"Court warns on jurors’ Web use" May 14, 2012|Milton J. Valencia, Globe Staff
In
the state’s first decision involving juries and social media, the
Massachusetts Appeals Court has called on judges to better police
jurors’ use of the Internet to make sure they do not discuss cases
online, and thus risk a mistrial.
The court said judges need to do
more to explain to jurors that refraining from conversations about a
case also means not posting anything about it on Facebook or Twitter,
common practice in today’s technology-driven world.
I don't face or tweet.
“Jurors must
separate and insulate their jury service from their digital lives,’’ the
court said in a ruling involving a Plymouth Superior Court case in
which several jurors made comments on Facebook during a trial. Those
posts in turn elicited responding posts from friends.
“Instructions
not to talk or chat about the case should expressly extend to
electronic communications and social media,’’ the court added in its
little-noticed ruling two weeks ago.
The resulting directive for
better policing of social media follows a national trend, as such cases
are reaching the appellate courts. Last year in Arkansas, for instance,
that state’s high court overturned a murder conviction that carried the
death penalty after finding that a juror tweeted that a verdict was
reached before the court was notified.
Law groups, such as the
National Center for State Courts and a federal judicial conference
committee, have also drafted advisory jury instructions, to limit the
danger social media can pose to a jury’s private deliberations.
Do they inform them of the jury's right to nullification?
Meanwhile,
some surveys conducted recently - including one by the Federal
Judiciary Center that was released in March - conclude that jurors need
to be specifically told to stay away from social media sites, that a
general instruction not to discuss the case is not enough.
“It’s a
growing issue. There are ways to address it, but I don’t think anyone
has found a solution,’’ said Eric P. Robinson, deputy director of the
Donald W. Reynolds Center for Courts and Media at the University of
Nevada, Reno and a contributor to the Citizen Media Law Project, run by
Harvard University’s Berkman Center for Internet & Society.
Robinson said that judges should not only instruct a juror to not discuss the case on the Internet, but explain why.
“The
judge has to explain, ‘This is why we’re doing this, we’ll have to have
a retrial, we’ll have to spend money,’ ’’ he said. “Jurors do have a
sense of responsibility, and want to follow the judge’s instructions.’’
He
and other analysts say that people tend to instinctively post something
on Facebook, not considering it to be “discussing’’ the case. But
courts have ruled that such postings could open a juror up to outside
influences, for instance if a “friend’’ responds to a post.
“People
don’t even think that going to Facebook and posting what they’re doing
is going outside what the judge is instructing,’’ said Anthony E.
Fuller, a former federal prosecutor and a defense attorney with Collora
LLP. “The problem is, people can reply and give you information that
could be extraneous to what goes on in the courtroom. The only thing
they need to and should consider is what happens inside the bar, and the
reality is technology can pose a threat to that.’’
The
recent Massachusetts decision was based on a 2009 larceny trial in
Plymouth Superior Court. The judge had told jurors not to research the
case or discuss it with anyone, not even among themselves. To do so, the
judge warned, could result in a mistrial.
But jurors talked about
the case on Facebook. One juror began with a post that noted being on
jury duty, and received a response, “Throw the book at them,’’ according
to court records.
Later, the juror posted frustrations about the
length of the trial, and received a response, “Hopefully it will end on
Monday.’’ That response was from another juror who had “friended’’ the
first juror during the trial.
In a separate instance, a third
juror posted a Facebook item about being selected for the panel, and the
juror’s wife responded, “Just send her to Framingham [jail] quickly so
you can be home for dinner on time.’’
The juror’s friend also responded, “Tell them that you asked all your [Facebook] friends and they think GUILTY.’’
A
Superior Court judge later interviewed the jurors on an appeal of the
conviction, but found - and the Appeals Court agreed - that despite the
postings, there was no evidence that either juror was influenced by any
“extraneous matter,’’ the standard for declaring a mistrial.
However,
the Appeals Court credited the lower court judge for holding a hearing
on the matter, saying it “raised sufficient concerns to warrant further
inquiry.’’
The court also noted, “Apparently, even these
instructions were not enough to keep jurors from at least alluding to
their jury service on social media websites. More explicit instructions
about the use of social media and the Internet may therefore be
required.’’
What is also notable, legal analysts said, is that the
Facebook postings were discovered by the defendant’s attorney, an
increasing occurrence as lawyers, in some cases even judges, are
patrolling social media sites to investigate jurors.
During the
political corruption trial last year of the former House speaker,
Salvatore F. DiMasi, US District Court Judge Mark L. Wolf was told that
one of the jurors in the case had said on Facebook that his clerk looked
like Bull, a character from the old television show, “Night Court.’’
The
comment was inconsequential to the case, but Wolf pointed out the
remark in open court and reminded the jurors, as he had daily, to
refrain from discussing or researching the case, even on Facebook and
Twitter.
Pamela Wood, the state’s jury commissioner, said the
state has already developed guidelines to advise jurors not to discuss a
case. The Trial Juror’s Handbook was updated to reflect the new
instructions, though it was after the Plymouth trial. A video played to
potential jurors also mentions the guidelines.
But
Wood said the need to stress that information in the first place - and
the recent Appeals Court decision - shows that today’s jurors live in a
different world, where even a quick mention on Facebook can disrupt a
case.
“This is a burgeoning issue nationwide,’’ she said. “There
are decisions coming down all over the country related to jurors who
have used online technology to post a variety of things.’’
--more--"
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