Two members of a Macomb County, Michigan, jury posted updates to Facebook while the trial was still being heard late last month. Before the jury had reached a verdict, the foreman had indicated online that he was considering a sentence and was already predisposed to a verdict.
“Not cool a young man is dead another young man will be in prison for long time maybe,” the jury foreman, Harvey Labadie, wrote in one post.
Such posting constitutes inappropriate communication during deliberations and a possible violation of the defendant’s right to a fair trial and impartial jury, and the jurors’ actions nearly led to a mistrial for Terry Wilson, who was indicted and ultimately sentenced to a mandatory life sentence for first-degree murder.
The incident with the Michigan jurors is just one example of improper social media use in the courtroom. Another could be seen in Little Rock, Arkansas, in January, when a juror in a kidnapping and rape case vented about her exhaustion on Facebook — despite being explicitly instructed to not use Facebook or Twitter during the trial. The juror’s actions triggered contempt charges against her and a mistrial motion. In Palm Beach County, Florida, meanwhile, three jurors sitting on two separate civil trials could face six-month sentences for repeatedly violating trial instructions to refrain from social media use.
While the use of social media during deliberation presents a potential constitutional crisis in regards to protecting an individual’s right to a fair trial, attempts to monitor or curtail in-trial social media use present a potential invasion of privacy — which is why many judges have been hesitant to take action in this regard. During the Jodi Arias murder case, for instance, the defense was denied a motion for the jurors to surrender their Twitter account information to the court so that the jurors’ tweets could be monitored.
“At any given moment, jurors now have the ability to use their cellular telephones to browse the web for the names of attorneys or parties in a case, educate themselves through Wikipedia.org about the technology underlying a patent claim or medical condition, examine an intersection using Google Maps, or even blog and update their friends about a case through Facebook and Twitter,” wrote Amanda McGee in her 2010 law review article “Juror Misconduct in the Twenty-First Century: The Prevalence of the Internet and Its Effect on American Courtrooms.”
In April, the American Bar Association, the nation’s primary accreditation body for the law community, decided to issue a formal ruling regarding attorneys’ rights toward viewing jurors’ social media activity during juried proceedings. Per the ABA, it is now considered ethical for lawyers to examine jurors’ publicly-available social media profiles and histories.
However, the attorneys are only allowed privy to the jurors’ outward-facing profiles. The ABA has also warned lawyers against actively “following” or “friending” jurors or acting in a manner toward gaining access into private online presence of a juror.
This decision has implications beyond investigating juror misconduct, though. Attorneys can now use social media posts during jury selection. An attorney, for example, can look at a potential juror’s past posts to determine whether she had expressed views or statements that might suggest that she would be inclined to hold viewpoints favorable for a positive verdict. This could uncover potential conflicts that might not have been unearthed during direct questioning.
The decision can also be construed as an attempt to make someone’s private life public. While Twitter and Facebook posts are part of the public domain, it can be argued that a user creates any given post with the intent that it will only be seen by those the user shares it with. In other words, most posts are created and intended to be read by those with more than a cursory interest in the writer, suggesting an intended level of privacy.
However, as social media expands as part of the communication portfolio, the privacy expectations of social media are being challenged. A growing number of researchers and journalists actively mine the Twitter “Firehose,” the collection of all active Twitter public streams, to take the pulse of certain keywords or trends at a given point in time or time period. While privacy laws exist to protect social media users, the use of third-party surveying — such as Google AdSense, which presents customized ads based on the user’s online activities, and the growth of social network mining companies, which can create a personal profile of a targeted individual based on the individual’s online presence — has led many to at least somewhat expect that their social media activity will eventually become public knowledge.
Prior to the ABA ruling, many lawyers used mining companies to create profiles of potential jurors or to quietly monitor jurors during a trial. At least two state bar associations had addressed this issue before the ABA made its ruling. Through a decision of the Missouri Supreme Court, the state requires potential jurors to be vetted by the state’s lawsuit tracker, and Oregon, in an opinion last year, allows lawyers to track potential jurors on social media, as long as the lawyer does not “friend” or “follow” the jurors.