Juror Misconduct and Social Media Use

With access to and use of social media and the internet rapidly increasing as technology advances, it is becoming nearly impossible to control its use everywhere, not to mention in the courtroom.  New devices and constant 3G, 4G, and wifi internet access make it possible to share any and all information with the entire world at only a moment’s notice, as well as vastly increase the ease with which one may instantaneously access information for researching purposes.  Such truths have nothing if not immensely detrimental consequences for all settings which require a certain level of isolation and containment in regards to information access and communication – the court system being paramount among such institutions. However, although many court participants – including observers, attorneys, and the press to name a few – may have access to social media sites and may obtain immediate internet information with which to research varies aspects of the case being presented, the most troubling aspect of social media and internet use within the court system includes that associated with the jurors, the true “deciders” of cases.

Historically, juror communications outside of the court and access to information regarding the case in which they are impaneled has been strictly limited.  In efforts to safeguard the fairness of a trial – and thus sequester those truly deciding its verdict from any and all outside influence and information deemed unsuitable – juror instructions regarding suitable activity during court service have included aspects regarding the prohibition of outside research and communications regarding the case.  Nevertheless, such guidelines have proven inefficient as technology and social media use has drastically evolved, becoming an important aspect of everyday life and proving almost impossible to restrict.  Since the advent of new mass communication technologies such as Twitter, Facebook, and LinkedIn, coupled with technological advances which have increased their accessibility beyond those just within the home, countless trials and verdicts have resulted in mistrials and retrials due to juror misuse of such technologies in order to conduct outside research and communicate with others – including other members of the jury, which is strongly prohibited outside of court and before deliberations and reaching a verdict.  Examples of such cases include Clark v. State, in which a Maryland resident convicted of first degree murder won a mistrial in appeal after it had been discovered that a juror impaneled in his trial had researched aspects of his case on Wikipedia and brought the printouts to court, thus potentially “tainting” the rest of the jury.  Another includes the reversal of a Kentucky first degree murder conviction due to two jurors’ Facebook friendship with the mother of the victim during the trial.  It is nothing if not incredibly troubling that such mundane use of social media has the potentiality to reverse court decisions and lead to mistrials in cases involving crimes as hugely serious as first degree murder.

So what can be done to limit such mistrials?  New juror guidelines created by the Judicial Conference Committee on Court Administration and Case Management as well as individual states have suggested altered juror instructions which include special references to a wide variety of prohibited social media use.  However, is that enough?  Should we, as some suggest, sequester juries in controlled settings throughout the entirety of their duty?  Or would the financial burden of doing so represent a cost too great to incur upon the taxpayers in order to ensure a fair trial?  Is it enough to rely on jury instructions and individual juror accountability to curb the use of social media communications and outside research, or are stricter regulations of juror actions required to limit the possibility of mistrial and reversal of costly, time-consuming verdicts?  Such inquiries will surely only increase in prevalence and importance as both technology and social media use continue to expand and develop within our society.

Student Blog: Discovery of Social Media Evidence

           While there may be a lot of evidence hidden within one’s social media account, a lot of evidence can be found just by looking at what is made completely public. There are many examples where evidence found on social media has been very valuable to a case. Some cases specifically involve posts made on a social media site and those posts are the main evidence. Other cases are not directly related to social media but post made on social media are still useful. Overall, social media sites offer a whole new area to discover evidence.

            Recently, a judge ruled that people can allow investigators to go through their friend’s Facebook profiles. This makes information only available to friends, also available to investigators. Should investigators be allowed to have this access to look for evidence? Just because you set your privacy settings so that only your friends can see your profile does not prevent those friends from showing your profile to others.

            There are several cases which are defining social media privacy in court. One case is McMillen v. Hummingbird Speedway, Inc. that involved postings on a plaintiff’s Facebook page that contradicted their claims for damages. Just looking at the public portion of the plaintiff’s Facebook page showed that he had exaggerated his injuries. There could have been even more evidence in private conversations. Another case is Zimmerman v. Weis Markets, Inc. In this case, the plaintiff tried to recover damages from injuries in an accident with a forklift. On the plaintiff’s Facebook page, pictures were found of him wearing shorts after the accident when he claimed he was too embarrassed to wear shorts because it showed his scar on his leg. He chose to put these pictures on Facebook and make them public, so they were found and used against him. These are just two cases where evidence was found on social media that significantly contributed to a case.

            Although many people are aware that they should not post things that can be used against them, there are still people who give investigators things to discover on social media. As of April 19th, social media evidence played a role in around 700 cases. Facebook and MySpace were the most used, followed by LinkedIn and Twitter. Social media is allowing more and more people to get caught for the crimes they commit. It is interesting that MySpace is still such a large contributing factor to evidence even though it is not as widely used anymore. With all the evidence available on social media sites, the question becomes how far an investigator is allowed to go to recover that evidence. Should they be allowed to obtain usernames and passwords to discover it all?

The Lawfulness of Social Media as Evidence in Court

With approximately 800 million Facebook profiles, 500 million Twitter accounts, and 4 billion videos streamed on YouTube daily, personal information on social media websites is becoming easy to attain. And by now, so many people use social media so often that it is bound to be presented as evidence in court. But is this an infringement on our fourth amendment protection against invalid search and seizure?

                To pursue the answer to this question, we must first understand the true privacy of social media websites.  Privacy policies for these sites do promise a certain degree of protection from hackers along with nondisclosure to the general public, but do not guarantee that the information is exclusively private. In most cases social media participants are offering their posts to a large audience that may not be as protected as the poster; in such cases, information that was once private can easily end up on a search engine.  In fact, most privacy policies will warn users that due to the nature of social media, virtually any shared information can end up on the internet, capable of being searched by the public.

                The current practice today in federal courts is that information posted on a social media website can be used as evidence in court regardless of the posters preferences or the limited audience that it was intended for.  Even further, measures must be taken by legal parties to preserve information on social media sites relevant to a claim or defense in a case.

                The Fourth Amendment to the U.S. Constitution states the following:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

It would seem that the current actions of our court system violate this right.  We are entitled to be “secure… against unreasonable searches and seizures” whether those searches are physical or digital in nature.  However, as stated above, when the digital information being presented as evidence in court was received by a limited public, many question whether that information is private at all.  The question now becomes, what is privacy?  Do social media users have any control over who ultimately can see their information? And by posting to an even limited public, do we relinquish our right to privacy?

ANONYMOUS SPEECH SHOULD BE PUNISHED HARSHLY

Last week the class was anonymously polled on two questions:

Q. 1:  Because the internet is so ubiquitous and so readily availble by everyone, the best remedy for false speech on the internet is not the imposition of legal liability, but the posting of more speech to refute and challenge the falsities.  Do you agree or disagree with this statement and why?

Q. 2:  Should posting libelous statements on the internet by an anonymous poster be a crime? Yes or no and explain your position.

What follows is a brief recap of the result highlights:

11 of the 15 students in class disagreed with question no. 1 and a whopping 13 students anwered question 2 yes, although many of the answers were apparently based on the mistaken belief that defamation is currently a crime and anonymous defamatory speech shouldn't be treated differently from attributed defamatory speech. (NOTE: In most states, defamation results in civil liability and imposition of damages, but is not a crime.  Several state laws making defamation a crime have been stricken as violative of the First Amendment).

A few illustrative explanations for imposing criminal liability on anonymous defamers include the following:

 "People need to own up to what they post and should understand that their credibility is on the line."

"Libel is libel no matter who creates it.  Libel posted anonymously does just as much damage to the receiver of said libel as libel that is non-anonymous..."

"If posting libelous statements by a known real poster is a crime, then I think that libelous statements made by anonymous/fictitious posters should also be considered a crime.  Even though posts by a known author may possess more credibility from its readers and, therefore, gain more momentum in the amount of reputation damage caused, the anonymous information can still spread very quickly and damage a reputation just as much."

Those who argued against imposing criminal liability for false internet speech reasoned that anonymous speech has "significantly less credibility" than attriburted speech and noted that it would be very difficult to "prosecute all the people that post libelous statements on the internet under a fictitious name.

As to Q. 1, the following explanations were illustrative on why more speech is inadequate to refute false speech:

"The imposition of legal liability is more accurately documented and is more likely to end with an actual solution rahter than more rhetoric spilled across the internet."

"This seems like it could result in an escalating battle over the internet.  What would be in place to control it? You would end up with more flse speech than you started with."

"I disagree because the person who has suffered as a result of hte false speech shouldn't have to spend his/her time and money trying to refute the false info.  If someone has posted false information, then they should be the one funding the clean-up."

There was little difference in the reponses based on gender, political affiliation or major.

This is obviously a tough crowd who values accountability and has little patience with those who libel others on the internet.

Which is more important, one's day in court or preserving the privacy of one's menatal health status?

Most state and federal courts require a plaintiff to litigate a civil claim in his or her real name.  In fact, Federal Rule of Civil Procedure 10(a) expressly requires a complaint to "name all the parties."  This only makes sense because the plaintiff is seeking relief from a public, taxpayer funded institution to vindicate a right, resolve a dispute or pursue a claim for damages.  The historical presumption of open judicial proceedings and the public's First Amendment right to know how our judicial branch is operating conflicts with allowing a plaintiff to proceed anonymously.  Moreover, the use of a pseudonym by a plaintiff may seriously prejudice a defendant by making it more difficult to perform discovery, raise legitimate defenses and assert counterclaims if the defendant does not know the identity of the plaintiff or is otherwise precluded from identifying the plaintiff in defense of the lawsuit.  In addition, anonymous plaintiffs may make accusations of wrondoing which receive widespread attention in the the court of public opinion.  Fundamental fairness requires a defendant to be able to defend himself against the accusations, particularly when the accusations are defamatory, if false.  The identity of the defendant is known to the public, why shouldn't the accuser's identity also be known?

Courts have recognized that there are exceptional circumstances which may warrant allowing a plaintiff to proceed anonymously.  These exceptional circumstances usually implicate a strong privacy right.  Examples include cases involving children who are the victims of sexual abuse or women who are the victims of rape.  In these cases, courts employ a series of factors to balance the competing interests and determine that the privacy interests outweigh the interests of the public and the defendant.  The line drawing is not often easy and there are some seemingly inconsistent results, depending on the jurisdiction.  There is currently a debate in the country about whether the privacy rights of a plaintiff who is suffering from a mental illness should be accorded the same weight as a victim of a physical assault.

Consider this hypothetical fact situation:

Plaintiff is an attorney who is seeking admittance to the Utah state bar.  She has recently moved to Utah from another state where she practiced law for many years.  She previously has been diagnosed with an anxiety disorder and a post-traumatic stres disorder, but maintains that medication has  properly managed the disorders.  The state bar's three person Character and Fitness Committee asks her questions about her mental health that she believes violates the Americans With Disabilities Act. When she is denied admission based on the information solicited by the Character and Fitness Committee, she sues the state bar and the Character and Fitness Committee.  She alleges, among other things, that she was asked the unlawful questions because she rebuffed the sexual advances of one of the male members of the Committee.

Several questions arise from this situation.  Should plaintiff be allowed to sue in a fictitious name or must she choose between her privacy and her day in court?  Would it be fair to the defendant accused of unethical conduct to preclude him from identifying the woman in his defense?  Does he need to diclose the plaintiff's identity in order to defend himself? Would the analysis be different if there were no allegations of unethical conduct by one of the defendants?

Student Blog 3: Twitter Libel Suits

Currently one of the most popular social networks in the world, Twitter provides a platform for registered users to broadcast their thoughts in real time – provided those thoughts can be communicated in 140 characters or less. Such a simple concept, yet it has drawn over 500 million users who are generating about 400 million tweets per day. With so many people with so much to say, it is no wonder that Twitter-related libel lawsuits have been on the rise.

Libel involves the publication of untruths for the purpose of harming another person’s reputation. The statement in question must claim to be fact, not merely an expressed opinion. On of the first libel suits arising from claims made on Twitter was Simorangkir v. Love in 2009, when fashion designer Dawn Simorangkir sued musician Courtney Love based on several of Love’s tweets about her. The tweets contained several serious accusations, including lying, stealing, assault, drug dealing, and prostitution. The matter ended up being settled by Love’s party out of court, to the tune of $430,000.

The case brought up several interesting legal concerns regarding Twitter. The most obvious of these is that tweets can indeed be considered libelous. Tweeting, along with a host of other types of blogging, is considered “publishing” material. Publication is defined as a third party seeing, reading, or hearing the remarks in question. This means that the number of followers you have on Twitter has no bearing on whether or not a tweet of yours can be considered libelous, because even one singular person reading it defines it as “published”.

Another interesting concern is the classification of what is considered claims of fact, or what is merely an expressed opinion. When libel cases go to court, it is the judge’s responsibility to take the context of the remarks in question into consideration. But tweets are unique in that their 140-character limit doesn’t really allow for much, if any, context. Arguments have been made about the freewheeling nature of Twitter, suggesting that any reasonable reader of tweets would understand that most claims being made on Twitter would be expressions of opinion, rather than statements of fact. However, this does not provide automatic immunity for statements made on Twitter, and time will tell whether or not this argument will gain any traction in the courtroom. 

Student Blog 2: "Sister Wives" Polygamy Suit

Ever since the TV show “Sister Wives” premiered in 2010 there has been an ongoing debate as to whether polygamy should be decriminalized in the United States. Shortly after the show premiered on TLC Utah law enforcement officials launched an investigation into the Brown family. No charges were ever filed against the Brown family because the state of Utah decided to only prosecute polygamists if other crimes were committed in conjunction with polygamy. The threat of impending criminal charges created so much stress on the family that they decided to move to Nevada. The Brown’s still filled a lawsuit that challenges the polygamy laws.

            The Brown’s have based their case off the 2003 United States Supreme Court decision Lawrence v Texas (http://www.law.cornell.edu/supct/html/02-102.ZS.html) This decision struck down sodomy laws because they were unconstitutional intrusions of the “intimate conduct” of consenting adults. The Brown’s also believe that anti-polygamy laws intrude on their right to freedom of speech/expression, as well as the freedom of association clause of the first amendment and the equal protection clause of the fourteenth amendment. So far the Brown’s case has help up in court. On August 29^th of this year U.S. District Judge Clark Waddoups denied the state’s motion to dismiss the lawsuit of the basis that the case is now moot because no charges have been filed against the Brown’s. Both sides are expected to file documents arguing their case sometime in September with a hearing to follow later this year or beginning of 2013.

            This case brings up many questions, specifically regarding the mainstream LDS church and its disavowment of polygamy. The Brown’s are part of the Apostolic United Brethren Church, which is a fundamentalist offshoot of the mainstream LDS church. The mainstream LDS church disavowed polygamy in 1890 with a connection to Reynolds case (http://en.wikipedia.org/wiki/Reynolds_v._United_States) which ruled against polygamy. Even though the mainstream LDS church disavowed the practice of polygamy they never officially disavowed it as a requirement to enter the highest levels of heaven. One of the most interesting questions that were brought up in articles regarding this case was how will the LDS church respond if polygamy is decriminalized?

Ethics Advisory Committee Gives Green Light to Judge Use of Social Media

On Friday, August 31, 2012 the Utah Judicial Ethics Advisory Committee issued a far reaching and very forward thinking opinion regarding use of social media by Utah judges.  The opinion joins the ranks of a growing number of state ethical advisory bodies which recognize that judges may ethically use social media without compromising their judicial roles.  The Committee's opinion, in response to two separate requests from Third District Court Judge Andrew Stone and Court of Appeals Judge Michelle Christiansen, provides guidance to judges by answering 23 specific questions, including whether judges may be social network "friends" with lawyers (yes) candidates for elected office (yes) or elected officials (yes) and whether judges may "like" law firms, events or businesses (yes, yes & yes).  The opinion also provides guidance in several areas not yet addressed by any other state, including whether a judge may use a pseudonym to post content (yes); whether a judge may use a photo of the judge in his/her robes as a profile picture (yes); whether a judge may "follow" a lawyer on Twitter (yes) and whether a judge, who is a member of LinkedIn, may recommend someone (yes) and must recuse him/herself if the recommended person appears before the judge (maybe). In answering the 23 questions posed, the Opinion noted that "it may have been simpler to answer most in the negative" which would have created a "bright line for judges to follow." However, the Opinion acknowledged the growing prevalence of social media in today's world as a communication tool and observed that judges "similar to other public settings, should be permitted to enter."  The Opinion has not yet been posted on the Courts web site, but will soon be available at http://www.utcourts.gov/resources/ethadv/

Kudos to the Ethics Advisory Committee for its progressive view and approach and for providing clear guidance to our state judiciary.