Michigan High Court Sends Message to Tweeters

I blogged several weeks ago about recent cases in which jurors have caused a stir by using social media such as Twitter to communicate about their jury service.  Taking the issue on proactively, the Michigan Supreme Court has adopted a new rule requiring judges to admonish jurors to not use electronic communication devices during trial, and not to use them during breaks to comment or conduct research on the case.

The new rule, which takes effect September 1, 2009, adds specific admonitions to a general statement that judges must generally instruct the jurors to base their verdict only on the evidence presented in court.

(2) The court shall instruct the jurors that until their jury service is concluded, they shall not

(a) discuss the case with others, including other jurors, except as otherwise authorized by the court;
(b) read or listen to any news reports about the case; 
(c) use a computer, cellular phone, or other electronic device with communication capabilities while in attendance at trial or during deliberation. These devices may be used during breaks or recesses but may not be used to obtain or disclose information prohibited in subsection (d) below; 
(d) use a computer, cellular phone, or other electronic device with communication capabilities, or any other method, to obtain or disclose information about the case when they are not in court. As used in this subsection, information about the case includes, but is not limited to, the following:
(i) information about a party, witness, attorney, or court officer;
(ii) news accounts of the case;
(iii) information collected through juror research on any topics raised or testimony offered by any witness;
(iv) information collected through juror research on any other topic the juror might think would be helpful in deciding the case. 

Mich. Ct. Rule 2.511(H)(2).

As I've noted before, courts have long instructed jurors to not discuss the case with others, or access news reports or other external information.  Except for the few cases in which jurors are sequestered, courts generally rely on the "honor system," trusting jurors to follow these instructions.

It makes sense, when there seem to be few boundaries on tweeting, e-mailing and blogging, to tell jurors that they must limit these activities.  Judges should also explain to jurors why such activities could imperil the trial process, by introducing evidence that does not meet the legal standards for admission.

The electronic access that jurors now enjoy is just a heightened version of the old problem of jurors considering outside information in making verdicts: one that generations of lawyers and judges have tried to address, but has never been, and will likely never be, solved.


Subject Area: 


California court proposes similar rule

An update to this post: The California Superior Court in San Fransisco has proposed that all juror questionnaires  include a cover sheet containing the following statement:

You may not do research about any issues involved in the case. You may not blog, Tweet, or use the Internet to obtain or share information.

The new rule (Proposed Rule 7.2, available here) would be effective Jan. 1, 2010.  (Note that while the rule states that the new cover sheet is available on the court's web site, it does not appear there.  The quote is from coverage of the proposal by Eric Sinrod's "Technologist" blog.)

Eric P. Robinson

Wisconsin, too

In December 2009, Wisconsin's  Criminal Jury Instructions Committee revised its model jury instructions (see Wis. J. Inst., Crim. No. 50; pdf of revised rule) to admonish jurors not to conduct their own research on cases, or to post or e-mail updates about trial proceedings. While the changes are discretionary, they are likely to be adopted by most trial judges in the state.

Florida's New Instructions

Florida has also proposed adding jury instructions specifically addressing juror use of social media during trials.  The new instructions, proposed by Supreme Court Committee on Standard Jury Instructions in Civil Cases and the Supreme Court Committee on Standard Jury Instructions in Criminal Cases,  include statements to be given to a general juror pool, and before the start of voir dire in civil and criminal trials. 

The first of the proposed instructions, to be given to the general juror pool, states as follows:

Even though you have not yet been selected as a juror, there are some strict rules that you must follow about using your cell phones, electronic devices and computers. You must not use any device to search the Internet or to find out anything related to any cases in the courthouse. ...

In this age of electronic communication, I want to stress that you must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all.  ...

All of us are depending on you to follow these rules, so that there will be a fair and lawful resolution of every case. 

In Re: Standard Jury Instructions (Civil) and (Criminal), Juror's Use of Electronic Devices, Case No. SC10-51 (Fla. proposed Jan. 14, 2010), Appendix A (pdf)

The proposed additions to the civil and criminal voir dire instructions are more specific:

... You must not do any research or look up words, names, [maps], or anything else that may have anything to do with this case. This includes reading newspapers, watching television or using a computer, cell phone, the Internet, any electronic device, or any other means at all, to get information related to this case or the people and places involved in this case. This applies whether you are in the courthouse, at home, or anywhere else. 

Proposed Civil Instruction 1.0, Preliminary Instruction, In Re: Standard Jury Instructions (Civil) and (Criminal), Juror's Use of Electronic Devices, Case No. SC10-51 (Fla. proposed Jan. 14, 2010), Appendix B (pdf), at B3.

The proposed rules are to be published in the February 15, 2010, edition of [Florida] Bar News (publication notice), with comments due March 17 and the committee's response due April 7.

Eric P. Robinson

Ohio Joins the Fray

After a Feb. 11 workshop on new media technologies and the courts (press release; coverage),  Ohio Supreme Court Justice Judith Ann Lanzinger said that the court was probably going to have to re-examine the Ohio rules on broadcasting of court proceedings.  Lanzinger added that any new rules would have to balance parties' interest in a fair trial and the First Amendment, according to the Associated Press.

Currently, Rule 12 of the Rules of Superintendence for the Courts of Ohio (pdf) generally requires judges to permit still and video camera, and radio, coverage of  proceedings that are open to the public, although victims and witnesses can object to coverage of their testimony.

Earlier in February, the Ohio Common Pleas Court in Erie County banned most cell phones from its courthouse in Sandusy.  But lawyers, judges, court personnel, law enforcement officers, and journalists are exempt: a problematic double-standard.

Eric P. Robinson