Trick or Tweet? How About a Mistrial?

Thank you jurors, please leave your blackberries and iPhones outside the courtroom doors!

I have wanted to do a course on the electronic courtroom now for about six months – but of course, something always seems to come up and I haven’t been able to start writing the course. And I have seen no less than three articles in the last week commenting on the topic (thanks to the Judicial Conference and Time Magazine article). So I guess for now, the topic will remain blog fodder for you to chew on.

The reason the topic interests me so much is because the sanctity of the jury system and the right to a fair trial is again under assault by our new digital technologies and activities. Facebook, Twitter, Wikipedia – social networking, microblogging and easily accessible online resources have slowly crept into the courtroom and may force fundamental changes to our legal system.

In our new Information Age, how can we expect to sequester off juries from the outside world in order to uphold the fairness of our legal system? Everyday seems to bring a new trial that is tainted by Twittering jurors – and now even defendants are getting into the act. What’s next? Judges getting in trouble for “friending” defense attorneys? Oh wait …. that already happened in Florida.

This latest push to preserve our legal system comes from the Judicial Conference who just released model jury instructions in January that specify new protocol for juror conduct in our:

“You may not communicate with anyone about the case on your cellphone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, MySpace, LinkedIn and YouTube.”

Bottom line: Drop that blackberry Juror #21!

In a January memo, U.S. District Judge Julie Robinson of Kansas, the chair of the Judicial Conference Committee on Court Administration and Case Management, told the informed the nation’s judges that the new jury instructions “address the increasing incidence of juror use, of such devices as cellular telephones or computers, to conduct research on the internet or communicate with others about cases.”

In the memo, Robinson told fellow judges that “more explicit mention in jury instructions of the various methods and modes of electronic communication and research would help jurors better understand and adhere to the scope of the prohibition against the use of these devices.”

But will jury instructions really be enough? Do jurors even listen to them in the first place, let alone heed putting down that iPhone in their right hand that they are just dying to jump online and share crucial legal details on their Facebook page?

Last year a federal drug trial in Florida ended in a mistrial when eight jurors admitted to doing research on the case they were hearing. In March 2009, there was also a call for a mistrial in the prosecution of Vincent Fumo — although unheeded — when a juror was discovered tweeting and publishing trial updates on Facebook when the former Pennsylvania state senator was convicted of a graft. Even the litigants have been caught tweeting red handed, as separate stories in the Detroit News and Pittsburgh Tribune-Review identify defendants who opted to microblog mid-trial. And in another case, a juror sent a Facebook friend request to a witness.

Further complicating the issues, there are no uniform instructions for state courts because each state is free to adopt its own set of jury instructions. For instance, Florida is recommending that judges instruct jurors “that they cannot perform outside research using the internet, or use electronic devices to communicate about the case,” multiple times throughout the proceeding

Wait until video clips from a trial shows up on YouTube because one of the jurors shot secret video from their iPhone!