Posted on: 8/7/2012
Robert B. Gibson, Jesse D. Capell
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Widespread misuse of Internet technology by sitting jurors is threatening to destabilize the modern jury trial process. Examples of jurors who have openly defied court-ordered prohibitions on social media and Internet use abound. Medical malpractice lawsuits are far from immune from this predicament. Contemporary jurors, outfitted with smart phones and tablet computers can, with one virtual click, ascertain the standard of care for treating an infection, or view video footage of a laparoscopic appendectomy on YouTube. If juror misconduct is not sufficiently addressed, trial attorneys will find that they have lost control over the scope of evidence upon which jurors base their verdicts.
To preserve the integrity of the trial process, trial attorneys must be cognizant of the various ways in which jurors are abusing social media and electronic communications. The improper use of Internet technology by jurors during a trial generally falls into three categories: (1) uncovering facts about the case or researching legal principals; (2) publishing information about a trial on Twitter or Facebook; and (3) contacting or sending “friend” requests to parties, witnesses, or members of the court. Litigators must be prepared to combat this trend at every turn.
Juror Use of the Internet to Conduct Independent Research
In Re MTBE Products Liability Litigation, a trial court in the Southern District of New York confronted a juror who had conducted extrajudicial research during the course of the trial. 739 F. Supp. 2d 576 (S.D.N.Y. 2010). In this case—where the City of New York sued various gasoline manufacturers for groundwater contamination—shortly after the jury had been charged, the foreman informed the court that Juror No.8 had admitted to the other jurors that he had conducted his own Internet research, and that his research had strengthened his views about the case.
The trial judge promptly examined the offending juror, who admitted that he had researched the following: (1) prior jury verdicts; (2) a prior opinion from the court describing plaintiff’s theory of causation; and (3) information about one of the plaintiff’s lawyers. Juror No. 8 initially remarked that “everybody” was doing it. Juror No. 8 was removed from the jury and the jury awarded the City approximately one hundred and four million dollars in damages. The defendant then made a post-trial motion for a new trial, in part, due to Juror No. 8’s misconduct.
In determining whether Juror No. 8’s behavior warranted a mistrial, the trial judge observed that the court must apply an objective test, which focuses on two factors: (1) the nature of the information or contact at issue, and (2) its probable effect on a hypothetical average jury. In denying the defendant’s application for a mistrial, the court held that: "Juror No. 8, who clearly obtained improper information during Phase III deliberations was immediately excused after the court learned of his misconduct. The jury brought this fact to my attention soon after they became aware of it and the remaining jurors appeared candid and forthcoming in answering my questions about the information they had learned. Although Juror No. 8 initially painted a picture of a jury that was engaging in rampant outside research, his assertion that 'everybody was doing it' was nothing more than the defensive tactic of a juror looking for cover after he had been caught with his hand in the proverbial cookie jar. When he and the other jurors were questioned further, it became apparent that the limited information Juror No. 8 had communicated to them was decidedly vague." 739 F. Supp. 2d at 611.
Blogging About the Trial During Deliberations
Jurors have also misused social media during trials by publishing information to the outside world through the Internet. See Greene and Speath, Feature: Are Tweeters or Googlers in Your Jury Box? ARIZ. ATT’Y (February 2010). Recent research indicates that—despite being instructed not to discuss the case in public—jurors are continuing to “tweet” or “blog” about developments related to the trial. Apparently, many jurors do not consider blogging, tweeting, or posting to be acts of communication that fit within traditional juror admonitions.
An illustration of this type of behavior occurred in a recent California criminal trial. In this case, the offending juror was not a typical lay juror; the culprit was actually a licensed attorney! Although the trial judge warned the jurors orally and in writing not to discuss the case with anyone, the instigating attorney-juror could not help but blog about the progression of the trial. At one point, he wrote: "Nowhere do I recall the jury instructions mandating I can't post comments in my blog about the trial. (Ha. Sorry. will do)." The juror continued to post updates about the trial during deliberations. Unfortunately for the juror’s professional aspirations, when his improprieties were ultimately revealed, the California Court of Appeals vacated the judgment, and the California State Bar suspended his law license for 45 days. See Greene and Speath.
Further instances of this type of reckless behavior are emerging throughout the country. See Ebony, Nicolas, Note and Recent Development: A Practical Framework for Preventing "Mistrial by Twitter." 28 CARDOZO ARTS & ENT. L.J. 385 (2010). During a personal injury case in Arkansas, one brazen juror “tweeted,” “I just gave away TWELVE MILLION DOLLARS of somebody else's money.”Although the juror’s misconduct was subsequently disclosed to the court, a mistrial was not declared because Arkansas law did not prohibit jurors from leaking information to the outside world. After the appeal proceedings, the juror retorted “the courts are just going to have to catch up with the technology.”
Contacting Witnesses or Parties Using Social Media
Finally, jurors can abuse social media by electronically contacting the parties or witnesses. In People v. Rios, an arson trial that was held in Bronx County, New York State Supreme Court in 2010, the jury convicted several of the defendants of criminally negligent homicide. Index No. 1200/06 (Bronx Cty. Sup. Ct., February 23, 2010). After the verdict, one of the jurors admitted that, shortly after the deliberations began, she sent a Facebook “friend request” to one of the firefighter witnesses who had testified during the trial. Although she did not receive a response to her initial “friend request,” the juror (not to be deterred) re-sent the “friend request” to the same firefighter after the jury had rendered its verdict. The firefighter witness eventually accepted the juror’s invitation, and the two began an email correspondence. After the juror’s misconduct was revealed to the court, a post-trial hearing was held to determine whether a mistrial was warranted.
The court ultimately held that there was no evidence that the defendants had been substantially prejudiced by this misconduct. The court specifically found that the defendants failed to prove that the juror’s feelings for the firefighter affected the jury’s deliberations. Accordingly, the court resolved that a mistrial was not warranted.
One major lesson to draw from these cases: Courts will not automatically declare a mistrial the moment juror misconduct is revealed. Trial attorneys must be able to articulate to the court exactly how jurors’ improper behavior adversely impacted their clients’ position. Moreover, a court must find that juror misconduct undermined the integrity of the jury’s verdict.
How to Protect Against Juror Abuse
Trial attorneys should consider monitoring the social media websites of sitting jurors. Generally speaking—provided that an attorney does not communicate (or cause another person to communicate) with the juror—ethical rules do not prohibit trial attorneys from viewing the Facebook pages or blog sites of empanelled jurors. The benefits of ongoing monitoring of a sitting juror were realized in Johnson v. McCullough, a medical malpractice lawsuit. 306 S.W.3d 551, 558-59 (Mo. 2010). After a defense verdict was rendered, plaintiff’s counsel investigated a juror using an Internet search provider, and learned that the juror had withheld pertinent information at the outset of the case. The Supreme Court of Missouri ultimately held that a mistrial was warranted in light of the juror’s misconduct.
Trial attorneys must also be prepared to provide judges with up-to-date jury instructions regarding the prohibition of using social media and Internet technology during the trial. The 2012 edition of the New York State Pattern Jury Instructions (PJI) is extremely thorough on this point; it identifies the most recent technological devices and social media portals and it explains to jurors that they may not perform any independent research about any of the facts adduced during the trial, including any “Internet search of any kind.”
In addition, in December 2009, the Judicial Conference Committee on Court Administration and Case Management (JCC), a committee composed of various federal judges, issued its own proposed instructions. The JCC suggested that judges warn jurors about using social media and electronic communications at the outset of the trial, and again before deliberations. Furthermore, the proposed instructions explain that jurors may not use "any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, BlackBerry or computer; the Internet, any Internet service, or any text or instant messaging service; or any Internet chat room, blog or website such as Facebook, My Space, Linked In, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict." The Judicial Conference Committee on Court Administration and Case Management—The Use of Electronic Technology to Conduct Research on or Communicate About a Case. December 2009.
The penalties for jurors who ignore court rules about the use of Internet technology are becoming increasingly severe. Late last year, the State of California made it a misdemeanor for jurors to engage in “Willful disobedience . . . of a court admonishment related to the prohibition on any form of communication or research about the case, including all forms of electronic or wireless communication or research.” See Cal. Code of Civil Procedure § 1209(6). California’s new law also requires court officers to bar jurors from communicating outside the jury room, by electronic or other means, during deliberations. See Cal. Code of Civil Procedure § 613.
Given the ubiquity of juror misuse of electronic communications, it is inevitable that other states will adopt California’s aggressive stance. Indeed, a juror in a Texas personal injury case was recently sentenced to two days of community service after he sent a Facebook friend request to one of the parties. See Eder, Steven. Jurors' Tweets Upend Trials Lawyers Are Using Posts on Twitter and Facebook to Overturn Court Rulings. http://www.WSJ.com (published online on March 5, 2012).
It is incumbent on trial attorneys to vigilantly protect against juror abuse of social media and related technology. As the technology industry continues to manufacture sophisticated portable electronic devices, jury instructions should be continuously updated to reflect the latest products. Litigators should contemplate tracking online activity by jurors and immediately notify the court when they suspect that jurors are violating the rules. When juror misconduct does occur, attorneys need to demonstrate to trial judges that the abuse has worked to the detriment of their clients.
Robert B. Gibson
Jesse D. Capell
Heidell, Pittoni, Murphy & Bach, LLP
99 Park Avenue
New York, NY 10016