At the start of a trial, the judge usually reads to jurors general instructions about how the trial will proceed. The instructions also tell jurors how they should behave during the trial, including the admonition that they should not discuss the case with others, including both trial participants and outsiders.
But in recent years, several courts have had to deal with jurors using social media -- such as blogs and text messaging -- during trials. Although this has arisen in a surprising number of cases, so far it appears that no court has overturned a jury verdict or ordered a new trial because of such activity. [Click here for update.]
The rationale behind the standard instructions to jurors about not speaking about the case is that they shoud consider only the evidence presented in court, which must meet the rules and standards that courts impose. These jury instructions, from Arizona, are a typical exmaple of what jurors are told:
Instruct. No. 8, Preliminary Jury Instrs. (Ariz. Super. Ct., Pima County)
Do not talk to anyone about the case, or about anyone who has anything to do with it, and do not let anyone talk to you about those matters, until the trial has ended and you have been discharged as jurors. Until then, you may tell people you are on a jury, and you may tell them the estimated schedule for the trial, but do not tell them anything else except to say that you cannot talk about the trial until it is over. If someone should try to talk to you about the case, stop them or walk away.
If you should overhear others talking about the case, stop them or walk away. If anything like this does happen, report it to me or any member of my staff as soon as you can.
Despite these instructions, there have been a surprising number of recent cases in which jurors have blogged or sent and received text messages during trials. (There have also been instances of other trial participants, such as witnesses, using these communication tools during trials, and of jurors using mobile or other devices to undertake their own Internet research for a particular case. This post focuses only on jurors using social media for direct communication with the world beyond the courtroom and jury room.)
In 2001, the Massachusetts Supreme Judicial Court remanded for further inquiry by the trial court a case in which a juror, halfway through the proscution's case in a rape prosecution, had sent an e-mail to an 800-member listserv complaining about the disruption that jury duty was causing to her life, adding, "Just say he's guilty and lets [sic] get on with our lives!" Commonwealth v. Guisti, 434 Mass. 245, 747 N.E.2d 673 (Mass. 2001). On remand, the trial court questioned the juror about the e-mail, and then rejected a defense motion for a new trial. The appellate court affirmed this ruling. Commonwealth v. Guisti, 449 Mass. 1018, 867 N.E.2d 740 (Mass. 2007).
In 2006, the New Hampshire Supreme Court rejected a murder convict's effort to overturn a guilty verdict based on a juror's pre-trial blogging, in which the juror said he was going on jury duty and, "now I get to listen to the local riff-raff try and convince me of their innocence." "The meaning of the phrase 'the local riff-raff' is unclear on its face," the court wrote in its decision. "What Juror 2 meant when he used that phrase is equally unclear. While this statement would reasonably have a negative connotation, we agree with the trial court that it does not constitute sufficient grounds to set aside the jury verdicts without further inquiry." State v. Goupil, 154 N.H. 208, 908 A.2d 1256 (N.H. 2006). A federal court later rejected the defendant's habeas corpus petition based on a similar argument regarding the juror's blog postings. See Goupil v. Cattell, 2008 WL 544863, 2008 U.S. Dist. LEXIS 14774, 2008 DNH 46 (D.N.H. Feb 26, 2008).
In a 2006 California burglary trial, the jury foreperson wrote several blog entries during the trial and deliberations, including a detailed account of the jury deliberations that led to a conviction. When the blog entries were discovered, the defendant asked for a new trial. The trial court denied this request, but an appeals court ordered the lower court to allow the jurors be questioned about the incident. People v. McNeely, 2007 WL 1723711 (Cal.App. 4th Dist. 2007) (unpublished), reh'g denied (July 3, 2007), rev. denied, No. S154577 (Cal. Sept. 12, 2007). Four jurors, including the foreperson, either consented to being interviewed, or did not object. The defendant then renewed his motion for a new trial, which was again rejected by the trial court. The appeals court agreed.
Under the totality of the circumstances shown by this record, even when we factor in [Juror No. 8's] decision to write in his blog during trial on one day about matters he had been instructed not to disclose, we conclude the evidence does not raise a “substantial likelihood” that Juror No. 8 (or any other juror) was actually biased against McNeely.
Similarly, in 2007 an Ohio appeals court rejected an appeal by a defendant after a juror at his trial blogged, on the first day of trial, that "Serving on this case just goes to show how opinionated I am. " Two days later, after the jury had returned its guilty verdict, the juror wrote, "Basically, I feel like I was the only [person] playing devil's advocate and presuming this guy was innocent." State v. Goehring, 2007 WL 3227386, 2007 Ohio App. LEXIS 5169, 2007-Ohio-5886 (Ohio App., 6th Dist. 2007).
In a 2007 wrongful death case brought against a municipality after a man hung himself in the city jail, the Washington Court of Appeals rejected, among other arguments. the plaintiff's claim that a juror's blog entries about his experiences dealing with suicide in his job as a youth minister contradicted his statement during voir dire that neither he nor any close friends or family members had ever been depressed or suicidal. Gregoire v. City of Oak Harbor, 141 Wash.App. 1016, 2007 WL 3138044, 2007 Wash. App. LEXIS 2929 (Wash. App., Div. 1 2007), rev. granted in part, 164 Wash.2d 1007, 195 P.3d 86 (2008) (petition granted only on issue of jury instruction on contributory negligence and assumption of risk; oral argument scheduled for May 26, 2009).In a 2008 decision, a California appeals court affirmed a trial court ruling that a juror sending a single text message during trial, which the juror said was not about the case, was no grounds for disqualifying that juror. People v. Fulgham, No. C057526, 2008 WL 4147562 (Cal. App. 3 Dist. 2008) (unpublished), rev. denied (Cal. Nov. 19, 2008).
Other cases with juror text messaging with similar results include State v. Falcone, 2008 WL 2222728 (Ariz. App., Div. 2 2008) (juror's note asking judge to remind jurors not to text message during trial testimony is insufficient evidence that jurors did independent research); State v. Newman, 2007 ND 148, 738 N.W.2d 887 (N.D. 2007) ("there is no indication that there was any discussion about the trial during the cell phone usage [during trial breaks]"); and People v. Giarletta, 8 Misc.3d 1102(A), 856 N.Y.S.2d 25 (Table), 2007 N.Y. Slip Op. 52379(U) (N.Y. Sup. Ct. 2007, unpublished) ("it is clear that the text message [received by one juror and conveyed by that juror to other jurors] did not occur until after the rendition of the partial verdict, thereby negating any allegation that such misconduct could have created a substantial risk of prejudice that is not otherwise academic"), rev. denied, 2009 NY Slip Op 61817(U) (N.Y. App. Div., 2009) (unpublished).
More recently, in Arkansas the owners of a company facing a $12.6 million civil verdict sought a new trial after they discovered that a juror Twittered about the case before, during, and after the trial. The court denied the motion in early April.
The latest case of a juror communicating during trial came last month, when The New York Times reported that former Pennsylvania state senator Vincent Fumo, on trial for corrruption charges, sought a mistrial after a juror posted information on the case on Facebook and Twitter. The trial contined, and Fumo was convicted. See David Ardia's recent blog entry for more on this case.
Update: In another recent case, a New York woman pleaded guilty to a misdemeanor charge of attempted unlawful grand jury disclosure after she posted comments to a newspaper web site about her experience several months earlier serving on a grand jury that refused to issue an indictment in the 2007 death of a man in police custody.
As noted above, there do not appear to be any cases in which courts overturned a jury verdict or ordered a new trial because of use of social media by jurors during trial. [Click here for update.] But the increasing ubiquity of these tools may require courts and judges to be more diligent in instructing jurors and, perhaps, in monitoring their activities while serving on juries.