For a 57 year-old Central New York personal injury lawyer, I’m pretty social-media savvy. I blog, I tweet, I google, I post on Facebook, etc. So when I read some twitter chatter about an article titled “Juror Misconduct in the Age of Social Networking”, I googled the article and read it. It was a good read, and since you might not have the time or inclination to read the whole thing, let me summarize it for you.
It starts with this quote from Albert Einstein: “It has become appallingly obvious that our technology has exceeded our humanity”. I assume Einstein was thinking of the atomic bomb, not social media. I don’t think you can call social media an atomic bomb, though its impact on juries is certainly somewhat explosive.
The article goes on to describe how jurors are “tweeting”, “Facebooking” and googling with smartphones during jury duties, often in defiance of the judge’s order not to. If they are posting information about the case, or discussing it at all, or googling for information about the lawyers, their clients or witnesses, well, they are violating their juror oath. Jurors have been caught posting things like, “it’s gonna be fun to tell the defendant he’s GUILTY”. Other jurors have been caught trying to “friend” witnesses on Facebook. They have also conducted improper “investigations” online, for example, regarding the distance between two relevant locations, or the yearly profits of a defendant corporation.
All this poisons the jury system because the jury is supposed to decide the case only on the evidence that comes into the courtroom, not on “evidence” they get from their smartphone. The parties don’t have an opportunity to “rebut” or cross-examine or respond to the information or impressions the jury gets from their smartphones.
I read another article recently (I can’t remember where – my age is showing!) that noted that some personal injury lawyers in New York and elsewhere, well aware that jurors might be (improperly) googling them, post blogs and other information on their website about the case being tried, or about the kinds of injuries their client has, that are intended to sway the jury. This is unethical because lawyers are not supposed to “communicate” with jurors, and posting information targeting the jury would be a type of “communication”. These lawyers might think they can get away with this by claiming they were not targeting disobedient jurors, since the jury is not supposed to be visiting their site. But often the timing and the subject matter of the blog posts make it pretty clear these lawyers are actually counting on jurors disobeying the judge’s orders, or at least hoping they do so.
So what’s the bottom line? Smart phones and other devices are poking holes in our courtroom walls big enough for Mack trucks to drive through. Illicit “information” is driving through those holes, polluting our trials and our justice system. We’re entering a brave new world of social-media savvy jurors and lawyers who don’t care to plug those holes, or simply can’t resist the temptation to sneak stuff through them. If we want to keep trials fair (yes we do) then we had better find a way to seal those holes securely. How?
Hmm. I’m thinking. Maybe I’ll get to this in another blog post . . .
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