SOCIAL MEDIA AND JURY TRIALS By: Robert B. Gibson

Transcription

1 SOCIAL MEDIA AND JURY TRIALS By: Robert B. Gibson I. Ethical Issues 1. New York Rules of Professional Conduct Rule 3.5 (a)(3) a lawyer shall not communicate or cause another to communicate with a member of the jury venire from which the jury will be selected for the trial of a case. 2. New York State Bar Association s Social Media Ethics Guidelines (June 2015) - A lawyer may (1) research a prospective or sitting juror s public social media profile, and posts; (2) view the social media profile of a prospective juror or sitting juror provided that there is no communication with the juror; (3) not make misrepresentations or engage in deceit in order to be able to view the social media profile of a prospective juror or sitting juror; (4) may view or monitor the social media profile and posts of a juror during trial provided that there is no communication with the juror. 3. New York City Bar Association Formal Opinion Jury Research and Social Media - a lawyer may research potential or sitting jurors using social media services or websites, provided that a communication with the juror does not occur. 4. American Bar Association 2014 Formal Opinion 466 Lawyer Reviewing Jurors Internet Presence - a lawyer may review a juror s or potential juror s Internet presence, but a lawyer may not communicate directly or through another with a juror or potential juror. A lawyer may not send an access request to juror s electronic social media. It is not a communication in violation of Rule 3.5(b) if a juror or potential juror becomes aware that a lawyer is reviewing his/her Internet presence via a notification. In the course of reviewing a juror s Internet presence, the lawyer discovers evidence of misconduct that is criminal or fraudulent, the lawyer must take reasonable remedial measures. 5. ABA Model Rules of Prof. Conduct, Rule 1.1, Comment 8 - lawyers have a general duty to be aware of social media as a source of potentially useful information in litigation, to be competent to obtain that information directly or through an agent, and to know how to make effective use of that information in litigation. 6. Voir Dire Becomes Voir Google: Ethical Concerns of 21st Century Jury Selection (Winter 2016) 7. Implementing New York s Civil Voir Dire Law and Rules (January 2009).

2 8. Carino v. Muenzen, 2010 N.J. Super. Unpub. LEXIS 2154 (Sup. Ct. of New Jersey, App. Div., August 30, 2010). An attorney intended to use his laptop during voir dire to perform social media searches of potential jurors. The trial court barred his use of the laptop citing the lack of notice to the court and the need to be fair, as opposing counsel did not have a laptop. On appeal, the court reversed. In making his ruling, the trial judge cited no authority for his requirement that trial counsel must notify an adversary and the court in advance of using internet access during jury selection or any other part of a trial. The issue is not addressed in the Rules of Court. 9. Accessing non-public Information of Prospective Jurors. II. Is it Effective? A. The Benefits of Conducting Real-Time Research During Voir Dire 1. New York Pattern Jury Instructions 1:11 2. New York State Bar Association Social Media Jury Instructions Report (December 8, 2015) 3. Information Obtained From Facebook and Other Social Media Sites Can Significantly Inform and Influence the Selection Process. 4. Even A Simple Google Search Can Be Useful. 5. Colin K. Kelly and Aliyya Z. Haque. Twit or Tweet: A Trial Lawyer s Guide to Using Social Media Information During Trial. 55 No. 10 DRI For the Defense 22 (Oct. 2013) Many trial lawyers would argue that conducting Internet research during jury selection - including reviewing social media information posted by potential jurors - is now a fundamental component of effective client representation and advocacy. 6. Erika L. Oliver, Researching Jurors on the Internet: The Ills of Putting and the Need to Shift the Focus back to the Defendant, 34 U. La Verne L. Rev. 251 (2013). Anyone who doesn t make use of [Internet searches on jurors] is bordering on malpractice. 7. How This Process Has Transformed the Jury Selection Process. 8. Technology Brings Headaches, Help to Wash. Courtrooms, Seattle Times Dec. 4, 2011, (noting the use of ipads to track juror attendance and communication)

3 9. Internet v. Courts: Googling for the Perfect Juror. Reuters Legal. February 17, Defense attorney in a products case finds that a prospective juror posted that Erin Brockovich was one of her heroes 10. Examples from Recent Jury Trials. See Jonathan Edwards. Juror s posts about thugs, Black Lives Matter went unnoticed before Norfolk officer s trial. The Virginian-Pilot. October 22, During voir dire in a manslaughter case against a police officer, a juror stated that she never expressed an opinion about police officers or African Americans. The prosecution did not review the juror s Facebook account during voir dire or during trial. After the police officer was acquitted, the prosecution became aware of numerous Facebook posts by a juror, in which she seemingly expressed a dislike for Black Lives Matter. She also liked a book titled The War on Police. The book was about how police were demonized due to a biased news media and Black Lives Matter. In a separate manslaughter case of another police officer, the defense had their paralegals conduct social media searches on prospective jurors. B. Use of the Internet to Verify Statements Made During Voir Dire 1. Alan Feuer. Juror Imperils Conviction of Peter Liang, Ex-Officer, in Brooklyn Killing New York Times. April 13, During voir dire in a manslaughter case against a former police officer, the juror reported that none of his close relatives had ever been accused of a crime. After conviction, the juror reported that his father had served seven years in prison for an accidental shooting. The defense then uncovered the juror s pre-trial Facebook posts, which have an anti-law-enforcement flavor, including Are the police a legal gang? and What s up with the police? 2. Chelsea Rose Marcias and Stephen Rex Brown. Judge rules ex-nypd cop Peter Liang does not deserve new trial for killing Akai Gurley. New York Daily News. April 14, Johnson v. McCullough, 306 S.W.3d 551, (Mo. 2010). Medical malpractice suit. During jury selection, plaintiff s counsel asked about prior involvement in litigation by any venire member. Venire member Sims did not respond to the question and was eventually chosen to sit on the jury. After a defense verdict, plaintiff s counsel investigated Sims civil litigation history using Missouri s automated case record service, Case.net., and found that Sims had been a defendant in multiple debt collection cases and in a personal injury case. Plaintiff filed a motion for a new trial. Appellate Court found that intentional nondisclosure by juror of prior involvement in litigation warranted a new trial. The Court inferred prejudice from the intentional concealment.

4 4. Apple v. Samsung, 2012 U.S. Dist. LEXIS (N.D. Cal., 2012). Patent Infringement suit. During voir dire, a potential juror revealed that he had been employed by Seagate, a company owned by Samsung, and that he had been sued by Seagate. After a verdict in favor of Apple, Samsung moved for a new trial on the basis that the juror was dishonest. The court denied Samsung s motion for a new trial and held that the juror had disclosed his relationship with Seagate and that Samsung could have, with reasonable diligence, discovered the juror s litigation history. 5. State v. Dellinger, 696 S.E.2d 38 (W. Va. 2010). Defendant was convicted of falsifying accounts and fraud. Immediately after the verdict, the defense moved for a new trial based on juror misconduct. During voir dire, a juror had failed to disclose that she knew the defendant and had sent him a message on MySpace after she had received her jury summons, but before she reported for jury duty. On appeal, the court held that the juror s lack of candor during voir dire was grounds for a new trial. 6. Ross Cavitt. Social media, alleged prostitute at center of final hearing before Ross Harris trial. WSB-TV 2 Atlanta. September 22, After the jury pool was completed, a juror was called back after a search uncovered her Facebook post in a Justin Ross Harris Trial Watch group. She had posted that she was initially horrified about the crime, but that she didn t know all of the facts. The juror had stated that she had forgotten about her post and thought that she had left the group. The prosecution wanted her removed from the jury pool, but the judge denied the request. C. Empanelled Jurors Use of Social Media and Other Internet Sites During Trial 1. Jane Musgrave. Juror gets 8 days in jail for researching word, pushing other to lie Palm Beach Post. May 26, A juror Facebook friended another juror and wrote her messages, including a request to lie about her relationship with the judge, because he was lovestruck. The juror also performed legal research online despite being repeatedly told that jurors were barred from performing any independent research. Due to his actions, the juror was sentenced to 8 days in prison. 2. Christina Carrega-Woodby. Queens juror slapped with fine after causing mistrial by posting about case on Facebook. Daily News. November 3, During a robbery trial, a juror made numerous posts on Facebook including the following: The other jurors don t trust the police and want to outright dismiss the confessions as well as the majority of the rest of the evidence. Tomorrow is going to be a very difficult day. The juror was friends with a former prosecutor on Facebook who alerted the Court about her postings. The juror was ordered to pay a $1,000 fine and she was removed from the jury.

5 3. Shaw v. State, 139 So.3d 79 (Miss. Ct. App. 2014). Defendant was convicted of aggravated assault and mischief. During trial, defense counsel brought to the court s attention that a juror had contacted the defendant s ex-girlfriend on Facebook. A juror had also worked at the school that the defendant had attended and had posted on Facebook I guess all I need to know is GUILTY. lol. prior to trial. The trial court questioned both jurors and removed one from the jury. On appeal, the trial court denied the motion for a new trial and held that there was no good cause to believe there was an improper outside influence or extraneous prejudicial information. 4. State v. Smith, 2013 WL (Tenn. Sep. 10, 2013). During a trial for murder, a juror sent the following Facebook message to a witness who had testified: A-dele!! I though you did a great job today on the witness stand. I was in the jury. Not sure if you recognized me or not!! You really explained things so great!! The witness brought the message to the attention of the trial judge, and the trial judge declined to have the witness examined. The jury convicted the defendant. On appeal, the court held that the trial court must insure that the verdict relies solely on evidence introduced at trial. 5. Sluss v. Commonwealth, 381 S.W.3d 215 (Sup. Ct. of Kentucky, 2012) Appellant's failure to demonstrate in his motion for a new trial why this evidence could not be discovered prior to the verdict is excusable since there was little reason for him to think he needed to investigate a juror's Facebook account or that he even could have done so ethically given the state of the law at the time of trial. 6. Ken Struin. Social Media Misbehavior by Jurors Afflicts Trial Process. New York Law Journal. March 15, Four areas of juror misconduct: (1) uncovering facts about the case or researching legal principles by using the internet or visiting virtual crime scenes; (2) publishing information about a trial via Twitter or Facebook; (3) contacting or friending parties, witnesses, lawyers or judges through social media; and (4) premature deliberation, e.g., via texting or , or broadcasting internal decision making. D. Uncovering Facts About the Case or Researching Legal Principals 1. Nicolaou v. Martin, 2016 Pa. Super. LEXIS 784 (2016). Medical Malpractice suit alleging failure to timely diagnose Lyme Disease. The plaintiff was treated by various providers from 2001 for 2008 for an unknown condition, although she reported being bit by a tick in She was improperly diagnosed with multiple sclerosis and her symptoms did not subside. In 2009, she presented to a nurse who diagnosed her with Lyme disease, but recommended that she undergo a blood test to confirm

6 her diagnosis. The plaintiff did not undergo the blood test until early 2010, some seven months after the recommendation. The blood test confirmed her diagnosis. Upon confirmation, the plaintiff posted on Facebook that she had been telling everyone for years that she was suffering from Lyme disease. Almost exactly two years later, in 2012, the plaintiff filed suit. The court held that the discovery rule (i.e., the statute of limitations is tolled when an injury or its cause was not known or reasonably knowable) did not apply because the plaintiff s Facebook post was evidence that the plaintiff could have known of her diagnosis in 2009 and could have proven her diagnosis at that time. As such, her suit was dismissed because the statute of limitations expired in City of New York v. Exxon Mobil Corp., 739 F. Supp. 2d 576 (S.D.N.Y. September 10, 2010). Products liability case involving groundwater contamination. Jury found in favor of Exxon Mobil. Post-trial motion by Exxon, in part, because a mistrial should have been granted because a juror impermissibly conducted research on the internet. Court held that a new trial was not warranted solely because the jury was exposed to extrinsic information. Courts must apply an objective test focusing on two factors: (1) the nature of the information at issue; and (2) its probable effect on the average jury. Since Juror No. 8 was immediately excused after the Court learned of the juror s misconduct, the Court held that the jury was not exposed to evidence that would prejudice the average juror. ** It should be noted that the Court also determined that even though two other jurors performed extra-judicial research it was de minimus and did not merit a new trial. John Schwartz. As Jurors Turn to Web, Mistrials Are Popping Up. New York Times. March 18, A juror in a federal drug case admitted to conducting Internet research during the case. Moreover, upon questioning the jury panel, the judge determined that eight other jurors had done the same. The judge declared a mistrial after eight weeks of trial. E. Publishing information about a trial via Twitter or Facebook 1. Juror Facebook posts could impact $2 million verdict awarded to man strip-searched by Milwaukee cop. The Associated Press. December 12, After a verdict for the plaintiff in a civil rights case against a police officer, defense counsel uncovered Facebook posts by a juror that were made during trial and he had shared a post by an anti-police activist. The defense moved for a new trial. 2. Twitter/Facebook Postings By Jurors See Greene and Speath, Feature: Are Tweeters or Googlers in Your Jury Box? State Bar Of Arizona (February 2010). Admonishing jurors not to discuss the case outside the deliberation room is certainly not new. It seems, however, that many jurors do not see

7 blogging, tweeting or posting as communication, or at least they don't consider it to fall within the rubric of traditional admonitions. 3. In a California felony trial, the judge admonished the jurors orally and in writing to not discuss the case. Nevertheless, a juror (who was an attorney) blogged about the trial, stating, "Nowhere do I recall the jury instructions mandating I can't post comments in my blog about the trial. (Ha. Sorry. will do)." The Court of Appeals vacated the judgment, and the California State Bar suspended the juror Ebony Nicolas, Note And Recent Development: A Practical Framework For Preventing "Mistrial By Twitter." 28 Cardozo Arts & Ent LJ 385 (2010). a. Recent Examples of Improper Juror Tweets that Resulted In Mistrial. Specifically, Arkansas Personal Injury Case from February 2009 in which a juror tweeted "I just gave away TWELVE MILLION DOLLARS of somebody else's money." F. Contacting or friending parties, witnesses, lawyers or judges through social media 1. Mascarella v. CPlace Univ. SNF, LLC, 2015 U.S. Dist. LEXIS (2015). Because merely being friends on Facebook does not per se, establish a close relationship from which bias or partiality on the part of a juror may reasonably be presumed. 2. People v. Rios, Index No. 1200/06, (Sup. Ct., Bronx Cty., February 23, 2010). Defendant was convicted by a jury of arson after trial. After the jury verdict, the People informed the court and defense counsel, by letter that a juror attempted to contact one of the firefighter witnesses through Facebook, a social networking web site. Defendants filed a motion pursuant to CPLR (2) seeking a hearing on the alleged misconduct. After the hearing, the Court determined that the juror misconduct did not result in prejudice to the defendant. III. Can and Should Courts Restrict the Practice? A. How to Protect Against Juror Misconduct 1. Oracle America v. Google, 2016 U.S. Dist. LEXIS (2016). Attorneys for both parties requested two days to review a two-page jury questionnaire to perform background and social media searches of potential jurors. United States District Judge William Alsup of the Northern District of California was concerned that (1) the jury could learn

8 of counsel s searches and in turn, research the case; (2) counsel would make improper personal appeals to particular jurors via jury arguments and witness examinations and (3) the Court desired to protect the privacy of the venire. Judge Alsup proposed that the attorneys voluntarily consent to not perform Internet searches before and during trial in exchange for 40 more minutes of voir dire. If they did not voluntarily consent to the ban, Judge Alsup would order that the attorneys would inform the venire of the specific extent of their Internet searches, be prohibited from explaining away their searches on the ground that they had to do it because their adversary was doing it, be precluded from making calculated personal appeals, and they would have to preserve every search. Counsel for Oracle America and Google voluntarily agreed to the ban. 2. United States v. Ganias, 755 F.3d 125 (2d Cir. 2014). After the defendant was convicted of tax evasion and fraud, the defendant moved for a new trial based on Facebook postings by a juror, before, during, and after trial. The trial court held an evidentiary hearing and heard testimony from the juror who explained that his postings were a joke and that he considered the case fairly and impartially. The trial court denied the motion and the defendant appealed. On appeal, the court held that the trial court properly inquired into the matter and found the juror to be credible, therefore, there was no violation of the Sixth Amendment Right to an Impartial Jury. The Third Circuit has endorsed the use of jury instructions before, during, and at the close of trial to better protect against the use of social media by jurors. 3. Jameson Cook. Juror ordered to write essay about Sixth Amendment for Facebook posting. Macomb Daily. September 9, Spencer Weiner. Jurors who tweet and Google cases could face hefty fines. Los Angeles Times. April 24, Proposed California law would allow judges in certain counties to impose fines of up to $1,500 on jurors for Internet and social media violations during trial. 5. Matthew Aglialoro. Criminalization of Juror Misconduct Arising from Social Media Use. Notre Dame Journal of Law, Ethics & Policy (2015). Criminalization could impede the trial judge's ability to inquire into the misconduct as the alleged "bad juror" can refuse to incriminate themselves by responding to the judge's inquiry. 6. Omni Healthcare Inc., et al. v. Health First Inc., et al., 6:13-cv (M.D. Fla. 2016). In an antitrust matter, the Court prohibited attorneys from using the Internet during voir dire. After an attorney was caught using the Internet, he was fined $500 for his failure to comply with the court s order. 7. New York State Bar Association s Social Media Ethics Guidelines (June 2015) - In the event that a lawyer learns of possible juror misconduct,

9 whether as a result of reviewing a sitting juror s social media profile or posts, or otherwise, she must promptly bring it to the court s attention. 8. New York State Bar Association s Social Media Jury Instructions Report (December 2015) - To revise Pattern Jury Instructions 1:10 and 1:11 to specify the types of electronic devices (iphone, ipad, Android, etc.) and websites (Google, Bing, Facebook, LinkedIn, Instagram, Snapchat, etc.). 9. Meaghan Dunn. Juror s and Attorney s Use of Social Media During Voir Dire, Trials, and Deliberations Federal Judicial Center. May 1, Based on a survey of 494 federal judges, 130 prohibit the use of social media during voir dire and 6 reported that a juror divulged confidential information about a case. 10. Jury charges that admonish and explain the reasons for social media embargoes. ** There needs to be uniformity across all counties and trial parts. ** Proposed Model Jury Instructions The Use of Electronic Technology to Conduct Research on or Communicate about a Case. ** The admonition should be specific enough to cover Twitter and other forms of social media, internet research, , text messages, and "traditional" forms of communication such as conversations, or reading, watching, or listening to the news. However, the instruction should be broad enough that jurors understand what exactly is being limited - namely, prejudice and access to information that is not presented at trial - so they don't exploit any loopholes that may remain after describing specific prohibitions. See Ebony Nicolas, Note And Recent Development: A Practical Framework For Preventing "Mistrial By Twitter." 28 Cardozo Arts & Ent LJ 385 (2010). 11. Social media background checks See Mark Barry, M.D. v. Medtronic, Inc., Case No. 1:14-CV-104 (E.D. Tex. Oct. 2016). The District Court provided a list of potential jurors to counsel and issued guidelines on the use of social media to research jurors. The Court prohibited the parties from communicating with any potential juror, from sending an access request to a potential juror, and from performing a search that would notify the juror of same, such as viewing the juror s LinkedIn profile. If the prohibitions were violated, the Court stated that it could sanction, refer the attorney to the State Bar, or institute criminal proceedings against an attorney. 12. Self-policing by jurors See City of New York v. Exxon Mobil Corp., 739 F. Supp. 2d 576 (S.D.N.Y. September 10, 2010).

10 See Russ Mitchell. Judge denies Christensen s new trial bid. The Daily Reporter. December 7, During trial, the jury foreman became aware of a local reporter s Facebook post in which he suggested that residents might riot if the jury failed to convict the defendant of murder. The jury convicted the defendant and the defense moved for a new trial. The trial judge questioned the jurors and they had conflicting answers as to what was said, when it was said, and by whom it was said. The motion was denied because the defense could not reach the required objective standard for a new trial.