Google Mania (Part 3): How It’s Playing Out in the Courtroom
Posted By Kacy Miller on Monday, August 29, 2011
If you’re wondering how Google, Facebook, Twitter and researching jurors plays out in the courtroom, check out the cases below. The growing use of social media and internet use in the courtroom setting is murky at best, but juror use of social media seems to be a definite no-no. Attorneys who use the internet to research jurors seems to be an increasingly more acceptable practice; however it does vary by jurisdiction. As we learn of new trends, cases and laws we will be sure to report them here!
Facebook and Blog rants cause juror to be excused from service. (July 2010)
In a Missouri products-liability case (Khoury v. ConAgra), defense counsel learned of a juror’s bias after the panel had been sworn in. After jury selection, defense counsel reviewed the juror’s Facebook page and personal blog. Both suggested a very strong anti-corporate sentiment that was not disclosed during jury selection. Defense counsel moved to excuse the juror from the panel, and the judge agreed.
Judge says “No Googling in my courtroom!” but appellate court disagrees. (August 2010)
In a New Jersey medical malpractice case (Carino v. Muenzen), plaintiff counsel was actively Googling jurors during the voir dire process. An exchange occurred between the judge and plaintiff counsel whereby the judge proclaimed, “the rule is it’s my courtroom and I control it.” Plaintiff counsel was forbidden from Googling jurors because opposing counsel did not have laptops in the courtroom and the judge felt it gave plaintiff counsel an unfair advantage.
An appellate court opinion (decided August 30, 2010) ultimately upheld the verdict, but did find that the lower court judge had improperly prohibited plaintiff counsel from conducting online research.
“…conclude that the judge acted unreasonably in preventing the use of the internet by [plaintiff] counsel. There was no suggestion that counsel’s use of the computer was in any way disruptive. That he had the foresight to bring his laptop computer to court, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of ‘fairness’ or maintaining ‘a level playing field.’ The ‘playing field’ was, in fact, already ‘level’ because internet access was open to both counsel, even if only one of them chose to utilize it.”
Because jury selection took two days, the appellate court also stated that defense counsel “could have researched the prospective juror lists overnight or during breaks, and certainly could have done so before the testimonial portion of the trial started on the third day.”
Don’t “Friend” jurors (especially if you’re a criminal defendant)! (June 2011)
The Georgia Macon Sun News reported that a Peach County juror (already selected to serve on an aggravated assault case) reported to the Court Clerk that a friend of the criminal defendant sent her a “Friend” request on Facebook. In response to the “Friend” attempt, the judge requested a review of the defendant’s recorded jailhouse phone calls. Turns out, the defendant had specifically asked his girlfriend to contact three identified jurors. The judge immediately dismissed the jury…and revoked the defendant’s bond. In an effort to ensure a fair and impartial trial, the judge also asked trial counsel to consider the possibility of a change of venue or sequestering the new jury.
If a juror keeps secrets during voir dire, it can be grounds for a new trial. (July 2011)
In a recent Manhattan federal court tax evasion case (U.S. v. Daugerdas), the defense team requested a new trial on the basis that a juror withheld critical information during jury selection that, had it been known, would have caused her to be released from the panel. Defendants claim the juror failed to inform the court that she had a law degree and has been suspended from practicing since 2007. She also allegedly failed to share her current status of criminal probation for two shoplifting charges, and her outstanding warrant for disorderly conduct. I have not found any documents detailing how the trial team learned of the alleged misconduct, but one can reasonably surmise that the information was learned from Internet research.
California jurors who use social media can be held in contempt. (August 2011)
California Governor Brown signed California Assembly Bill 141 on August 5, 2011 which took typical jury instructions to refrain from social media and/or researching during trial up a notch. It now includes contempt of court charges for violating the instructions. The new law not only forbids jurors from using social media or electronic devices (including the iPhone, Blackberry, etc.) to research or discuss the case, but it also bans jurors from using any electronic device to contact court officials.
The bill includes the following excerpt regarding punishment:
“This bill would make the willful disobedience by a juror 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, punishable as either a civil or criminal contempt of court pursuant to those provisions.”