruct the bailiff to collect and store all computers, cell phones or other electronic communication devices from jurors upon commencing deliberations. The court may authorize appropriate communications (i.e. arranging for transportation, childcare, etc.) that are not related to the case and may require such communications to be monitored by the bailiff. Such devices shall be returned upon completion of deliberations or when the court permits separation during deliberations. Courts that prohibit such devices in the courthouse are not required to provide this instruction. All courts shall still admonish jurors regarding the limitations associated with the use of such devices if jurors are permitted to separate during deliberations.
Ind. Jury R. 26(b) (eff. July 1, 2010).
The Indiana Supreme Court adopted the new rules after it considered a case in which a juror took a cell phone call during deliberations. In its decision, the court wrote:
Ms. Henri presented her claim of error due to the juror's cell phone use in her motion to correct error. It was denied by the trial court, which concluded that "[n]othing about these events comprise[s] misconduct in any form." On appeal, Ms. Henri has not established that the alleged receipt of a cell phone call with the apparent approval of the bailiff constituted misconduct, and has shown neither gross misconduct nor probable harm. Reversal and a new trial are not warranted on this issue.
We additionally observe that permitting jurors, other trial participants, and observers to retain or access mobile telephones or other electronic communication devices, while undoubtedly often helpful and convenient, is fraught with significant potential problems impacting the fair administration of justice. These include the disclosure of confidential proceedings or deliberations; a juror's receiving improper information or otherwise being influenced; and a witness's or juror's distraction or preoccupation with family, employment, school, or business concerns. These and other detrimental factors are magnified due to swift advances in technology that may enable a cell phone user to engage in text messaging, social networking, web access, voice re-cording, and photo and video camera capabilities, among others. The best practice is for trial courts to discourage, restrict, prohibit, or prevent access to mobile electronic communication de-vices by all persons except officers of the court during all trial proceedings, and particularly by jurors during jury deliberation.
Henri v. Curto, No. 49S02-0812-CV-641,slip op. at 6-7, 908 N.E.2d 196 (Ind. June 17, 2009).
The Maryland Court of Special Appeals has reversed two jury verdicts because of social media use by jurors during trial. In Wardlaw v. State, No. 1478/07, 185 Md.App. 440 (Md. Ct. Special App. May 8, 2009), a unanimous, three-judge decision concluded that the trial court's failure to question the jurors about the influence of a juror's Internet research required a reversal. A different three-judge panel of the same court reached the same conclusion in Allan Jake Clark v. State of Maryland, No. No. 0953/08 (Md. Ct. Special App. Dec. 3, 2009) (unreported; listed here). (Details.)
The November 2009 corruption trial of Baltimore mayor Sheila Dixon in Baltimore Circuit Court was covered by several bloggers and Tweeters. Once Dixon was convicted, she initially asked for a new trial because five jurors had become friends and discussed the case on Facebook. Dixon then reached a plea agreement that included her resignation. The court then imposed a blanket ban on "the use of any device to transmit information on Twitter, Facebook, Linked In or any other current or future form of social networking from any of the courthouses within the Circuit Court for Baltimore City." (Details.)
In October 2009, the state's Standing Committee on Rules of Practice and Procedure voted against adopting a proposed state-wide rule that would have generally banned most cell phones and other electronic devices from courthouses (except for court and law enforcement personnel, and jurors), limiting their use in courtrooms, and banning them entirely from jury deliberation rooms. But at the request of Robert M. Bell, chief judge of the Maryland Court of Appeals, the issue is to be raised again at the committee's March 5, 2010 meeting (agenda and supporting documents; details).
In Sept. 2009, the Michigan Supreme Court revised its court rules to require judges to admonish jurors in civil cases to not use electronic communication devices during trial, and not to use them during breaks to comment or conduct research on the case. See Mich. Ct. Rule 2.511(H)(2) (p. 118 of pdf). (Details.) This led to revisions in the state's Model Civil Jury Instructions (pdf), which now provide:
(3) While you are in the courtroom and while you are deliberating, you are prohibited altogether from using a computer, cellular telephone, or any other electronic device capable of making communications. You may use these devices during recesses, but even then you may not use them to obtain or disclose the kind of information I will describe next. ...
(6) You must not do any investigations on your own or conduct any experiments of any kind. This includes using the Internet for any purpose regarding this case.
Mich. Civ. J. Inst. 2.06
In September 2010, a Michigan juror was removed from the jury in a criminal trial and punished for contempt after posting a message on Facebook during trial stating, "actually excited for jury duty tomorrow. It's gonna be fun to tell the defendant they're GUILTY." Macomb County Circuit Court Judge Diane Druzinski found the juror, Hadley Jons, guilty of contempt of court, and ordered her to pay a $250 fine and to write an essay about the constitutional right to a fair trial.
In 2007, the Missouri Supreme Court revised the state's civil jury instructions to admonish jurors not to conduct Internet research:
(8) JUROR RESEARCH PROHIBITED
Your decision must be based only on the evidence presented to you in the proceedings in this courtroom. You should not conduct your own research or investigation into any issues in this case. You should not visit the scene of any of the incidents described in this case. You should not conduct any independent research of any type by reference to textbooks, dictionaries, magazines, the use of the Internet or any other means.
Mo. Amend. Inst. Civil No. 2.01, as modified in In re Revisions to Mai-Civil, (Mo. May 1, 2007), slip. op. at 6.
Further revisions to Missouri's civil jury instructions proposed in November 2009 directly address juror use of social media:
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.
According to this Grand Island Independent article, many judges are extending Nebraska's general prohibition on broadcasting of trial court proceedings to new technologies such as cell phones. See Neb. Sup. Ct. Rule § 2-118. But some trial courts in Nebraska have adopted rules allowing camera coverage of proceedings under an "expanded media coverage" pilot program.
In State of New Jersey v. Scott, 2009 N.J. Super. Unpub. LEXIS 1901 (N.J. App. Div. July 20, 2009), certif. denied, 2009 N.J. LEXIS 1370 (N.J., Nov. 9, 2009), the Superior Court of New Jersey, Appellate Division, reversed the convictions of three cousins on aggravated manslaughter charges because of a juror's apparent Internet research. (Details.)
But in Carino v. Muenzen, 2010 WL 3448071 (N.J.Super.A.D. Aug. 30, 2010) (unpublished), an appeals court declined to reverse a jury verdict in a medical malpractice case in which the judge barred plaintiff's counsel from using the courthouse's free wifi to "google" prospective jurors during voir dire, holding that it gave that attorney an unfair advantage. In rejecting the trial judge's rationale, the appeals court held,
Despite the deference we normally show a judge's discretion in controlling the courtroom," we are constrained in this case to conclude that the judge acted unreasonably in preventing use of the internet by Joseph's counsel. There was no suggestion that counsel's use of the computer was in any way disruptive. That he had the foresight to bring his laptop computer to court, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of "fairness" or maintaining "a level playing field." The "playing field" was, in fact, already "level" because internet access was open to both counsel, even if only one of them chose to utilize it.
Nevertheless, we have concluded that Joseph has not demonstrated any prejudice resulting from the trial court's ruling.
New Mexico’s criminal jury instruction on juror conduct, which already included the Internet in the admonition to avoid coverage of the case, was amended effective March 25, 2011 to give more specifics about prohibited activities online.
… You must decide the case solely upon the evidence received in court. You must not consider anything you may have read or heard about the case outside the courtroom. During the trial and your deliberations, you must avoid news accounts of the trial, whether they be on radio, television, the internet or in a newspaper or other written publication. You must not visit the scene of the incident on your own. You cannot make experiments with reference to the case.
You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in this case, and the individuals or corporations involved in the case. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Do not try to find out information from any source outside the confines of this courtroom.
Until you retire to deliberate, you may not discuss this case with anyone, even your fellow jurors. After you retire to deliberate, you may begin discussing the case with your fellow jurors, but you cannot discuss the case with anyone else until you have returned a verdict and the case is at an end. I know that many of you use cell phones, the internet, and other tools of technology. You also must not talk to anyone about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone or any other device that can access the internet through email, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, such as __________ (insert current examples of social networking sites, such as Facebook, My Space, LinkedIn, or YouTube).
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, computer, or any other device that can access the internet; the internet, any internet service, or any text or instant messaging service; or any internet chat room, or by way of any other social networking websites, such as __________ (insert current examples of social networking sites, 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.
N.M. Uniform Jury Instr. – Crim. [NMUJI – Crim.] 14-101 (2011)
The recess instruction for criminal trials was similarly amended. See NMUJI – Crim.14-114 (2011).
New York's Criminal Jury Instructions (pdf) tell jurors that they "must not use internet maps or Google Earth or any other program or device to search for and view any location discussed in the testimony;" to not read accounts or discussions of the case "by newspapers, television, radio, the internet, or any other news media;" and to not research the case "in a library or on the internet, or by any other means or source."
The preliminary instructions conclude with the following admonition:
In this age of instant electronic communication and research, I want to emphasize that in addition to not conversing face to face with anyone about the case, you must not communicate with anyone about the case by any other means, including by telephone, text messages, email, internet chat or chat rooms, blogs, or social websites, such as Facebook, MySpace or Twitter.
You must not provide any information about the case to anyone by any means whatsoever, and that includes the posting of information about the case, or what you are doing in the case, on any device, or internet site, including blogs, chat rooms, social websites or any other means.
You must also not Google or otherwise search for any information about the case, or the law which applies to the case, or the people involved in the case, including the defendant, the witnesses, the lawyers, or the judge.
The instructions then admirably explain why these restrictions are necessary.
Northern Marianas Islands
After a Feb. 11, 2010 workshop on new media technologies and the courts (press release; coverage), Ohio Supreme Court Justice Judith Ann Lanzinger said that the court was probably going to have to re-examine the Ohio rules on broadcasting of court proceedings. Earlier in February, the Ohio Common Pleas Court in Erie County banned most cell phones from its courthouse in Sandusky. But lawyers, judges, court personnel, law enforcement officers, and journalists are exempt: a problematic double-standard. (Details.)
In May 2010, the Ohio Bar Association revised the Admonition to its jury instructions to cover not only the Internet and social media, but also to caution jurors against using notions of the law gleaned from popular television programs:
2. WARNING ON OUTSIDE INFORMATION. In addition, you absolutely must not try to get information from any other source. The ban on sources outside the courtroom applies to information from all sources such as family, friends, the Internet, reference books, newspapers, magazines, television, radio, a computer, a Blackberry, iPhone, smart phone, and any other electronic device. This ban on outside information also includes any personal investigation, including visiting the site, looking into news accounts, talking to possible witnesses, re-enacting the allegations in the (Complaint)(Indictment), or any other act that would otherwise affect the fairness and impartiality that you must have as a juror.
3. WARNING ON OUTSIDE INFLUENCE. The effort to exclude misleading outside influences information also puts a limit on getting legal information from television entertainment. This would apply to popular TV shows such as Law and Order, Boston Legal, Judge Judy, older shows like L.A. Law, Perry Mason, or Matlock, and any other fictional show dealing with the legal system. In addition, this would apply to shows such as CSI and NCIS, which present the use of scientific procedures to resolve criminal investigations. These and other similar shows may leave you with an improper preconceived idea about the legal system. As far as this case is concerned, you are not prohibited from watching such shows. However, there are many reasons why you cannot rely on TV legal programs, including the fact that these shows: (1) are not subject to the rules of evidence and legal safeguards that apply in this courtroom, and (2) are works of fiction that present unrealistic situations for dramatic effect. While entertaining, TV legal dramas condense, distort, or even ignore many procedures that take place in real cases and real courtrooms. No matter how convincing they try to be, these shows simply cannot depict the reality of an actual trial or investigation. You must put aside anything you think you know about the legal system that you saw on TV.
4. WARNING ON OUTSIDE CONTACT. Finally, you must not have contact with anyone about this case, other than the judge and court employees. This includes sending or receiving e-mail, Twitter, text messages or similar updates, using blogs and chat rooms, and the use of Facebook, MySpace, LinkedIn, and other social media sites of any kind regarding this case or any aspect of your jury service during the trial. If anyone tries to contact you about the case, directly or indirectly, do not allow that person to have contact with you. If any person persists in contacting you or speaking with you, that could be jury tampering, which is a very serious crime. If anyone contacts you in this manner, report this to my bailiff or me as quickly as possible.
In January 2010, a trial judge rejected a criminal defendant's motion to prohibit "tweeting" from the courtroom during a public corruption trial.
In August 2010, a federal judge declined to dismiss a lawsuit brought by a expelled student who claimed that the university disciplinary hearing that led to his expulsion was procedurally defective because one of the witnesses against him and a student member of the board hearing the case were Facebook friends. Furey v. Temple University, Civ. No. 09-2472 (E.D. Pa.) (Aug. 3, 2010)
According to this article, Virginia's jury instructions contain a provision relating to social networking.
In July 2010, the Dansville, Va. News & Advance willingly provided the registration information for an anonymous web commenter who claimed to have been a juror in a murder case, and who wrote that the jurors had reviewed the slain woman's personal journal, despite a court ruling that jurors should not have access to the journal. The revelation led to a new trial in the case.
West Virginia's jury instructions currently do not include a provision specifically dealing with juror use of the Internet and other new technologies, the West Virginia Supreme Court of Appeals has noted that such an instruction may be a good idea.
Currently, West Virginia's Criminal Jury Instructions provide as follows:
2.11 NO DISCUSSION
You must not discuss this case among yourselves at any time either here in the courtroom or beyond the courthouse. You must wait until the trial is concluded and you have been asked to retire to your jury room to consider your verdict.
2.12 FORM NO OPINION
Do not make up your mind or form any opinion as to the guilt or innocence of the defendant until the trial is concluded and you have heard all of the evidence, the instructions of law and the argument of counsel. This defendant comes before you presumed to be innocent, with a clean slate, and you must keep that presumption throughout this trial.
2.13 AVOID OUTSIDE DISCUSSION
You are not to discuss this case with anyone other than the other members of this jury during deliberations. Do not even discuss this case with members of your own family or your friends.
2.14 NO INVESTIGATION
Do not make any kind of a private investigation, do not conduct any experiments and do not do any research. You may only consider the evidence that is introduced in this case.
2.15 NO MEDIA
Do not read any newspaper article or story or listen to any news coverage or watch any TV coverage that deals with this trial.
The state's standard civil jury instructions (available here in draft form) apparently do not have any provisions regarding juror discussions or access to external information.
On June 3, 2010, the West Virginia Supreme Court of Appeals reversed the conviction of a deputy sheriff for misconduct regarding grants he administered and ordered a new trial, based on the fact that a juror in the case had not disclosed her relationship to the defendant and to two of the witnesses. The court also called for trial judges to instruct jurors regarding use of the Internet during trial. State v. Dellinger, No. 35273 (W.Va. June 3, 2010).
The juror and the defendant had formerly lived in the same apartment complex, and approximately one week before trial the juror -- using a pseudonym -- invited the defendant to become friends on MySpace, which the defendant accepted. When the trial judge subsequently asked the juror why she did not disclose this during voir dire, she said that "I just didn't feel like I really knew him. I didn't know him personally." The trial court found that the juror's "contact with [Appellant] was minimal, and she was a fair and impartial juror," but the appeals court disagreed.
[A]s demonstrated by the facts set forth above, Juror Hyre intentionally and repeatedly failed to be forthcoming about her connections to Appellant and witnesses Frame and Slaughter, arguably, in order to improve her chances of serving on Appellant's jury. Whatever her reasons for doing so, she cannot be considered to have been indifferent or unbiased. Accordingly, we find that the trial court abused its discretion in denying Appellant's motion for new trial.
In a footnote, the appeals court states that a general instruction to jurors regarding use of social media may be prudent:
[W]e also believe some cautionary words are warranted concerning the prominent presence of the internet and routine use of and dependence upon various technologies by everyday Americans called to jury service.
As noted above, West Virginia's jury instructions currently do not contain such a provision.
In December 2009, Wisconsin's Criminal Jury Instructions Committee revised its model jury instructions (see Wis. J. Inst., Crim. No. 50; pdf of revised rule) to admonish jurors not to conduct their own research on cases, or to post or e-mail updates about trial proceedings. While the changes are discretionary, they are likely to be adopted by most trial judges in the state.