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Apr 16, 2012

Court Disconnect: Judge Urges Jurors to Keep Off MySpace

One of the major problems with juror use of the Internet and social media -- and courts' attempts to stop it -- is the disconnect between judges and other court officials, who are generally older and less familiar with modern media tools and services, and jurors who are tech-savvy.

This gulf between "digital natives," who have grown up with such technology and routinely use it, and "digital aliens," who don't understand what all the fuss is about, is a gap not only in generations, but in outlook and sense of propriety.

This gap was on full display earlier today during jury selection in the retrial of former baseball pitcher Roger Clemens, who is accused of lying when he denied using steroids at a Congressional hearing in 2008. Clemens first trial, in 2011, ended in a mistrial after prosecutors used evidence that the judge had ruled inadmissible.

The jury questionnaire for the retrial asks jurors whether they can comply with the judge's instructions, including not discussing, reading about, or conducting their own research about the case, online or off. It also asks jurors whether they can abide by the requirement that "at no point during the course of this trial can you discuss this case over the internet, or in any other manner including, but not limited to, e-mail, text messaging, or any social networking sites such as Twitter, Facebook, and Myspace." It then asks potential jurors, "Isthere anyone who feels they could not do these things?"

During the first day of jury selection, Federal District Judge Reggie Walton explained this question to potential jurors. “There are some people that are addicted to the internet," Judge Walton said, according to the Houston Chronicle. "They have to go on the internet every day and they have to go on the internet to find out what they heard about. You can’t do that.”

“If your life is going to be virtually destroyed by being here, please check yes [to the question on the quesionnaire]," Walton continued. "Otherwise, don’t.”

Walton also explained that "[t]here’s a lot of stuff about me on the internet and half of it is totally wrong. But unfortunately, it’s there."

Be that as it may, it's certainly unfortunate that the web site that Walton used as the only example is his spoken remarks was Myspace.

While Myspace still exists -- and gets more traffic than some other social media sites -- it has lost much of its popularity since its heyday in 2007, and has been far surpassed by Facebook. (Here's a good chart of recent social media usage trends.) And it's unfortunate that Judge Walton's use of the site as the only example of a site that jurors should not visit makes him look out of touch. The Houston Press blog had some fun with this, recommending that Walton also warn jurors against using other "archaic" services such Friendster (an older social networking site which peaked in the U.S. in 2004, although it continues to be popular in Asia) and telegrams.

As I've documented on this blog, the courts have a difficult time dealing with and adapting to new technology, and have been particularly bewildered by the ever-changing and evolving Internet and social media. Comments such as Judge Waldron's have the unfortunate effect of making the courts look out of touch, and probably make "digitial natives" less likely to understand -- and heed -- admonitions against use of web sites when the examples are passé.

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