Googling…blogging…texting… tweeting…posting…OMG! A guide for lawyers and judges clutching No. 2 yellow pencils
By Judge J.W. Looney and Rodney P. Moore “Online communities are really no different than . . . ancient Roman bathhouses, where people came to talk, relax and entertain themselves, while baring all. And bandwidth, like currents of water, is the well that draws people together.”1 Vibrating, music-playing, flashing gadgets abound: allowing instant connection to the world—and its unfettered information. An allure so irresistible that most habitually annex these devices onto their bodies and incorporate their operations as naturally as breathing. Not surprisingly, when these gadget-appended souls are selected to fulfill their civic duty and serve on a jury, they continue to breathe—and connect to the world. This phenomenon gives rise to interesting questions for lawyers and judges who participate in a legal system that insists on controlling information and access. Two recent Arkansas cases demonstrate the quandary. In a civil case, a sitting juror tweeted: “I just gave away TWELVE MILLION DOLLARS of somebody else’s money.” Another judge confronted two juror problems: one was sleeping and one was tweeting. He questioned both, provided coffee to sleepy, and gave stern admonishment to the texting juror. Despite his efforts, the persisting snoring and texting of the jurors became the published story of the trial and upended all else.2 The issues are not limited to jurors. Judges are “friending” lawyers in social media and conducting internet research on matters other than the law. Lawyers are texting witnesses and seeking to introduce Facebook pages into evidence. Witnesses are blogging and posting. The courts are frantically scribbling with their No. 2 yellow pencils: “Help!” This article grapples with a few of these issues and makes suggestions along the way. A juror tweeted… Stories of juror misconduct involving technology are rampant. A prospective juror in Seattle posted on a blog that the defense attorney was cute and that she wanted to go to lunch with him. She went on to indicate the prosecutor was a “Mr. Cheap Suit.” The judge’s instructions prohibited texting but said nothing about blogging. During a corruption trial in Baltimore, five jurors became Facebook friends. One posted a remark about the judge. When confronted, he 16
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responded “hey Judge, that’s just Facebook stuff.” In Los Angeles, a prospective juror tweeted “Guilty! He’s guilty! I can tell!” At the time he was in the juror assembly room before he was even chosen for the jury. The juror/technology issues fall into the following categories: • Improper conduct with parties or witnesses • Broadcasting details of deliberation • Do-it-yourself research • Blogging or tweeting juror’s opinion • Anonymous accusations …Amputate the appendage! So far, the most pervasive response to the juror texting and researching problems is prohibition. Arkansas Model Jury Instruction 101 reflects this position instructing jurors to not use any device to search the internet to find anything out about the case, not to communicate about the case using any device, and to turn all devices off while in the courtroom and during deliberation. And, in most courthouses, signs are posted prohibiting use of cell phones and the like—sometimes prohibiting them to even be brought into the courtroom. As shown by the case where the texting juror continued even after specific instructions from the judge, the effectiveness of this approach is questionable. And, the cost is significant. A Reuters Legal analysis found 90 challenges to verdicts in 10 years, with new trials or reversals in 28.3 It doesn’t stretch the mind to imagine those numbers will be much larger over the course of the next 10 years. If this approach prevails, it will likely be necessary to provide more specific details about which technologies are prohibited. For example, the Tennessee Pattern Jury Instructions state: You may not communicate with anyone about the case on your cell phone, through email, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including but not limited to