The judicial system will be busy creating new law concerning the phenomenon of jurors texting, tweeting and googling while serving on the jury. Creating new jury instructions is the easy part. Enforcing such instructions and deciding what to do when a juror does not follow them or what to do with a trial that is tainted because of the same, is the real daunting task. One thing is clear, courts across the country are moving towards banning all electronic communications from the jury.
For example, in late January this year, the Judicial Conference released to the federal judiciary a model jury instruction which has been coined the “Twitter instruction” that states:
“You may not communicate with anyone about the case on your cell phone, 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, My Space, LinkedIn and YouTube.”
There are no nationwide jury instructions for state courts. Each state adopts its own set of jury instructions.
On September 1, 2009, the Michigan Supreme Court imposed a new rule that will require all judges to instruct jurors that use of any handheld device such as iPhones or Blackberrys while in the jury box or during deliberations is impermissible. As follows, when such devices are banned, communications such as tweets on Twitter, Google searches, Facebooking and text messages by jurors during trial will come to a halt for Michigan jurors and those jurors in jurisdictions with similar instructions.
Michigan’s new rule arrives in the wake of an influx of recent cases in which jurors have blogged, posted Tweets, sent text messages or updated their Facebook during trials, resulting in the dismissal of jurors, mistrials and angry judges. These results will keep the courts busy creating law for years to come. Specifically, when these mishaps occur should a mistrial be granted? Should the offending juror be excluded? To date, courts have really gone either way with these issues.
For example, in March 2009, during a Florida drug trial it was discovered that nine jurors were ignoring the judge’s instructions and conducting Google research on the defendant, checking legal terms and uncovering evidence that was excluded at trial. The result, the judge declared a mistrial. Further, in Florida, a Miami-Dade Court Judge declared a mistrial in May 2009 in a civil fraud case after a company executive witness texted his superior on the stand during a side bar conference.
In contrast, in Pennsylvania, a mistrial was not declared although called for, when a juror was discovered tweeting and publishing trial updates on Facebook in the prosecution of a former Pennsylvania state senator convicted of graft. In Arkansas, a judge in April 2009 ruled that there was no mistrial when a juror’s Twitter posting stated, “just gave away TWELVE MILLION DOLLARS of somebody else’s money.” The judge upheld the $12.6 million dollar verdict finding that the tweets were not improper although done in poor taste.
Jurors are supposed to deliberate cases based on evidence presented at trial in the courtroom and not based on independent research via the web. Those rules are clear. However, how far can a juror go and what standard will the courts use to determine when a juror has gone so far as to taint the whole process. This has yet to be developed into a consistent body of law and this new area of law is ripe for development.