~J

I ,

There can be no doubt that instant electronic communications and the advent of social media ate facts of daily life today especially for those under the age of 35. In the United States at the end of 2009, there were over 285 million cell phone subscribers according to CITA-The Wireless Association. Facebook, the leading social media site, claims, according to the New York Times, to have almost 500 million members worldwide-22 percent of everyone on the Internet.

Facebook, ofcourse, is only one of the social media sites. Wikipedia , the online encyclopedia, list over 300 major active social networking websites ranging from sites that focus on African-Americans (8 lack Planets with 16 million members), to music and pop culture (Buzznet), and even those of a very specialized nalure such as one for those who knit and crochet (Ravelry with 788,000 members).

While these new social media phenomena are very recent-for example Facebookwas created in 2005 and Tw-itter in 2006,-they along with the older processes of e-mail messages and texting have already generated troll bling issues for trial courts trying to assure fair trials for the parties before them. A sampling:

• In Fresno, California, a Superior Court Judge found himself sitting aaa juror on a murder case, and was, indeed, designated to be the Foreman. Throughout the trial, the juror-judge sent e-rnails to his 22 coHeag1Jes on the bench, including the judge presiding over the case, giving them periodic updates on the progress of the case. His first e-mail announced: "Here I am, livin' the dream, jury duly

MARYLANO BAR JOURNAL

November 2010

with Mugridge [the defense lawyer] and Jenkins [the prosecutor]." After conviction, counsel for the Defendant discovered the e-rnails and has moved for a new trial,

• In a state-court civil trial in Arkansas, a $2.6 million verdict in favor of investors against a building material company was. attacked because the company alleges a ju ror sent eight messages or "tweets" via his cellular phone to his "followers" about lhe tria]. According to the Arkansas Online news site, one of the "tweets" read: "oh and nobody buy 5[03111 {the building material at issue], Its bad mojo and they'll probably cease to exist, now that their wallet is ]2 m lighter."

• In England, a juror was dismissed from a child abduction and sexual assault trial after she posted details of the case on her Facebook page, including her reactions 10 the testimony. At one point, she solid led the views of her Facebcok "friends", telling them; "I don't know which way to go, so I'm holding a poll." Luckily, her actions were discovered before deliberations began, and she was dismissed as a juror.

• Closer to home, Maryland's Court of Special Appeals, in an unreported opinion, overturn ed a (131- ony-rnurder conviction because a deliberating juror conducted an on-line search for the terms "Iivor mortis" and "algor rnorlis" on '1\Iikipedia, printed out the pages, and brought them in to the jury r-oom. The juror's action was discovered when the jury bailiff found the print-outs in the jury

room after the jurors were-excused for the day. When asked about it, the juror said, "To me that wasn't research. It was a definition,"

• Last December, in a trial I presided over, the convict-ion of the Mayor of Baltimore City in a political corruption case was challenged after the verdict when it was learned that during. the trial and deliberations five of the jurors had "friended" each other on Pacebook and engaged in discussions posted on their pages that the defensealleged were not in accord with the court's explicit instructions to not engage in discussions about the case on social media sites.

Problems Presented by Jurors

The problems presented by jurors using social media and Ihe internet continue to arise with greatfrequency and courts and lawyers will need to carefully evaluate how to r-eact in a way that will continue to ensure fair trials based only on the evidence presented in the courtroom. but also recognizes that we will not be returning 10 an era when all phones were land tine, home computers did not exist, and where the principal vehicle for jurors to acquire bias was the daily newspaper, We will also not revert to the day when a juror had to go out of his way to commit juror misconduct by taking a special trip 10 the reference section of the local library or detouring on the way home to visit the scene of a crime or accident.

The bench and bar must recognize that jurors with electronic devices can now instantaneously obtain a wealth of information-cor misinfor-

mation, and are able to communicate with virtually anyone on earth with a few strokes on the keypad of a cell phone, I-Pad or laptop. In a second or two, they can access a wealth of internet sites on any subject or visit any intersection or address mentioned in the case on Google Earth or Google Maps.

For example, I goggled the term "cause of disc herniation" a frequent issue in auto accident cases and in 0.18 seconds, 278,000 results of widely varying quality were returned and available for instant review. In such a world, one can understand the temptation for a juror faced with confusing testimony or a lack of explanations about terms used in a trial to tum to the means they use in their daily life to ob tain inforrna ti a n-i n tern et searches or use of social media sitesj What can the bench and bar do to deal with this brave new world of Internet access and social media communication? Here are some suggestions:

1. Better education of prospective jurors

We should inform prospective jurors in the first information they receive from the courts before reporting for service that restrictions will be placed on their access to information and communications while serving. We should also caution them not to do any research in advance on the cases they might be calJed to sit on or to speculate about what cases they be called to sit on.

2. Juror Orientation

Du ring orientation on the first day of jury service, written and oral instructions should be given to jurors about not doing any Internet research or discussing their jury service with others until it is completed. The orientation

films used should contain a section on this subject and the reasons why the rule is important.

3. Jury Selection

During jury selection, the judge should consider asking whether prospective jurors lise the Internet and social media sites and whether they 'would be able 10 abide by the nec-essary restrictions during trial. If a trial is going to be lengthy or high-profile, the questioning should be more detailed and particular.

4. Introductory Instruction

In every trial, an introductory instruction should be given to the jury informing them of the rules regarding outside contacts and the use of social media. This is one 1 drafted after looking at other proposals from around the country:

You as jurors must decide this case based solely on the evidence presented in this courtroom. The evidence you will consider for this case has been reviewed by the parties and the court, and is the evidence that is relevant to this case and the issues you must decide.

You must not conduct on your own any research or investigation about the case or the individuals involved in it. Any information YOLl obtain outside the courtroom could be misleading, inaccurate, or incomplete. Relying on this information is unfair because the parties would not have the opportunity to refute, explain OJ' correct it.

You may not consult any dictionaries or reference materials. You should not search the Internet, web sites, blogs, or any other source for infermarion about the case or the persons involved in the case.

Places or locations may be mentioned, but YOLl should not visit any

place or location related to the case. You should also not seek any information about the place or location on the Internet or through web sites such as MapQuest or Goggle maps.

Until you retire to deliberate and decide this case, you may not discuss this case with anyone, even your fellow jurors. You should not express any opinion about the case or talk about the case with anyone, including courtroom personnel, spectators or anyone participating in the trial,

Most, if not all, of YOLl use cell phones, Blackberries, smart phones or computers to communicate with family, friends, co-workers or others. During this trial, you cannot communicate to anyone any information about this case, or your opinions or views about it or the individuals participating in it by any method or means.

You may also be involved in social media or networking sites such as Facebook, MySpace, Linked ln, YouTube or Twitter, and be accustomed to frequently communicating your views, observations or opinions on these sites. During this trial, you must not use these sites to communicate anything about this case or the individuals participating in it.

[urors should be reminded of this instruction frequently during the trial, before any recess and particularly when the jury separates at the end of the day. The MSBA's Maryland Pattern Jury Instruction Committee of which I am a member is currently drafting an instruction on this subject for dissemination to the bench and bar which will be available shortly.

5. Judge and Lawyer AWareness

In the new environment of juror access to instant Tnforrnation and communication, judges and lawyers

November 2010

MARYlANO BAR JOURNAL

hould be aware that placing information before jurors in an incomplete or haphazard fashion will understandably tempt even conscientious jurors to seek outside information to complete the picture. While we should strictly instruct jurors to resist the temptation, it is prudent for counsel to prepare their cases to answer the obvious questions that will arise. Judges should prompt counsel to consider answering the obvious questions presented instead of leaving them open.

For example, in a case I had, a question arose about how far two addresse in Howard County were from each other. Several witnesses were asked about this during their testimony and gave estimates that varied widely since it seemed no one had prepared the witnesses to answer the question with any precision. On n1y laptop at the bench, I pu t the two addresses into the Mapquest site and received the very precise answer it provided. I called c unsel to the bench showed them the result and they readily agreed to stipulate to the jury that the distance given on the Mapquest site was the distance in fact.

Obviously, the judge must be careful not to become an advocate for one side or the other, but prompting couns I to have witnesses fully explain technical or scientific terms or to present their cases with an eye to the information that is readily available to jurors by a click of their smartphones is well within the judicial role. Counsel should prepare their cases with awareness of what jut I'S who are use to instantly

btainlng information on any subje t from the worldwide web may expect and plan their presentations and exam inations accord ing1y.

48

MARYLAND BAR JOURNAL

November 2010

6. Questions by Juror

During the trial, there shouJd be some opportunity for jurors to bring any question or issue that is of major concern to them to the attention of counsel and the court. The issue can be vetted by the court and counsel, and can ei h r be addre s d by th parties or the judge can explain to the jury why the question cannot be answered. This procedure has been successfully introduced in other states and federal courts such as the U.S. District Courts in the U. S. Court of Appeals for the Seventh Circuit. See, s.£.c. v. Koenig, 557 F.3d 736 (7th Cil'. 2009) for discussion of the procedures used in the Seventh Circuit and an explanation of why it is better for the court t listen to juror 's questions rather than merely instructing them not to ask them.

7. Final Instructions.

Prior to deliberations, the jury should be instructed again, based on the introductory instru tion, about the need to not communicate with others or to obtain information from other persons or sources. Each juror should have a written copy of this instruction during deliberations. Al this point, it would probably make sense to i11SLTUct the jurors to report any violations of the rule by other jurors. H r is an instruction that I drafted for consideration by the MPJI Committee.

During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You must decide this case based only on the evidence that you and your fellow jurors heard together in the courtroom. You must not consider any other information.

YOLl must not do any outside research or investigation on your own. Do not use any books, electronic

devices, computers or ph nes to do research on the internet or otherwise about this case even if you believe that the information would be helpful to you.

Whne you are deliberating about the case you must not have in your possession any computers, cell phones, or other electronic communication device and you must not communicate with anyon outside the jLUY room. We have collected these devices from you and will hold them under custody of the court. If there are breaks in deliberations, r may allow you to COl1'\municate on your Iectronic devi e to your family or friends, but there must be no communication about the case or the deliberations that you are engaged in.

If you have any questions about this instruction or the restrictions that apply to you, please send me a note and T will respond La it. U YOLI become aware that any other juror has violated this instruction, please also let me know by a note.

8. Deliberations

During deliberations, all electronic devices should be removed from the jurors' possession and be held by court staff. During breaks in the deliberanon day, the devices could b returned but only to make calls to family, jobs or oth - r necessary contacts. The jurors would be forbidden from accessing web sites of any type except with the court's permission and oversight. Overnight separation of the jurors will require the court to forcefully remind the jurors of the directives.

9. Juror Sanctions

Most judges - correctly, in my view -are loathe to impose sanctions upon jurors even when "misconduct" has OCCUlTed. It may, however, be neces-

sary that a juror receive a sanction that would serve as an example to others in particularly egregious cases where the directives to the juror were clear and there is no reasonable excuse for a violation. This would be particularly appropriate where the misconduct resulted in a mistrial or the granting of a motion for new trial.

10. Anonymous Juries

In high profile cas 5 where there is intense public int rest, it would be a good precaution to have the jurors' names and identifying information shielded from th public and the media during trial. This would help to insulate jurors from people attempting to contact them electronically to influence them, either directly or through their family members. The Rules Committee currently has such a proposal under consi d era lion.

11. Standard for Iew Trials

The Maryland appellate courts have found new trials to be required when-

misconduct suggests "even the hint of possible bias or prejudice." Wardlaw v. Stale, 185 Md. App. <140, 451 (2009). This is th rule even where the case appears to be otherwise error-free and the trial judge made findings that the misconduct was not mat rial to the fai mess of the verdicts rea heel. These standards should be reviewed in light of the modern realities facing jurors and trial judges.

For exampl , in evaluating claims of juror "misconduct" casual and nonserious postings made by a juror or potential juror in the atmosphere of a social media site should be evaluated with an understanding of the culture found there and courts should not over react by voiding trials where the overall re r reflects a fai r trial was given. Th ourt of Special Appeals has recently adopted modern and flexible rules to authenticate evidence from social III dia sites. Griffill v. Stnte, 2010 WL 2105 01 Md. App., 2010. Similar flexibility may be appropriate in evaluating juror conduct in the

ever, in the words of one case, juror 21st century.

Conclusion

Th jury system has successfully surviv d great ch Ilenges in the past, including the addition of minorities and women to the formerly all white male jury pool; prejudicial publicity durin trials from newspapers, TV and radio; an I the need for a jury to consider highly complex or technical issues. Each of these developments was pr phesied to be the end of the jury system as an effective instrument of justice. Despite the predictions, the jury system has survived and prospered by accommodating itself to these challenges. There is no reason to think that jury trials with a little CMe from the bench and bar cannot survive the advent of Facebook friends, Twitter f llowers, bloggers and other electronic and digital creatures of the early 21st century.

Judge Sweeney is retired from the Circuit Court of Howard County.

No ember 2010

MARYLAND BAR JOURNAL

49