Tocqueville’s LIKELY Take on the “Tweeting Juror” Problem
case if their misconduct warrants a retrial.”203 In one recent case, a juror “accidentally” sent a friend request to the defendant in an auto negligence case and failed to mention the incident to the trial judge.204 After the defendant reported the juror’s misconduct, the judge kicked the juror off the panel.205 In response, the dismissed juror posted a message on his own Facebook wall stating, “‘Score … I got dismissed.’”206 The judge reacted by sentencing the juror to three days in jail and ordering him to pay court expenses.207 Statutory laws in some states proscribe juror misconduct. For instance, New York Judiciary Law § 753, a general contempt statute, provides as follows: A court of record has power to punish, by fine and imprisonment, or either … [a] person duly notified to attend as a juror, at a term of the court, for improperly conversing with a party to an action or special proceeding, to be tried at that term, or with any other person, in relation to the merits of that action or special proceeding; or for receiving a communication from any person, in relation to the merits of such an action or special proceeding, without immediately disclosing the same to the court.208
Although this statute does not explicitly mention Internet-based misconduct, a court could certainly construe this language — particularly the broad term “conversing” — to cover a juror’s social networking activities.209 In 2011, the California legislature enacted a statute that specifically prohibits jurors from using social media and punishes violators with criminal or civil contempt charges.210 Under this statute, “[w]illful 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,”211 is punishable by up to six months’ imprisonment in the county jail, or a fine up to $1,000, or both.212 According to the bill’s original sponsor, “‘the fact that this kind of communication [was] not expressly included in [preexisting] law has resulted in increased problems in courts across the country,’”213 which suggests that other states’ legislatures might soon follow California’s lead in enacting targeted statutes. Punitive measures certainly make jurors aware of the seriousness of their online misconduct and send a “public message that such behavior will not be tolerated.”214 Moreover, it makes intuitive sense that courts should have the power to punish disobedient jurors in this way.215 However, such measures also give rise to many negative side effects. First, punishing jurors might have a “chilling effect” on juror participation,216 203. McGee, supra note 7, at 322 (“Because a juror’s extrajudicial communication has the potential to result in a prejudicial effect toward a defendant, it may also be fair to impose on a juror the costs of rehearing the case if the misconduct warrants a mistrial.”). 204. See Gloria Gomez, Friend request answered with jail time, My Fox Tampa Bay (Feb. 16, 2012), http://www. myfoxtampabay.com/dpp/news/local/sun_coast/friend-request-answered-with-jail-time-02162012. 205. See id. 206. Id. 207. See id. 208. N.Y. Jud. L aw § 753(A)(6) (McKinney 2003). 209. See Fallon, supra note 8, at 960. 210. See C al . P enal C ode § 166(a)(6) (2012); Eric P. Robinson, New California Law Prohibits Jurors’ Social Media Use, C itizen M edia L. P roject (Sept. 1, 2011), http://www.citmedialaw.org/blog/2011/ new-california-law-prohibits-jurors-social-media-use. 211. C al . P enal C ode § 166(a)(6). 212. See McLaughlin, New California Statute Prohibits Jurors’ Use of Social Media, L egal R isks of S oc . M edia (Sept. 8, 2011), http://blog.smartpropertylaw.com/?p=142. 213. Robinson, supra note 210 (quoting California Assembly Member Felipe Fuentes). 214. McGee, supra note 7, at 322. 215. Thanks to Professor Marder for suggesting this point. 216. Fallon, supra note 8, at 967.
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