Social media is penetrating the legal system from the courtroom to the jury room. With the power to access social media from the palm(pilot) of your hand, instances of jurors impermissibly discussing cases through “electronic communication” such as Twitter and Facebook are becoming more frequent in today’s legal system. As early as 2009, attorneys have monitored jurors’ social media use as another tool in their arsenal to overturn verdicts and move for mistrials.
In Stoam Holdings v. Diehl, the defense moved for a mistrial on the grounds that a juror researched information about the case and communicated with others outside the jury about the case when he made the following tweets:
“So Jonathan, what did you do today? Oh nothing really, I just gave away TWELVE MILLION DOLLARS of somebody else’s money.”
Shortly thereafter, the juror again tweeted about the case, this time included a hyperlink directly to the defendant’s website:
“oh and nobody buy Stoam. Its bad mojo and they’ll probably cease to Exist, now that their wallet is 12m lighter. http://www.stoam.com”
One can easily imagine the types of scenarios where this conduct could arise. A juror could post a verdict concerning their trial to their Facebook before the prosecution closes their case. They could just as easily communicate with a party through Myspace about their view of the trial. Until recently, attorneys would be required to mine through social media sites to uncover these clandestine communications. Thanks to the Florida Supreme Court, attorneys in Florida may no longer shoulder that burden.
New jury instructions adopted by the Supreme Court of Florida, which judges will pass along to jurors, instruct them not to discuss the case through “electronic communication, such as a blog, Twitter, e-mail, text message, or any other means.” Accordingly, if attorneys want to spend more time preparing their closing arguments than sifting through their jurors’ Facebook profiles, they should consider requesting the following instruction (an excerpt from Florida’s new jury instructions):
“During deliberations, jurors must communicate about the case only with one another and only when all jurors are present in the jury room. You are not to communicate with any person outside the jury about this case. Until you have reached a verdict, you must not talk about this case in person or through the telephone, writing, or electronic communication, such as a blog, Twitter, e-mail, text message, or any other means. Do not contact anyone to assist you during deliberations. These communications rules apply until I discharge you at the end of the case. If you become aware of any violation of these instructions or any other instruction I have given in this case, you must tell me by giving a note to the bailiff.
In reaching your decision, do not do any research on your own or as a group. Do not use dictionaries, the Internet, or any other reference materials. Do not investigate the case or conduct any experiments…Do not visit or view the scene of any event involved in this case or look at maps or pictures on the Internet. If you happen to pass by the scene, do not stop or investigate.
Jurors must not have discussions of any sort with friends or family members about the case or the people and places involved. So, do not let even the closest family members make comments to you or ask questions about the trial. In this age of electronic communication, I want to stress again that just as you must not talk about this case face-to-face, you must not talk about this case by using an electronic device. You must not use phones, computers or other electronic devices to communicate. Do not send or accept any messages related to this case or your jury service. Do not discuss this case or ask for advice by any means at all, including posting information on an Internet website, chat room or blog.”
CEO & Founder of Social Media Law & Order
Ethan teaches social media CLE programs to lawyers, law firms, and legal associations. He can design a one hour, half day, or full day workshop at your office, firm retreat, or conference that will be approved for both ethics and general CLE credit. Learn more about how Ethan can be your social media law keynote speaker at your next conference on topics related to social media and the law.