Issuu on Google+

Summer 2011

Reynolds Courts & Media Law Journal

Modern Media in the Courts II: Cameras and Beyond Cameras in the Courts: The Long Road to the New Federal Experiment���������������������������������������������������� Mickey H. Osterreicher

Let the Cameras Roll: Cameras in the Court and the Myth of Supreme Court Exceptionalism ������������������������������������������������� Tony Mauro

Eyeing the Supreme Court’s Challenge: A Proposal to Use Eye Tracking to Determine the Effects of Television Courtroom Broadcasting �����������������������������������������������������������Paul Lambert

Jury Instructions for the Modern Age: A 50-State Survey of Jury Instructions on Internet and Social Media ����������������������������������������������������Eric P. Robinson

U.S. $13.00

www.courtsandmedia.org


Summer 2011

Reynolds Courts & Media Law Journal

donald w. reynolds national center for

COURTS&MEDIA


Reynolds Courts & Media Law Journal Volume 1, Issue 3 Summer 2011

William L. Winter­, Publisher Ben Holden, Editor Eric P. Robinson, Managing Editor Jim Cooper, Aspen Kuhlman, Layout Editors Zanny Marsh, Marketing Director Mary Ann Cushman, Copy Editor

University of Nevada Prof. Nancy Rapoport; Blake F. Quackenbush Arizona State University Prof. Rick Rodriguez University of Missouri Prof. Charles N. Davis Washington and Lee University Prof. Toni Locy

Cover Photo: Photographers at the 2005 trial of reputed Ku Klux Klan member Edgar Ray Killen for the murder of three civil rights workers in 1964. Photo by Rogelio Solis, Associated Press.

Š 2011, Donald W. Reynolds National Center for Courts and Media and the University of Nevada, Reno. All rights reserved. Material in publications of the Donald W. Reynolds National Center for Courts and Media, including our web site, may be copied or downloaded for personal, noncommercial use only. Otherwise, this material may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of the Donald W. Reynolds National Center for Courts and Media, or, in the case of materials owned by third parties, the owner of that content. The opinions expressed in this publication are those of the author(s), and are not necessarily those of the University of Nevada, Reno; the Donald W. Reynolds National Center for Courts and Media; nor the Donald W. Reynolds Foundation.

ii

Volume 1, Issue 3


Affiliated Institutions University of Nevada Donald W. Reynolds School of Journalism, Reno William S. Boyd School of Law, Las Vegas National Judicial College Arizona State University Walter Cronkite School of Journalism and Mass Communication Conference of Court Public Information Officers University of Missouri University of Missouri School of Law Missouri School of Journalism

Board of Editors Hon. William Dressel, President, National Judicial College Stewart Cheifet, University of Nevada Charles Davis, University of Missouri Toni Locy, Washington and Lee University Nancy B. Rapoport, University of Nevada Rick Rodriguez, Arizona State University Christina Wells, University of Missouri

Reynolds Courts & Media Law Journal

iii


Call for Papers The Reynolds Courts and Media Law Journal is seeking legal and scholarly articles on the interaction of the courts and the media, and the impact and implications of this interaction.  Examples of possible article topics include, but are not limited to: • • • • •

Media access to court proceedings (including cameras, new media in the courtroom) Conflicts between First Amendment and Sixth Amendment principles and values Impact of social and new media on court proceedings Process and implications of online access to court records and proceedings Analysis of specific examples and cases of court-media conflict situations

Judges, attorneys, journalists and professors are invited to submit (via e-mail) ideas, proposals or drafts for articles of up to 30,000 words (including text and footnotes).  The journal is published both in print and online. Electronic submissions in Microsoft Word format strongly preferred. Blue Book or Association of Legal Writing Directors (ALWD) legal citation format is strongly preferred; other social science citation formats are also accepted, but citations must be in footnotes, not endnotes or parentheticals Submissions, ideas and questions should be sent to courtsandmedia@unr.edu.

iv

Volume 1, Issue 3


Reynolds Courts & Media Law Journal Contents Modern Media in the Courts II: Cameras and Beyond���������������������������������������������������������������������������������� 219 Cameras in the Courts: The Long Road to the New Federal Experiment  Mickey H. Osterreicher���������������������������������������������������������������������������������� 221

Let the Cameras Roll: Cameras in the Court and the Myth of Supreme Court Exceptionalism  Tony Mauro ����������������������������������������������������������������������������������������������������259

Eyeing the Supreme Court’s Challenge: A Proposal to Use Eye Tracking to Determine the Effects of Television Courtroom Broadcasting  Paul Lambert�������������������������������������������������������������������������������������������������� 277

Jury Instructions for the Modern Age: A 50-State Survey of Jury Instructions on Internet and Social Media  Eric P. Robinson��������������������������������������������������������������������������������������������� 307 Letter from the Director����������������������������������������������������������������������������������������� xi For Further Reading��������������������������������������������������������������������������������������������� 417 Authors�������������������������������������������������������������������������������������������������������������������� 419 Board of Editors ��������������������������������������������������������������������������������������������������� 420

Reynolds Courts & Media Law Journal

v


vi

Volume 1, Issue 3


(1906-1993)

Donald W. Reynolds

M

edia entrepreneur Donald Worthington Reynolds was born in 1906 and spent his childhood in Oklahoma City often “hawking” copies of the Oklahoma News at the railroad depot. He soon realized the newspaper business was in his blood, and set his sights on the University of Missouri’s School of Journalism, working at a meat packing plant to pay for his studies. Upon graduation in 1927, Mr. Reynolds worked in a variety of newspaper-oriented positions. He purchased and then sold his first newspaper, using the proceeds to launch the Donrey Media Group. During World War II, Mr. Reynolds served as the officer in charge of the Pacific and London editions of YANK. He received the Legion of Merit, Purple Heart and Bronze Star before being honorably discharged in 1945 as a major. After the war, Mr. Reynolds expanded his business, ultimately owning one of the nation’s largest privately held media companies. Upon Mr. Reynolds’ death in 1993, the Donrey Media Group was sold, resulting in a substantial bequest from the Reynolds estate to provide for the Donald W. Reynolds Foundation to continue his philanthropy, focusing on journalism; aging and quality of life; cardiovascular research; and general nonprofit programs in the states of Arkansas, Nevada and Oklahoma. These grants often include a capital component, reflecting Mr. Reynolds’ life-long passion for building. The Donald W. Reynolds National Center for Courts and Media and the Reynolds Courts & Media Law Journal are both funded by the Foundation.

Reynolds Courts & Media Law Journal

vii


Donald W. Reynolds National Center for Courts and Media

T

he Donald W. Reynolds National Center for Courts and Media is a national center for research and scholarship on the interaction between the courts and the media, particularly the conflicts between free speech rights under the First Amendment and the fair trial rights of the Sixth Amendment. By providing a forum for debate and discussion of the inherent tension between an independent judiciary and the freedoms of speech and of the press, and Center’s goals are to propose solutions to these conflicts, and to help judges and journalists develop insight into their respective roles in safeguarding American democracy and freedom. The Center is funded by the Donald W. Reynolds Foundation. In its research, publications and programs, and through its affiliations with the National Judicial College and the Donald W. Reynolds School of Journalism at the University of Nevada, Reno, the Center works with a wide variety of individuals with roles in the courts and the media, as well as observers of their interactions. These include judges, court clerks, court information officers and current and future attorneys; current and future journalists, editors and other creators of media content; and academics, organizations and other observers concerned with these issues. By working with these various stakeholders, the Center hopes to give the judiciary a better understanding of and appreciation for the vital role played by the media in establishing an informed citizenry, while also allowing journalists and other content creators to better understand and appreciate the judiciary’s ethical and legal obligations to ensure the fundamental fairness of court proceedings. More journalists also need to realize their First Amendment freedoms exist solely because judges interpret the Constitution to protect freedom of the press. And more judges need to realize that their independence rests on the public’s confidence in the fundamental fairness and integrity of the judicial system; a trust that is directly dependent on the information the public receives from the media.

A

s part of this effort, the Center is pleased to publish the Reynolds Courts & Media Law Journal, which highlights legal and scholarly articles on the interaction between the courts and the media, and the impact and implications of this interaction. By helping to reduce the conflict between the independent judiciary and the free press, the Reynolds Center seeks to promote and reinforce both of these crucial pillars of our democratic society.

viii

Volume 1, Issue 3


National Advisory Council The National Advisory Council is the administrative oversight unit for the Center. It is composed of both the judiciary and the media, print and electronic. The Council sets the focus of the Center and establishes its policies. Floyd Abrams—Partner, Cahill Gordon & Reindel LLP, New York, N.Y. Hon. Janet Berry—Judge, District Court, Second Judicial District, Reno, Nev. Walter H. Bush—Shareholder, Carlton Fields, Atlanta, Ga. Dave Busiek—News Director, KCCI-TV, Des Moines, Iowa William L. Winter—Dean, Reynolds School of Journalism, University of Nevada, Reno, Nev. Lucy A. Dalglish—Executive Director, Reporters’ Committee for Freedom of the Press, Arlington, Va. Linda C. Deutsch—Legal Affairs Reporter, The Associated Press, Los Angeles, Cal. Hon. William F. Dressel—President, The National Judicial College, Reno, Nev. Mark Hinueber—General Counsel, Stephens Media Group, Las Vegas, Nev. Hon. Richard A. Jones—Judge, U.S. District Court, Seattle, Wash. Warren L. Lerude—Professor, Reynolds School of Journalism, University of Nevada, Reno, Nev. Samuel S. Lionel—Shareholder, Lionel, Sawyer & Collins, Las Vegas, Nev. Karole Morgan-Prager—Vice President, General Counsel & Corporate Secretary, McClatchy Newspapers, Inc., Sacramento, Cal. Kelli L. Sager—Partner, Davis Wright Tremaine, LLP, Los Angeles, Cal. Alexander M. Sanders, Jr.—former Chief Judge, South Carolina Court of Appeals (retired), President Emeritus, College of Charleston, Charleston, S.C. David A. Sellers­—Assistant Director of Public Affairs, Administrative Office of the U.S. Courts, Washington, D.C. Dave Tomlin—Legal Counsel, The Associated Press, New York, N.Y. Barbara Wall—VP & Associate General Counsel, Gannett Co. Inc., McClean, Va.

Reynolds Courts & Media Law Journal

ix


From The National Judicial College

A

mong the many changes that now impact the courts are myriad websites such as Google, Google Maps, Facebook, MySpace, Twitter, and the sprawling array of supporting smart phone devices, from the Droid, to iPhones, Blackberrys, and Blueberries that facilitate these activities. For a longtime judge like me, all this techno-change is a new courtroom management challenge to be evaluated and addressed. Thankfully, you don’t have to navigate these tumultuous waters alone. There are folks who have encountered these challenges and are developing best-practice (not perfect practice, mind you) solutions on what to do with the Googling or Tweeting juror who pushes information out from the place of deliberation. There are developing solutions for some of these questions, but frankly, the trial court response to these issues is all over the map. This is why a dialogue on these issues is so important, providing a platform to share solutions that allow the courts to provide the most fair, comprehensive, and consistent justice possible. The Reynolds National Center for Courts & Media is a forum for a national dialogue on these issues: an open and honest discussion about inconsistent responses to the social media issues faced by the courts, including juror misconduct. The goal is not to tell judges what to do, but rather to share how their colleagues have handled similar problems. We encourage you to contribute your thoughts, experiences, or practices to the dialogue, and collaboratively develop best practices in addressing these issues. William Dressel

From The Reynolds School of Journalism

T

his edition of the Reynolds Courts & Media Law Journal is the first during my just-beginning tenure as dean of the Reynolds School of Journalism, and it’s fitting that I should share this page with National Judicial College President Bill Dressel. Judge Dressel and I have worked together on issues regarding the Reynolds National Center for Courts and Media for the past eight years, through my prior roles as an employee or consultant of the Donald W. Reynolds Foundation, the RNCCM’s founding funder. It’s been impressive to see the new directions the Center has taken over the past year or so, with special focus on research and scholarship, particularly concerning the impact of social media on the courts. As Editor Ben Holden discusses on the following page, the Center aspires to be part of a national dialogue on how today’s remarkable technological developments are changing the administration of American justice and how our society should respond. The Center’s focus on these issues already has been rewarded with praise (and, yes, some constructive criticism) from some of America’s top judges, journalists and lawyers. It’s worth noting that the Journal’s list of paid subscribers among America’s top law schools continues to grow. We price our product modestly to facilitate that growth in these difficult economic times. So if you haven’t already, we hope you’ll join us as a subscriber. Finally, I’ll leave you with an Edward R. Murrow quote that sums up the Center’s unique role on the public policy landscape: “What distinguishes a truly free society from all others is an independent judiciary and a free press.” That thought has been from the start, and will continue to be, at the core of the Reynolds Center’s work. William L. Winter

x

Volume 1, Issue 3


Letter From the Director

O

n July 6, 2011, the president of the United States held our nation’s first-ever Twitter forum – essentially a ”town hall” meeting using the instant communication mechanisms of computers and smart phones. Weeks earlier, Senator Saxby Chambliss (R.-Ga.) became the first member of Congress to release his own i-Phone app, appropriately named “Saxby,” allowing supporters (or detractors) to track his every movement on their cell phones. All very modern. By contrast, the cover of this issue shows reputed Ku Klux Klan member Edgar Ray Killen inside a Philadelphia, Mississippi courtroom, during his trial for the 1964 murders of civil rights activists James Chaney, Andrew Goodman and Michael Schwerner. Such pictures -- and admission into courtrooms of cameras to take them -- remained nearly as controversial at the time of Killen’s 2005 trial as they were 41 years earlier when the murders took place. Just as the courts have been slow to accept still and video cameras, they have been even more reticent in dealing with newer technologies, such as smartphones and social media, that are now embedded in our culture. It is only within the past few years that courts have confronted the questions posed by smartphones in courtrooms, and jurors using the Internet and social media during trial. The state-by-state compilation, of jury instructions regarding social media in this issue, which we believe to be the first comprehensive work of its kind, shows how the courts have began to wrangle with the challenge that new media poses to their traditional way of operating. This issue of the Reynolds Courts & Media Law Journal should be read as part of a set, along with the prior issue (Volume 1, Issue 2, “Modern Media in the Courts”). Both focus on modern media and their impact on the courts, as does our entire Washington, D.C. conference in August, at which this issue is being unveiled. The question of cameras in the courts, which has been raging for three generations now, has been largely resolved in the state courts – which overwhelmingly allow still and video cameras to cover court proceedings – but remains an open question in some states, and in the federal courts. It’s also an issue at the U.S. Supreme Court, which has resisted cameras but has used its web site to provide increasingly more information about its docket, arguments and decisions to the general public. But the cameras-in-the-courtroom debate may now been superseded by technology. Jurors now tweet, use Google Maps, sent text messages, and post to their blogs and Facebook pages while serving on juries, with Reuters (using Westlaw data) concluding that between 1999 and the end of 2010, at least 90 verdicts were the subject of challenges based on alleged Internet-related juror misconduct. What is to be done about it? Frankly, we aren’t sure. Nor is anyone else, that we know of. But certainly studying the problem on a comprehensive basis is in order. And we hope that our conferences, and the nascent discussions we’ve begun with attorneys, judges, court officials and others will aid in this process. It simply does not stand to reason that our citizenry (particularly the young) has come to expect and rely on a new social media reality in two branches of our government, while adhering to the status quo in the third.

Ben Holden Reynolds Courts & Media Law Journal

xi


Correction The URL for one of the articles in the “For Further Reading” section in the spring issue of the Journal (vol. 1, p. 213-14), was out-of-date. The correct URL for Ellen Brickman, et al., How Juror Internet Use Has Changed the American Jury Trial, 1 J. Ct. Innovation 287 (2008), is http://www.julieblackman.com/docs/JCI%20Article.pdf.

xii

Volume 1, Issue 3


Preface

Modern Media in the Courts II: Cameras and Beyond

T

he announcement of the verdict in the Casey Anthony murder trial in early July was a ratings bonanza for television news. HLN (formerly Headline News), where host Nancy Grace’s obsession with the trial seemed to take over the entire network, almost doubled its viewership and saw its highest ratings since the channel was created.1 ABC and CBS quickly put together specials that aired the evening of the verdict.2 And the Pew Center for the People and the Press found that verdict was the most closely followed news story of the week.3 What made this coverage possible, of course, were the cameras that allowed viewers nationwide to watch all of the testimony in the case. There were actually four cameras in the courtroom – two still and two video – and two photographers who were assigned seats in the first row.4 The video was streamed to various television and cable stations, and online; while the still photos were transmitted to news outlets via the Internet.5 These cameras were literally the lens through which the public was able to see the workings of the judicial system in that case. The sights and sounds from the cameras in that Orlando courtroom were available live and unfiltered on radio, television and the web, and were the basis for coverage by news organizations around the world. In our wired world, for the public to know, see and hear what is going on in the courts, still and video cameras must be present in the courtroom. Yet some courts are still deliberating the wisdom of allowing cameras into courtrooms. Within just the past few months, Connecticut approved cameras in criminal proceedings, and South Dakota allowed cameras in courts for the first time, joining the majority of state courts that now allow coverage, subject to limitations that vary from state to state. And in recent years there have been hot debates – and extensive litigation – over efforts to

1. Lucas Shaw, The Casey Anthony Trial: How Nancy Grace Launched a Media Frenzy, The Wrap, July 5, 2011, http://www.thewrap.com/media/column-post/casey-anthony-nets-hln-28820. 2. Id. 3. Pew Center for People and the Press, Casey Anthony Verdict Top Story for Public and Social Networkers, July 13, 2011, http://people-press.org/files/legacy-pdf/7-13-11%20NII%20Final.pdf. 4. Tom Burton, Courtroom cameras and the Casey Anthony trial, Orlando Sentinel, May 16, 2011, http://articles.orlandosentinel.com/2011-05-16/multimedia/os-courtroom-cameras-casey-anthonytrial-20110516_1_casey-anthony-trial-courtroom-cameras-murder-trial. 5. Id. Reynolds Courts & Media Law Journal

219


Modern Media in the Courts II have cameras cover a case over music downloads in Massachusetts6 and a constitutional challenge to California’s Proposition 8 against gay marriage.7 Meanwhile, the federal trial and circuit courts, spurred by a not-so-gentle push from Congress, are embarking on a second trial of cameras in selected courtrooms. And while the Supreme Court remains resistant to allowing cameras to be present at its proceedings, the Court has opened up a bit by posting recordings and transcripts of oral arguments on its website. While the technology has changed, the issues regarding cameras in the courts remain. So, as a follow up to the Journal’s last issue, which focused on questions regarding social media in the courts, this issue of the Reynolds Courts & Media Law Journal focuses on the questions of the cameras that feed the media – traditional and new – coverage of the judicial system. In this issue, Mickey H. Osterreicher, general counsel of the National Press Photographers Association, revisits the history of the camera in the courtrooms issue, with a focus on recent developments including the new federal cameras experiment. Tony Mauro, who has covered the U.S. Supreme Court for more than 30 years, writes about the long-running battle over cameras in the High Court. And Paul Lambert proposes a way to use modern technology to finally answer one of the questions at the heart of the debate over cameras in the courts: are cameras really a distraction to trial participants? Finally, I have put together a compilation and analysis of the various federal and state jury instructions on juror exposure to information about cases, with an emphasis on how these instructions deal with and apply to activities such as texting, tweeting or posting Facebook updates about a case, and doing research online. Public access to the courts is a fundamental principle of democracy, as are the rights of litigants to fair trials. And there are legitimate concerns about trials becoming a “media circus.” But with the media – not just cameras, but also smartphones, tablets and other devices – coming into the courts, we hope that this issue of the Journal provides a framework for looking at these concerns, and how the courts and media can work together to play their separate but complementary roles.

6. See Capitol Records, Inc. v. Alaujan, 593 F.Supp.2d 319 (D.Mass. 2009) (allowing cameras), mandamus granted, In re Sony BMG Music Entertainment, 564 F.3d 1 (1st Cir. 2009) (disallowing cameras), cert. denied, Tenenbaum v. Sony BMG Music Entertainment, 130 S.Ct. 126, 175 L.Ed.2d 234 (2009). 7. See Hollingsworth v. Perry, 588 U.S. ___, 130 S. Ct. 705, 175 L. Ed. 2d 657 (Jan, 13, 2010) (barring cameras from trial). The subsequent appellate arguments in the case, Perry v. Schwarzenegger, No. 10-16696 (9th Cir. argued Dec, 6, 2010), were televised under the Ninth Circuit’s rule allowing such cameras.

220

Volume 1, Issue 3


Cameras in the Courts: The Long Road to the New Federal Experiment Mickey H. Osterreicher We will have a man on the moon before there will be cameras in this courtroom. – Supreme Court Chief Justice Earl Warren1 I think the case is so strong, that I can tell you the day you see a camera come into our courtroom it’s going to roll over my dead body. – Supreme Court Justice David H. Souter2 I have had positive experiences with cameras [on the Second Circuit Court of Appeals] when I have been asked to join experiments using cameras in the courtroom. I have participated. I have volunteered. – Supreme Court Nominee Sonia Sotomayor3 I think it would be a terrific thing to have cameras in the courtroom. When you see what happens there [the U.S. Supreme Court], it’s an inspiring sight . . . you’re really seeing an institution of government at work . . . . A lot of [the issues] the American people should be really concerned about and should be interested in so I think it would be a great thing for the institution and more important I think it would be a great thing for the American people.” – Supreme Court Nominee Elena Kagan4

T

he sentiments expressed by Chief Justice Warren and Justice Souter regarding cameras in the Supreme Court still linger today, with cameras still banned from the U.S. Supreme Court. But some headway is being made, as shown by the recent comments of Justices Sotomayor and Kagan in their confirmation hearings. And now the federal courts – building on the experience in the state courts – are embarking on a second “experiment” to permit cameras in federal court. The prolonged “experimental” status of cameras in federal courts stands in sharp con-

1. According to First Amendment attorney Floyd Abrams, Warren said this to one of his clerks. Albert Scardino, Courtoom TV Is a Fixture, Even as New York Is Deciding, N.Y Times, Jan. 22, 1989, http:// www.nytimes.com/1989/01/22/weekinreview/ideas-trends-steinberg-live-courtroom-tv-fixture-evennew-york-deciding.html. 2. On Cameras in Supreme Court, Souter Says, ‘Over My Dead Body,’ Associated Press, Mar. 30, 1996, available at http://www.nytimes.com/1996/03/30/us/on-cameras-in-supreme-court-souter-saysover-my-dead-body.html. 3. Judge Sonia Sotomayor Confirmation Hearing, Day 2, Part 2, July 14, 2009, http://www.c-spanvideo. org/videoLibrary/clip.php?appid=557606253. Putting that belief into practice, Sotomayor allowed her swearing-in to be the first open to electronic media coverage. See Sotomayor ceremony 1st on TV, RBR. com/TBR.com, Aug. 7, 2009, http://www.rbr.com/media-news/16294.html. 4. Judge Elena Kagan Confirmation Hearing, Day 2, Part 1, June 29, 2010, http://www.c-spanvideo.org/ program/KaganConfirm. Reynolds Courts & Media Law Journal

221


Cameras in the Courts trast to the experience in almost every state, which all—except for the District of Columbia—permit still photographic coverage and/or audio-visual coverage of trial and/or appellate court proceedings, albeit to varying degrees.5 In the United States there has always been a special, although strained, relationship between the press and the judiciary, rooted in the tension between the First Amendment provision that “Congress shall make no law . . . abridging the freedom of speech, or of the press;”6 and the Sixth Amendment guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”7 At the same time, the press has always been the gadfly of government, constantly biting the hand that protects it. No matter how irksome the press may be, all three branches of government have distinctly acknowledged the intrinsic role that the press plays in informing the public. A press free of unconstitutional restraints is the outside driving force behind a viable and dynamic governmental system of checks and balances. This conflict has only been brought into sharper focus by the evolution of the “press” into the technologically advanced digital news media of 2011. But there have been ongoing issues regarding media use of these new technologies in covering the courts. Despite widespread acceptance elsewhere, there are still concerns within the federal judiciary, and restrictions remain on the use of still and audio-visual cameras to record and broadcast court proceedings in state court. And new devices and technologies have led to new questions: Can observers blog from a courtroom? Can they send a text or a tweet? Take a photograph or video using a cell phone? Access the Internet at all? The imminent start of the federal court’s second experiment with cameras in courtrooms, plus trends and developments including Congressional pressure on the courts to allow camera coverage and movements in various courts to change the rules barring camera coverage of court proceedings, are continuing the trend of courts opening to camera and other electronic coverage. This has progressed far in most state courts, and it is likely that similar coverage will soon become accepted in federal courts – even the U.S. Supreme Court – as well.

The Evolution of Cameras in the Courtroom

I

n order to fully understand the latest federal pilot program of courtroom cameras, beginning in July 2011,8 it is important to look back at the evolution of trial coverage by the media and at the organizations and platforms that now play a leading role in coverage of the courts. In the early years of the 20th century, still and movie cameras were generally allowed in courtrooms, pursuant to the discretion of the presiding judge.9

The Lindbergh Baby Case This changed with the trial of Bruno Hauptmann, who was tried for the kidnapping and murder of Charles A. Lindbergh III, the infant son of the world-renowned aviator Charles 5. See Radio Television Digital News Ass’n, Cameras in the Court: A State-By-State Guide (2011), http://www.rtnda.org/pages/media_items/cameras-in-the-court-a-state-by-state-guide55.php. 6. U.S. Const. amend. I. 7. U.S. Const. amend. VI. 8. See infra pp. 250-255, for a discussion of this program. 9. See, e.g., Ex parte Sturm, 152 Md. 114, 136 A. 312, 51 A.L.R. 356 (1927) (dismissing appeals of contempt citations for violations of trial court’s order barring photography of criminal defendant). See also People v. Munday, 280 Ill. 32, 67, 117 N.E. 286, 300 (1917) (prohibiting still or newsreel photography as incongruous “with the dignity a court should maintain, or with proper and orderly conduct of its business”).

222

Volume 1, Issue 3


Cameras in the Courts Lindbergh (the first person to fly solo across the Atlantic). A brief description of the trial shows the carnival it became (and also shows how history repeats itself ): As many as 800 newsmen and photographers ... helped turn the tiny town of Flemington, N.J., into a midsummer Mardi Gras. They were joined by the great figures of stage and screen, United States senators, crooners and social celebrities, and as many as 20,000 curious nobodies on a single day ... The small courtroom became a 24-hour news and propaganda bureau ...10

Hauptmann was convicted, but not before both still photographers and their newsreel counterparts were barred from the courtroom after violating the presiding judge’s order not to film while he was on the bench.11 Despite the tumult in courtroom, the conviction was affirmed.12 But the conduct of the news media both inside and outside the courtroom during the Hauptmann trial was the focus of worldwide criticism. Few cases in the annals of American crime received wider attention or gave greater impetus to criticism of the press than the Lindbergh kidnapping trial, which may have been a watershed for court reporting in America. Never again would the press descend like vultures upon a defendant without risking the wrath of peers, readers and the court system itself.13

The ABA Reacts Comments like this led the American Bar Association in 1937 to adopt Canon 35 as part of its Canons of Professional and Judicial Ethics. The Canon stated in pertinent part: Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the courtroom, during sessions of the court or recesses between sessions, and the broadcasting of court proceedings are calculated to detract from the essential dignity of the proceedings, degrade the court and create misconceptions with respect thereto in the mind of the public and should not be permitted.14

Although only advisory, with no force of law, Canon 35 “was substantially adopted or approved of by a majority of the states.”15 The federal courts followed suit, enacting Rule 53 of the Federal Rules of Criminal Procedure, which stated that: “[t]he taking of photographs in the courtroom during the progress of judicial proceedings or radio broadcasting of judicial proceedings from the courtroom shall not be permitted by the court.”16 In 1962, the 10. D. Gillmor & J. Barron, Mass Communication Law, Cases & Comment 392 (2d ed. 1974) 11. Michael Kronenwetter, Free Press vs. Fair Trial: Television and Other Media in the Courtroom 40 (1986). 12. State v. Hauptmann, 115 N.J.L. 412, 443-45, 180 A. 809, 827-28 (N.J. 1935), cert. denied, 296 U.S. 649 (1935). While Hauptmann was executed in 1936, the question of his guilt has remained controversial. See Hauptmann v. Wilentz, 570 F.Supp. 351 (D. N.J.,1983) (dismissing civil rights suit by Hauptmann’s widow against investigators and prosecutors of her husband), aff ’d, 770 F.2d 1070 (3rd Cir. 1985) (table), cert. denied, 474 U.S. 1103 (1986). 13. Gillmor & Barron, supra note 10, at 392. 14. 62 A.B.A. Rep. 1134-35 (1937). 15. Charlotte A. Carter, Media in the Courts 6 (1981), available at http://contentdm.ncsconline.org/ cgi-bin/showfile.exe?CISOROOT=/ctmedia&CISOPTR=5 (citing D. Gillmor, Free Press and Fair Trial 23 (1966)). 16. Fed. R. Crim. Pro. 53 (2001); see also Richard B. Kielbowicz, The Story Behind the Adoption of the Ban on Courtroom Cameras, 63:1 Judicature 14-23 (June-July 1979). After remaining unchanged since the time of its adoption, the language of the rule was revised in 2002 “as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules,” but “[t]hese changes are intended to be stylistic only . . . .” Advisory Committee Reynolds Courts & Media Law Journal

223


Cameras in the Courts Judicial Conference of the United States expanded the courtroom ban on cameras to the halls of courthouses as well: Resolved, That the Judicial Conference of the United States condemns the taking of photographs in the courtroom or its environs in connection with any judicial proceeding, and the broadcasting of judicial proceedings by radio, television, or other means, and considers such practices to be inconsistent with fair judicial procedure and they ought not to be permitted in any federal court.17

As a result of the ABA and federal provisions, from the mid-1930s through the early 1950s, there was a per se ban on cameras from state and federal courtrooms nationwide, But as time went on, not all states chose to abide by Canon 35. Various state experiments allowing cameras in the courtroom brought the freedom and power of the press to a point where the Supreme Court had to decide the question of whether allowing criminal trials to be televised violated the constitutional rights of the accused. The simultaneous dogmatic evolution of the rights of criminal defendants under the Fifth18 and Fourteenth19 Amendments coextensively opposed the developing tenets of the free speech and press provisions of the First Amendment20 and the fair trial rights of the Sixth Amendment.21

The Supreme Court Steps In In a progression of cases over 100 years, the U.S. Supreme Court held that publicity prior to and during a trial can prejudice a jury (and jury pool), thus depriving a defendant of the right to a fair trial. One of the earliest cases took place in 1878, when the High Court found that it was not necessary for jurors to know nothing about the case, only that they be able to “render a verdict based on the evidence presented in court.”22 The cases involving prejudice due to publicity then evolved from one in which the burden was placed on the defendant;23 through one in which the defendant, although introducing such evidence, was held to have failed to meet his burden;24 to one in which the defendant presented evidence of prejudice, which the Court found to be so prevalent throughout the community at the time of the trial that it constituted “clear and convincing” evidence of substantial prejudice, despite the jurors’

Notes, Fed. R. Crim. Pro. 53 (2002). The revised rule reads as follows: “Except as otherwise provided by a statute or these rules [to allow for videoconferencing and the like], the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.” Fed. R. Crim. Pro. 53 (2011) (as amended Apr. 29, 2002, eff. Dec. 1, 2002). 17. U.S. Jud. Conf., Annual Rpt. of the Proceedings of the Jud. Conf. of the U.S. 10 (Mar. 8-9, 1962). 18. In pertinent part, the Fifth Amendment provides that: “No person shall . . . be deprived of life, liberty or property, without due process of law.” U.S. Const. amend. V. 19. In pertinent part, the Fourteenth Amendment provides that: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law.” U.S. Const. amend. XIV, §1. 20. “Congress shall make no law … abridging the freedom of speech, or of the press …” U.S. Const. amend. I. 21. In pertinent part this amendment provides that, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed ….” U.S. Const., amend. VI. 22. Reynolds v. United States, 98 U.S. 145, 157 (1878) (rejecting challenge of conviction for alleged lack of juror impartiality). 23. Id. 24. Stroble v. California, 343 U.S. 181, 193 (1952).

224

Volume 1, Issue 3


Cameras in the Courts statements that they were capable of rendering an impartial verdict.25 The influence that lurks in an opinion once formed is so persistent that it unconsciously fights detachment from the mental process of the average man.26

The concept of “denial of due process” became more developed when the Court held that a trial court’s refusal to grant a change of venue motion made after the third television broadcast of a pretrial confession by the defendant in a murder trial was a denial of due process. For anyone who has ever watched television the conclusion cannot be avoided that this spectacle, to the tens of thousands of people who saw and heard it, in a very real sense was Rideau’s trial -- at which he pleaded guilty to murder. Any subsequent court proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality.27

One observer has speculated that “[t]he Court’s attitude toward fair trial/free press problems also must have been affected by the Chief Justice’s service on the Warren Commission,” which investigated the assassination of President Kennedy and its aftermath.28 The commission’s final report was skeptical of the media’s asserted right to report—and the public’s right to know—details about the evidence against the alleged assassin. Neither the press nor the public had a right to be contemporaneously informed by the police or prosecuting authorities of the details of the evidence being accumulated against [assassin Lee Harvey] Oswald. Undoubtedly the public was interested in these disclosures, but its curiosity should not have been satisfied at the expense of the accused’s right to a trial by an impartial jury. The courtroom, not the newspaper or television screen, is the appropriate forum in our system for the trial of a man accused of a crime.29

Estes v. Texas These cases illustrating the conflict between press behavior and judicial attitudes led to the landmark decision in Estes v. Texas.30 The trial in this case had received national media attention because the defendant, Billie Sol Estes, was a Texas millionaire and also a friend and supporter of Presidents Kennedy and Johnson.31 Estes was convicted of swindling, and appealed on the grounds that the televising of pretrial hearings, and the trial itself, over the objection of the defendant was a constitutional violation.32 The Supreme Court reversed the conviction in a flurry of six separate opinions, which resulted in a 5-4 decision for Estes. The various opinions presaged today’s arguments, both pro and con, over televising federal court proceedings. In his opinion for the Court, Justice Thomas Clark held that the defendant was “deprived of his right under the Fourteenth Amendment to due process by the televising and broadcasting of his trial.”33 Justice Clark justified disparate treatment of print reporters - contrasted with 25. Irwin v. Dowd, 366 U.S. 717, 723 (1961). 26. Id. at 727 (citations omitted). 27. Rideau v. Louisiana, 373 U.S. 723, 726 (1963) (emphasis in original). 28. Benno C. Schmidt, Nebraska Press Association: An Expansion of Freedom and Contraction of Theory, 29 Stan. L. Rev. 431, 439 (1977). The commission was formally known as the President’s Commission on the Assassination of President Kennedy. 29. Rpt. of President’s Comm’n on the Assassination of President Kennedy 240 (1964) (emphasis added). 30. Estes v. Texas, 381 U.S. 532 (1965). 31. Carter, supra note 15, at 12. 32. Estes, 381 U.S. at 535-36. 33. Id. Reynolds Courts & Media Law Journal

225


Cameras in the Courts still and video photographers - in courtrooms, based on the disruptions that the latter would allegedly cause. Nor can the courts be said to discriminate where they permit the newspaper reporter access to the courtroom. The television and radio reporter has the same privilege. All are entitled to the same rights as the general public. The news reporter is not permitted to bring his typewriter or printing press. When the advances in these arts permit reporting by printing press or by television without their present hazards to a fair trial we will have another case.34 …. It is said that the ever-advancing techniques of public communication and the adjustment of the public to its presence may bring about a change in the effect of telecasting upon the fairness of criminal trials. But we are not dealing here with future developments in the field of electronics. Our judgment cannot be rested on the hypothesis of tomorrow but must take the facts as they are presented today.35

In his concurrence in Estes, Chief Justice Warren was not willing to make any concessions to the electronic media, regardless of any future technological developments. Instead, in keeping with the context of the Warren Commission’s statements just a year before this case,36 Warren supported the principle that broadcasting of a criminal trial was a Sixth Amendment violation per se.37 The prejudice of television may be so subtle that it escapes the ordinary methods of proof, but it would gradually erode our fundamental conception of trial. … We must take notice of the inherent unfairness of television in the courtroom and rule that its presence is inconsistent with the ‘fundamental conception’ of what a trial should be.38

Warren also rejected the argument that allowing cameras abridged the First Amendment rights of the electronic media more than those of the print media. The guarantee of a public trial confers no special benefit on the press, the radio industry or the television industry. …. So long as the television industry, like the other communications media, is free to send representatives to trials and to report on those trials to its viewers, there is no abridgment of the freedom of press.39

Justice Harlan’s separate concurrence pointed out the limited scope of the Court’s majority opinion, noting that only “four members of the majority who unreservedly join the Court’s opinion would resolve those questions [of a per se constitutional rule] now.”40 He continued to distinguish the Estes decision from previous and future cases. The question is fraught with unusual difficulties. Permitting television in the courtroom undeniably has mischievous potentialities for intruding upon the detached atmosphere which should always surround the judicial process. Forbidding this innovation, however, would doubtless impinge 34. Id. at 540 (emphasis added). 35. Id. at 552-53 (emphasis added). 36. Carter, supra note 15, at 12. 37. Estes, 381 U.S. at 565 (Warren, C.J., concurring) (“I believe that it violates the Sixth Amendment for federal courts and the Fourteenth Amendment for state courts to allow criminal trials to be televised to the public at large.”). 38. Id. at 578 (footnote omitted), 580. 39. Id. at 583, 585. 40. Id. at 590 (Harlan, J., concurring).

226

Volume 1, Issue 3


Cameras in the Courts upon one of the valued attributes of our federalism by preventing the States from pursuing a novel course of procedural experimentation. My conclusion is that there is no constitutional requirement that television be allowed in the courtroom, and, at least as to a notorious criminal trial such as this one, the considerations against allowing television in the court-room so far outweigh the countervailing factors advanced in its support as to require a holding that what was done in this case infringed the fundamental right to a fair trial assured by the Due Process Clause of the Fourteenth Amendment.41

Justice Harlan was not only willing to be more open-minded, but in fact predicted the holding in the cases that followed Estes when he stated that … the day may come when television will have become so commonplace an affair in the daily life of the average person as to dissipate all reasonable likelihood that its use in courtrooms may disparage the judicial process. If and when that day arrives the constitutional judgment called for now would of course be subject to re-examination in accordance with the traditional workings of the Due Process Clause.42

Justice Stewart, joined in dissent by Justices Black, Brennan, and White, expanded on that notion with some prognostications of his own. We deal here with matters subject to continuous and unforeseeable change – the techniques of public communication. In an area where all the variables may be modified tomorrow, I cannot at this time rest my determination on hypothetical possibilities not present in the record of this case. There is no claim here based upon any right guaranteed by the First Amendment. But it is important to remember that we move in an area touching the realm of free communication, and for that reason, if for no other, I would be wary of imposing any per se rule which, in the light of future technology, might serve to stifle or abridge true First Amendment rights. …. The suggestion that there are limits upon the public’s right to know what goes on in the courts causes me deep concern. The idea of imposing upon any medium of communications the burden of justifying its presence is contrary to where I had always thought the presumption must lie in the area of First Amendment freedoms.43

Despite the fact that only a plurality of the Court in Estes was of the opinion that televising trials was inherently prejudicial, the effective ban on cameras in the courtroom continued for the next ten years, with the Court taking a more proactive role in mandating lower courts to “take affirmative action to protect a defendant’s right to a fair trial.”44 This was the case in Sheppard v. Maxwell,45 where, although the bulk of prejudicial publicity came in printed form (newspapers), the pretrial television coverage was painted by the Court with the same broad stroke. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measure to ensure that the balance is never weighed against the accused.46

41. Id. at 587. 42. Id. at 595-96. 43. Id. at 603-04, 614-15 (Stewart, J., dissenting) (emphasis added). 44. Sheldon Portman, The Defense of Fair Trial from Sheppard to Nebraska Press Association: Benign Neglect to Affirmative Action and Beyond, 29 Stan. L. Rev. 393, 406 (1977). 45. 384 U.S. 333 (1966) (holding that pretrial publicity inherently prejudices defendant’s right to a fair trial). 46. Id. at 357. Reynolds Courts & Media Law Journal

227


Cameras in the Courts

The Courts Open Up to the (Print) Press Throughout the 1970s a series of cases continued the evolutionary progress of allowing cameras in the courtroom on a regular basis.47 In Nebraska Press Association v. Stewart, the Court held that a “prior restraint,” in the form of an order barring the press from reporting on a defendant’s confessions, “was the most serious and least tolerable infringement on First Amendment Rights.”48 In Landmark Communications, Inc. v. Virginia, the Court held in favor of First Amendment guarantees and against a contempt citation against a newspaper that published details of a judicial discipline case, contrary to a Virginia statute.49 But a year later, in Gannett Co. v. DePasquale,50 the Court regressed when it upheld a lower court ruling which barred the press and public from a pretrial hearing in order to limit prejudicial publicity. The end result was a setback for media access to the courts. “No sooner was the decision [in Gannett Co. v. DePasquale] handed down than courts around the country began to shut out reporters, not just from pretrial hearings but from trials as well.”51 As the decisions in Estes and its progeny fueled the debate over cameras in the courtroom in the 1960s and 70s, the media were concurrently evolving through technological advances which made equipment less obtrusive;52 and through increasing self-awareness regarding “their responsibility as the ‘conscience of the community.”53 As part of this evolution, people in this era were becoming more comfortable with television in general and television news in particular “as a valid journalistic medium.”54 What seemed even more evident was the generational gap between those who had grown up before television and those who could not “remember what life was like without it.”55 There were also a number of studies that pointed to a new kind of evolution – more people were getting their news from television than from newspapers.56

The ABA Reconsiders These factors led the ABA to re-examine Canon 35, which had been renumbered as Canon 3A(7) in 1972. The Canon had already gone through its own evolution, allowing cameras in the courtroom for limited ceremonial, educational, and administrative purposes.57 Be 47. This trend continued despite the fact that the new Chief Justice, Warren Burger, was “a steadfast foe of cameras in court.” ABA Keeps Courtroom TV Ban, News Media & the Law, May-June 1979, at 22. In fact, Burger went so far as to challenge the right of the media to have access to public events: when he encountered NBC’s Carl Stern [a lawyer himself ] and his crew at a breakfast at which the chief justice was to receive an award, he walked up to Stern and said, “You leave or I’ll leave.” Id. 48. 427 U.S. 539, 559 (1976). 49. 435 U.S. 829 (1978). 50. 443 U.S. 368 (1979). 51. Susanna Barber, News Cameras in the Courtroom: A Free Press – Fair Trial Debate 44 (1987). 52. Carter, supra note 15, at 25. 53. P. Baker, Report to Supreme Court of Florida Re: Conduct of Audio-Visual Trial Coverage: Florida v. Zamora, Case No. 77-25123-A, at 14 (1977). 54. S.L. Wasby, Laying Estes to Rest: A Case Note, 5 Just. Sys. J. 58, 64 (1979). For an examination of current trends, see infra note 87. 55. Id. 56. Roper Org., Inc., Public Perceptions of television and Other Mass Media: A Twenty Year Review, 1959-1978 (April 1979). This may be explained in part because the country had just experienced the civil rights movement, the Vietnam War and Watergate, all of which contributed to a positive view of the press as an institution which continued to both inform and reform society. Barber, supra note 51, at 15. 57. Barber, supra note 51, at 15.

228

Volume 1, Issue 3


Cameras in the Courts tween 1978 and 1979, the ABA Committee on Fair Trial and Free Press put forth a number of resolutions on the issue, which marked a reversal from the group’s previous stance regarding courtroom cameras. In final form, the resolutions read: Television, radio and photographic coverage of judicial proceedings is not per se inconsistent with the right to a fair trial. Subject to rule(s) established under the supervisory authority of the highest appellate court in the jurisdiction, such coverage may be permitted if it would be unobtrusive and would not distract the attention of the trial participants, demean the dignity of the proceedings, or otherwise interfere with the fair administration of justice.58

Unfortunately, the resolution failed by a 146-153 vote of the ABA’s House of Delegates,59 leaving Canon 3A(7) intact.60 Ironically, in the week preceding the ABA vote, the Conference of Chief Justices, representing the chief justices of the highest courts of all 50 states, had just voted 44-1 to allow television cameras back into court.61 The ABA House of Delegates also ignored the fact that at the moment of its vote, 23 states already allowed television coverage of trial and/or appellate courts on either a permanent or experimental basis.62 Commenting on this sad state of affairs, U.S. Appeals Court Judge Alfred T. Goodwin stated, “The cost of the per se rule . . . is the denial of public information to the growing number of citizens who rely on television and radio for their news.”63

Chandler v. Florida While this debate raged on, the state of Florida had been steadily progressing toward allowing cameras back into its courtrooms, which ultimately lead to another challenge. In Chandler v. Florida,64 the Supreme Court held that the Constitution does not prohibit a state from experimenting with cameras in courtrooms authorized under a revised version of Canon 3A(7) adopted in Florida.65 Chief Justice Burger, delivering the opinion of the Court, noted that: in promulgating the revised Canon 3A(7), the Florida Supreme Court pointedly rejected any state or federal constitutional right of access on the part of photographers or the broadcast media to televise or electronically record and thereafter disseminate court proceedings.66

Burger’s majority opinion then quoted the Florida Supreme Court’s ruling allowing such broadcasting:

58. Alfred T. Goodwin, A Report on the Latest Rounds in the Battle Over Cameras in the Courts, 63:2 Judicature 75 (Aug. 1979). 59. Barber, supra note 51, at 16. 60. Canon 3A(7) was eventually removed from the ABA Code of Judicial Conduct on the grounds that the issue was more properly dealt with by rules adopted in each jurisdiction. Fed. Jud. Ctr., Electronic Media Coverage of Federal Civil Proceedings: An Evaluation of the Pilot Program in Six District Courts and Two Courts of Appeals 3 (1994), available at http://www.fjc.gov/public/pdf. nsf/lookup/elecmediacov.pdf/$file/elecmediacov.pdf (citing ABA Stdg. Comm. on Ethics & Prof. Resp., Final Draft of Recommended Revisions to ABA Code of Jud. Conduct [Dec. 1989]). 61. Id. (citing P. Douglas, Media Technology, Fair Trial, and the Citizen’s Right to Know, 44 N.Y.S. Bar J. 364, 367 [Oct. 1982]). 62. Id. 63. Goodwin, supra note 58, at 76-77. 64. 449 U.S. 560 (1981). 65. Id. at 583. 66. Id. at 569. Reynolds Courts & Media Law Journal

229


Cameras in the Courts While we have concluded that the due process clause does not prohibit electronic media coverage of judicial proceedings per se, by the same token we reject the argument of the [television stations seeking to cover court proceedings] that the first and sixth amendments[sic] to the United States Constitution mandate entry of the electronic media into judicial proceedings.67

In Chandler, the Court also took notice of the Florida Supreme Court’s statement, after its review of the experimental program, that “on balance there [was] more to be gained than lost by permitting electronic media coverage of judicial proceedings subject to standards for such coverage.”68 Although less than three minutes of the lower court trial were broadcast,69 the question presented in Chandler forced the Court to revisit Estes. Stating that “[t]his Court has no supervisory jurisdiction over state courts, and, in reviewing a state-court judgment, we are confined to evaluating it in relation to the Federal Constitution,”70 the Supreme Court relied on a “states’ rights” rationale that “[f ]orbidding this innovation … would doubtless impinge upon one of the valued attributes of our federalism by preventing the states from pursuing a novel course of procedural experimentation.”71 But in a surprising change of tone from its prior decision in Estes, the majority opinion in Chandler stated: … we conclude that Estes is not to be read as announcing a constitutional rule barring still photographic, radio, and television coverage in all cases and under all circumstances. It does not stand as an absolute ban on state experimentation with an evolving technology, which, in terms of modes of mass communication, was in its relative infancy in 1964, and is, even now, in a state of continuing change.72

Justice Stewart, who vigorously dissented in Estes, concurred in Chandler. He pointed out that in both Estes and Chandler the Court found that television cameras in a criminal trial were an “admittedly unobtrusive presence,”73 yet the majorities in those cases reached opposite conclusions.74 “Rather than join what seems to [be] a wholly unsuccessful effort to distinguish [the Estes] decision,” he wrote, “I would now flatly overrule it.”75

Cameras in the Courts Today As the Supreme Court’s opinion of cameras in courtrooms evolved, more and more states began experimenting with the technology, with most states eventually deciding, either by court decision, court rule, or legislation, to generally allow cameras in courts, subject to restrictions that vary from state-to-state. Currently, every state allows some form of recording and broadcasting of at least some court proceedings,76 although some states limit this to appellate proceedings.77 67. Petition of Post-Newsweek Stations, Florida, Inc., 370 So. 2d 764, 774 (Fla. 1979). 68. Chandler, 449 U.S. at 565 (quoting Petition of Post-Newsweek Stations, Florida, Inc., 370 So. 2d at 780). 69. Id. at 568. 70. Id. at 570. 71. Id. at 571. 72. Chandler, 449 U.S. at 573-754 (footnote omitted). 73. Id. at 586 (Stewart., J., concurring in the result). 74. Id. (Stewart., J., concurring in the result). 75. Id. at 583 (Stewart, J., concurring in the result). 76. The local courts of the District of Columbia ban cameras from virtually all proceedings. See D.C. Super. Ct. R. Crim. Pro. 53(b); D.C. Super. Ct. R. Civ. Pro. 203(b); D.C. Super. Ct. Juv. Proceed. R. 53(b), and D.C. Super. Ct. Dom. Rels. Rule 203(b). 77. See Radio Television Digital News Ass’n, Cameras in the Court: A State-By-State Guide (2011), http://www.rtnda.org/pages/media_items/cameras-in-the-court-a-state-by-state-guide55.php.

230

Volume 1, Issue 3


Cameras in the Courts But the federal courts have resisted this trend. Except for the first experiment with cameras in federal courts from 1991 through 1993,78 and the second such experiment, which is about to begin, “Judicial Conference policy does not allow courtroom proceedings in civil and criminal proceedings in the district courts to be broadcast, televised, recorded, or photographed for the purpose of public dissemination.79 In addition, Rule 53 of the Federal Rules of Criminal Procedure provides that “the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.”80 Except with respect to ceremonial proceedings and appellate proceedings, the Conference policy does not authorize the contemporaneous photographing, recording, or broadcasting of proceedings from the courtroom to the public beyond the courthouse walls.81

The Next Step Despite this resistance in the federal courts, the overall trend has been towards allowing cameras to cover courtroom proceedings, subject to some limitations that vary from state to state. With this record of courts continuing to do their work uninterrupted by the presence of cameras (with a few exceptions), combined with the Congressional and other pressure on the federal courts to let cameras in,82 it is probably just a matter of time until camera coverage of federal courts, including the Supreme Court, becomes accepted and routine.

Balancing Free Press and Fair Trial

W

hile the Supreme Court and the states changed their stances towards courtroom use of cameras, the Court also developed law on the balance of the First Amendment right of public and press access to court proceedings and criminal defendants’ Sixth Amendment rights to a fair trial.

Richmond Newspapers and Its Progeny In Richmond Newspapers, Inc. v. Virginia,83 the Court held that under the First Amendment the public, including the press, had a right of access to a criminal trial, because such proceedings had traditionally been open to the public.84 “What is significant for present purposes is that throughout its evolution, the trial has been open to all who care to observe,”85 Chief Justice Burger wrote in the plurality opinion. Burger added that, “the means used to achieve justice must have support derived from public acceptance of both the process and its results.”86 That public acceptance of the judicial process and its results derives from public understanding, which in itself must be based upon actual knowledge. In 2011 most such informa-

78. See pp. 239-240, infra, for a discussion of this experiment. 79. 10 Jud. Conf. of the U.S., Guide to the Judiciary Policy § 410.10 (rev. July 27, 2010). The policy makes an exception for ceremonial proceedings, as well as for presentation of evidence, perpetuation of the record, security, other purposes of judicial administration, and the photographing, recording, or broadcasting of appellate arguments. Id. 80. Fed. R. Crim. Proc. 53 (2011). 81. 10 Jud. Conf. of the U.S., Guide to the Judiciary Policy § 410.10 (rev. July 27, 2010). 82. See infra p. 241. 83. 448 U.S. 555 (1980). 84. Id. at 564 (plurality opinion of Burger, C.J.). 85. Id. 86. Id. at 571. Reynolds Courts & Media Law Journal

231


Cameras in the Courts tion comes from broadcast and cable/satellite television and Internet content, including audio-visual material on websites provided by once-traditional print media.87 Thus the ability of the press to disseminate information about trials via electronic coverage of court proceedings is a critical component in affording the public the modern equivalent of attending and observing court proceedings in person. Burger explained this in Richmond Newspapers. People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing. When a criminal trial is conducted in the open, there is at least an opportunity both for understanding the system in general and its workings in a particular case: … .... Instead of acquiring information about trials by firsthand observation or by word of mouth from those who attended, people now acquire it chiefly through the print and electronic media. In a sense, this validates the media claim of functioning as surrogates for the public. This “contribute[s] to public understanding of the rule of law and to comprehension of the functioning of the entire criminal justice system …”88

Justice Stewart, concurring in the judgment in Richmond Newspapers, wrote that “the right to speak implies a freedom to listen,”89 and that “[t]he right to publish implies a freedom to gather information.”90 Similarly, it could be argued that the right to broadcast implies a freedom to record images. Over the next six years, a series of cases – Globe Newspaper Co. v. Superior Court,91 Press-Enterprise Co. v. Superior Court [Press-Enterprise I]92 and Press-Enterprise Co. v. Superior Court [Press-Enterprise II]93 – further advanced the First Amendment right of access to criminal trials. While these cases did not grant the press and public “absolute access” to criminal proceedings,94 they held that “the circumstances under which the press and public can be barred from a criminal trial are limited.”95 Once again, the superseding rule was that the First Amendment right of access may only be overcome by a narrowly tailored, compelling governmental interest.96 87. In a June 2010 survey, 58 percent of respondents said they watched the news or a news program on television (including cable) yesterday; 44 percent got news electronically (this includes Internet sites, including newspaper web sites, cell phones, social networks and podcasts); 34 percent heard news on the radio; and 26 percent read a print newspaper. Pew Research Ctr for the People & the Press, Ideological News Sources: Who Watches and Why: Americans Spending More Time Following the News (2010), at 13-14, available at http://people-press.org/files/legacy-pdf/652.pdf. The survey has a margin of error of plus or minus 2.5 percentage points. Id. at 82. 88. Id. at 571, 572-73 (quoting Nebraska Press Ass’n, 427 U.S. at 587 (Brennan, J., concurring in judgment)). 89. Id. at 599 (Stewart, J., concurring in the judgment) (citing Kleindienst v. Mandel, 408 U.S. 753 (1972)). 90. Id. (citing Branzburg v. Hayes, 408 U.S. 665, 681). 91. Globe Newspaper Co. v. Super. Ct., 457 U.S. 596 (1982) (state’s interests in protecting minor victims of sex crimes from further trauma and embarrassment, or in encouraging victims to come forward and testify in a truthful and credible manner, did not justify the exclusion of the press and public from criminal trials). 92. Press-Enterprise Co. v. Super. Ct. [Press-Enterprise I], 464 U.S. 501 (1984) (guarantee of open criminal proceedings applies to voir dire examinations, and alternatives to closure must be considered). 93. Press-Enterprise Co. v. Super. Ct. [Press-Enterprise II], 478 U.S. 1 (1986) (First Amendment right of access to criminal proceedings applies to preliminary hearings as conducted in California). 94. Globe Newspaper Co., 457 U.S. at 606 (citing Richmond Newspapers, 448 U.S. at 581 n.18 (plurality opinion)). 95. Id. 96. Id. at 607.

232

Volume 1, Issue 3


Cameras in the Courts

The Limits of Access: U.S. v. Hastings Accordingly, the federal court system began to struggle with the same issues that had troubled the states with regard to cameras in the courtroom. In U.S. v. Hastings,97 the defendant, a former federal district court judge accused of taking a bribe,98 “moved the trial court to permit his trial to be televised, The superseding rule was that primarily relying on his Sixth Amendment the First Amendment right of right to a public trial.”99 Numerous news organizations then moved to intervene in access may only be overcome by support of the defendant’s motion, citing a narrowly tailored, compelling First Amendment rights and questioning the governmental interest. constitutional validity of Rule 53.100 After the trial court denied both motions, an expedited appeal was sought and granted.101 The federal appeals court’s opinion in this appeal came close on the heels of Supreme Court’s decision in Chandler, and is a study in microcosm of all the arguments and counterarguments regarding cameras in the courtroom. The court began with the proposition that the bar on cameras in federal courtrooms was “a ‘time, place, and manner’ regulation,”102 which under Supreme Court precedent “is constitutional if it is reasonable, [] if it promotes ‘significant governmental interests,’ [] and if the restriction does not ‘unwarrantedly abridge . . . the opportunities for the communication of thought.[]’”103 The crux of this restriction is one of “reasonableness” of the regulation,104 balanced against whether the rule is “necessary to further significant governmental interests.”105 The 11th Circuit applied this analysis in Hastings. “We can foresee no additional measure of confidence which might emanate merely from the different manner of media access, e.g., excerpts of live witnesses on the television screen, as opposed to an artist’s sketch,” the court declared in affirming the district court’s denial of the media’s request.106 “[W]e find that the media access sought here would advance First Amendment concerns only to a minimal degree, if at all.”107 The 11th Circuit noted that the Supreme Court had used this rationale to reject a Sixth Amendment challenge to Rule 53, concluding that the requirement that all criminal trials shall be public is “satisfied by the opportunity of members of the public and the press to attend the trial and to report what they have observed.”108 And while the media once again argued “that the ban on use of audiovisual equipment arbitrarily discriminates against 97. 695 F.2d 1278 (11th Cir. 1983). 98. Id. at 1280 n.6 99. Id. at 1279. 100. Id. at 1280. 101. Id. 102. Id. at 1282. 103. Id. (footnotes omitted) (quoting Young v. American Mini Theatres, Inc., 427 U.S. 50, 63 n.18 (1976); and Richmond Newspapers, Inc., 448 U.S. at 581 n.18). 104. Richmond Newspapers, 448 U.S. at 574. 105. Young v. American Mini Theatres, Inc., 427 U.S. 50, 63 n.18 (1976). 106. Hastings, supra, 695 F.2d at 1283. See also U. S. v. CBS, Inc., 497 F.2d 102, 106 (5th Cir.1974) (vacating order barring courtroom sketching and broadcast of sketches of subject trial, wherever created). 107. Id. 108. Id. at 1284 (citing Nixon v. Warner Communications, Inc., 435 U.S.589, 610 (1978)). Reynolds Courts & Media Law Journal

233


Cameras in the Courts radio and television reporters,”109 the court disagreed, maintaining the specious argument that “[w]hile the ban on televising affects television reporters, the rules also prohibit tape recording and still photography, thus affecting newspaper reporters as well.”110 The appeals court in Hastings cited “two other institutional interests”111 which it said supported barring cameras from the courtroom. The first was “an interest in preserving order and decorum in the courtroom.”112 The second was “an institutional interest in procedures which tend to insure a fair trial.”113 Unfortunately, even in light of the decision in Chandler “acknowledg[ing] that technological improvements and the safeguards embodied in Florida’s experiment may have muted some of the effects enumerated by the Estes court,”114 the Hastings court nevertheless held true to what it said were the tenets of the Estes ruling: that “television could impair the truth-finding function of the criminal trial,”115 as well as have a “probable adverse impact on jurors, witnesses, and other trial participants.”116 While agreeing with the Chandler court that, “the effect of television coverage on trial participants is ‘still a subject of sharp debate,’”117 the Hastings court gave more weight to the “institutional interest in procedures designed to increase the accuracy of the essential truth-seeking function of the trial”118 than to the argument that the “media activities [in Hastings] would be unobstrusive [sic].”119 The court dismissed the “unobtrusive” argument out of hand because of the per se ban found in Rule 53.120 Although the Court in Chandler had backed away from Estes’ effective per se ban of television coverage, the Hastings court still contended that: Promulgation of the current rules in a legislative-type manner is more appropriate than a case-bycase approach in light of the difficulty of detecting the adverse impact of media coverage, and in view of the minimal or nonexistent infringement on First Amendment concerns. Finally, judicial efficiency and economy are served by a per se rule.121

Based on this rationale, the Hastings court rejected the media’s First Amendment challenge to Rule 53 and its local equivalent, adding that “the issue is one that should be addressed to the appropriate rule-making authority.”122 The court later denied a petition by the media for rehearing en banc in Hastings,123 with Circuit Judge Hatchett’s lone dissent standing out as a voice of reason on this issue.124 109. Id. n.16. 110. Id. (citing Garrett v. Estelle, 556 F.2d 1274 (5th Cir. 1977) (reversing lower court finding that Texas rule barring death row interviews unconstitutional), cert. denied, 438 U.S. 914 (1978)). 111. Id.at 1283. 112. Id. (citing Illinois v. Allen, 397 U.S. 337, 343, (1970)). 113. Id. (citing Gannett, 443 U.S. at 398, 399 (Powell, J., concurring) (The government, as well as the defendant, has an interest in obtaining “just convictions.”). 114. Id. 115. Id. (citing Estes, 381 U.S. at 544-51). 116. Id. (citing Estes, 381 U.S. at 544-51). 117. Id. (quoting Chandler, 449 U.S. at 578). 118. Id. 119. Id. n.13. 120. Id. 121. Id. at 1284. 122. Id. 123. U. S. v. Hastings, 704 F.2d 559 (11th Cir. 1983) (denying reh’g en banc) (hereinafter Hastings II). 124. In addition to Judge Hatchett’s dissent, Judge Roney specially concurred with the denial of en banc review, writing that “Although I agree with Judge Hatchett … that the camera in a federal courtroom issue

234

Volume 1, Issue 3


Cameras in the Courts “[T]he institutional interests cited in support of the restriction are, at best, mere commendations for the ideals our judicial system strives to maintain,” Judge Hatchett wrote in his dissent.125 “At worst, they represent pretexts for an abhorrence to change and ignore the advances of modern day technology.”126 Citing “the defendant’s express waiver of any and all objections to a televised trial,”127 Hatchett wrote that “the justifications for the status quo [ban on cameras in federal courts] appear all the more implausible.”128 While acknowledging that “[p]reserving courtroom decorum and insuring fairness certainly merit top priority on a list of prerequisites for formal courtroom activities,”129 he noted that “[e]xperimental programs indicate … that both objectives can be accomplished despite the presence of television cameras,”130 and that surveys of participants cited in the Florida Supreme Court’s decision in Post-Newsweek Stations “clearly indicate that there is no such discernible effect.”131 Judge Hatchett concluded by stating that “when suitably circumscribed by appropriate and detailed standards, the public interests which favor electronic media coverage far outweigh the honestly perceived but unsubstantiated concerns over a possible lessening of courtroom decorum and fairness.”132

Federal Courts Continue the Ban Even in the face of such reasonable and logical arguments, the circuit courts continued to uphold the per se ban. In United States v. Edwards,133 the trial court rejected an application to televise the federal fraud and racketeering trial of Louisiana Governor Edwin W. Edwards. In affirming the denial, the circuit court, mimicking Justice Stewart’s concurrence in Richmond Newspapers, held that while “the press has a right of access to observe criminal trials, just as members of the public have such a right, the right of access therein was a right to attend, listen and report.”134 The appeals court went on to state that “[n]o case suggests that this right of access includes a right to televise, record, or otherwise broadcast trials.”135 In Westmoreland v. Columbia Broadcasting Sys., Inc., the Second Circuit held that the prohibition on cameras is constitutional, even where both parties consented to televising the trial.136 The rationale for barring cameras from federal courtrooms fails to acknowledge that despite that prohibition, trials of public interest will still be covered, as the Florida Supreme Court recognized in Post-Newsweek Stations:

is ripe for reconsideration by the appropriate rulemaking authority, I find no base in the law or in the Constitution that would permit either reversal or modification of the district court's order in this case by this Court.” Id. at 562 (Roney, J., specially concurring). 125. Id. at 560 (Hatchett, J., dissenting). 126. Id. 127. Id. 128. Id. 129. Id. 130. Id. 131. Id. at 561 (citing Post-Newsweek Stations, supra, 370 So.2d at 775). 132. Id. 133. 785 F.2d 1293 (5th Cir. 1983). 134. Id. at 1295. 135. Id.. 136. 752 F.2d 16, 22 (2d Cir. 1985). Reynolds Courts & Media Law Journal

235


Cameras in the Courts … it must be recognized that newsworthy trials are newsworthy trials, and that they will be extensively covered by the media both within and without the courtroom whether Canon 3A(7) is modified or not. Consequently, if it is deemed to be to the public advantage to permit electronic media coverage in the courtroom, it seems inappropriate to be dissuaded by honestly perceived but unsubstantiated concerns as to adverse psychological effects on participants.137

Justice Powell echoed this in his dissent from a Supreme Court decision upholding federal regulations prohibiting press interviews with prisoners. At some point official restraints on access to news sources, even though not directed solely at the press, may so undermine the function of the First Amendment that it is both appropriate and necessary to require the government to justify such regulations in terms more compelling than discretionary authority and administrative convenience. It is worth repeating our admonition in Branzburg that “without some protection for seeking out the news, freedom of the press could be eviscerated.”138

While the dissent addressed the issue of prison interviews, Powell’s language also applies to electronic coverage of federal court proceedings. In my view this reasoning also underlies our recognition in Branzburg that “news gathering is not without its First Amendment protections ... .” An informed public depends on accurate and effective reporting by the news media. No individual can obtain for himself the information needed for the intelligent discharge of his political responsibilities. For most citizens the prospect of personal familiarity with newsworthy events is hopelessly unrealistic. In seeking out the news the press therefore acts as an agent of the public at large. It is the means by which the people receive that free flow of information and ideas essential to intelligent self-government. By enabling the public to assert meaningful control over the political process, the press performs a crucial function in effecting the societal purpose of the First Amendment. That function is recognized by specific reference to the press in the text of the Amendment and by the precedents of this Court: …139

The Importance of Camera Access Similarly, in 1981 a federal district court took notice of the importance of television news coverage of trials. It cannot be denied that television news coverage plays an increasingly prominent part in informing the public at large of the workings of government. Many citizens likely rely on television as their sole source of news. Further, visual impressions can and sometimes do add a material dimension to one’s impression of particular news events. Television film coverage of the news provides a comprehensive visual element and an immediacy, or simultaneous aspect, not found in print media.140

Based on this statement, the district court held that the total exclusion of television from White House events was a clear violation of the First Amendment.141 Observing that the inclusion of the print media did not compensate for the exclusion of the electronic media, the court stated that … the unique continuous visual element of television news coverage will be denied to the public and the press. Such film imagery which is so vital to television reporting cannot meaningfully be replaced

137. Post-Newsweek Stations, supra, 370 So. 2d at 775-76. 138. Saxbe v. Washington Post Co., 417 U.S. 843, 860 (1974) (Powell, J., dissenting) (quoting Branzburg v. Hayes, 408 U.S. 665, 681 (1972)). 139. Id. at 863-64 (Powell, J. dissenting) (quoting Branzburg, at 707). 140. Cable News Network v. American Broadcasting Cos., 518 F. Supp. 1238, 1245 (N.D. Ga. 1981). 141. Id.

236

Volume 1, Issue 3


Cameras in the Courts by still photographs provided by the non-television participants in pool coverage. By totally excluding television participants, a complete visual record ... is lost forever.142

An example of the important role that a visual record of a court proceeding can play is that such a record can be used to assess witness credibility in a similar fashion as described in the Federal Rule of Evidence 607.143 “The demeanor of the witness on the stand may always be considered by the jury in their estimation of his credibility.”144 Public access “plays an important part as a security for testimonial trustworthiness ...;”145 in the modern age, this would include electronic coverage. Besides public access assisting in the judgment of witness credibility, electronic media coverage of court proceedings is also important as a check on the behavior of other courtroom players. A wholesome effect is produced, analogous to that secured for witnesses, upon all the officers of the court, in particular, upon judge, jury, and counsel. In acting under the public gaze, they are more strongly moved to a strict conscientiousness in the performance of duty. In all experience, secret tribunals have exhibited abuses which have been wanting in courts whose procedure was public.146

That “public gaze” is brought to bear by the camera. If it has any effect at all on courtroom participants, the presence of cameras enhances “strict conscientiousness,” while protecting against judicial abuses. The qualitative ability of viewers to see and hear what occurs in court is distinct from the “printed narrative” of the same event, whether from a verbatim record, an artist’s sketch or a reporters’ description. Through audio-visual coverage of trials and oral arguments, the public may observe the demeanor of the proceedings and the (usually) dignified manner in which cases are conducted and decided. More citizens are able to view and listen to cases of national significance than when there are only second-hand descriptions. Electronic coverage of those proceedings allows the public to, among other things, observe through the lens of the camera the unfiltered testimony of the witnesses, the advocacy of the participants, the demeanor of the justices, and the fair administration of justice. This in turn should foster a greater respect and understanding of the judicial system. There can be no blinking the fact that there is a strong societal interest in public trials. Openness in court proceedings may improve the quality of testimony, induce unknown witnesses to come forward with relevant testimony, cause all trial participants to perform their duties more conscientiously, and generally give the public an opportunity to observe the judicial system.147

Maintaining the Balance While it is difficult to balance the right of access to the courts and right to fair trials, the Courts have forged an equilibrium between these competing concerns, which allows for camera coverage of courtroom proceedings and in fact protects the parties’ interests in fair administration of justice. Rather than being part of the problem, the presence of cameras in the courtroom can be part of the solution.

142. Id. at 1246. 143. See Fed. R. Evid. § 607. 144. 3A Wigmore on Evidence § 946, at 783 (J. Chadbourn, ed., rev. 1976) (emphasis in original). 145. 6J Wigmore on Evidence § 1834, at 435 (J. Chadbourn, ed., rev. 1976). 146. Id. at 438. 147. Gannett Co. v. DePasquale, supra, 443 U.S. 368, 383 (1979). Reynolds Courts & Media Law Journal

237


Cameras in the Courts

Television and the Courts

I

t took almost 80 years for society in general and the state courts in particular to warm to the concept that permitting cameras in the courtroom on a regular basis had become a corollary of the notion of a public trial. By the 1980s the day had finally arrived “when television [became] so commonplace an affair in the daily life of the average person as to dissipate all reasonable likelihood that its use in courtrooms [would] disparage the judicial process.”148 After that, change came rapidly. Television itself was evolving from an electronic medium broadcast over the airwaves into one where the televised content was reaching homes in the United States through cable systems. With the inception of Cable Network News (CNN) in 1980, more Americans were able to watch regional and national events unfold day-to-day, if not minute-by-minute. “We now interrupt this program” bulletins are now almost as antiquated as the “town crier.” Television coverage of trials was soon to take on national implications. Although judges still continued to ban cameras from the courtroom (such as in the 1976 terrorism trial of Patty Hearst, and the 1980 murder trial of Jean Harris), for the most, part local news could not devote enough airtime for gavel-to-gavel coverage anyway. Therefore, it was surprising when CNN decided to televise, live, for the first time to a national audience, the re-trial of Claus von Bulow for the murder of his wife. Despite the tedious nature of the testimony, “television ratings were good.”149 The public’s apparent interest in trials led a number of media companies to begin Court TV as a joint venture in 1991.150 A news television network primarily reporting on legal and judicial proceedings in the United States, Court TV specialized in gavel-to-gavel coverage of civil and criminal trials. During the next six years, it televised over 400 trials,151 along with oral arguments in various trial courts and appellate proceedings. It also televised over 51 federal court cases.152 Court TV may best be known for its extensive network coverage of several high-profile trials, including the 1991 rape trial of William Kennedy Smith, the 1993 murder trial of Lyle and Erik Menendez, and the 1995 murder trial of O.J. Simpson. While saturation coverage of the O.J. Simpson trial by Court TV and CNN represented the apex of television coverage of court proceedings, it also engendered a backlash against such coverage. Just as the aftermath of the Lindbergh coverage resulted in a ban on cameras in the courtroom, the vast majority of articles written about the subject pointed to the fact that while television coverage of the O.J. Simpson trial may not have been the cause for the circus-like atmosphere surrounding the case, the perception by the bench, bar, and public was to draw that inference.153 148. Estes v. Texas, supra, 381 U.S. at 595-96 (Harlan, J., concurring). 149. Kronenwetter, supra note 11, at 73. 150. In the interest of full disclosure, it should be noted that the editor of this journal was a paid summer intern at American Lawyer Media, one of the partners in Court TV, at the time of its testing and launch. 151. Katzman v. Victoria’s Secret Catalogue, 923 F. Supp. 580, 582 (S.D.N.Y. 1996) (granting Court TV permission to televise an argument in the Southern District of New York on a motion to dismiss). 152. Id. Twenty-eight of these trials were covered under the auspices of the first federal cameras experiment. See Fed. Jud. Ctr., supra note 60, at 37. 153. See, e.g., Jill Smolowe, et. al, Cameras on Trial, Time magazine, July 24, 1995, http://www.time.com/ time/magazine/article/0,9171,983209,00.html: [T]he mounting backlash against televised trials owes little to concerns about the First Amendment's guarantees of a free press vs. the Sixth Amendment's promise of a fair trial, an issue that has yet to be resolved by the Supreme Court. Instead, the legal community is assessing the fallout from the Simpson case--the media stalking of witnesses, the glut of pop

238

Volume 1, Issue 3


Cameras in the Courts

The First Federal Cameras Test and Its Aftermath

I

n September 1990, following the advice of its Ad Hoc Committee on Cameras in the Courtroom, the Judicial Conference of the United States154 commenced a three-year (July 1, 1991 to June 30, 1993) pilot program permitting the broadcasting, televising, electronic recording, or photographing by the media of courtroom proceedings in civil cases in six district and two appellate courts.155 At the conclusion of the experiment, in 1994, the Court Administration and Case Management Committee presented a report and recommendation to the Judicial Conference, which included an evaluation of the pilot program by the Federal Judicial Center (FJC).156 The report also included an analysis of studies conducted in state courts regarding cameras in the courtroom.157 After reviewing the FJC Report, the “Committee was confident that the experimental media coverage did not create sufficient disruption of civil proceedings to warrant the continuation of the prohibition against such coverage.”158 In spite of that assessment, the Committee was apparently still not convinced on the question of allowing cameras on a permanent basis, and requested that the FJC prepare a supplemental report for its review.159 In the ensuing report, once again the FJC stated that “most jurors and witnesses believe electronic media presence has no or minimal detrimental effects on witnesses and jurors, while a minority believe there are detrimental effects on them.”160 Based upon these evaluations, the Committee recommended that the Judicial Conference allow the use of cameras in the courtroom in civil proceedings in accordance with the Conference’s policy and standards.161 However, the Judicial Conference disregarded those favorable assessments, data and recommendations, with “a majority of the Conference conclud[ing] that the intimidating effect of cameras on some witnesses and jurors was cause for concern.”162 Based on this reasoning, the Conference declined to approve the Committee’s recommendation to continue camera coverage of civil proceedings.163 Thus the initial pilot program ended on December 31, 1994.164 Even without a pilot program, a few judges in the Southern and Eastern Districts of New York permitted camera coverage in several cases in 1996.165 In allowing camera coverbooks, the glamourization [sic] of commentators--and concluding that a camera lens does far more than just behold. 154. The Judicial Conference of the United States is the rulemaking body for the entire federal court system, with the exception of the United States Supreme Court. See 28 U.S.C. § 331. 155. Fed’l Jud. Ctr., supra note 60. 156. See U.S. Jud. Conf., Report of the Proceedings of the Judicial Conference of the United States 46-47 (1994), available at http://www.uscourts.gov/judconf/94-Sep.pdf. See also Fed. Jud. Ctr., supra note 60. 157. Id. at 47. 158. U.S. Jud. Conf., Comm. on Ct. Admin. & Case Mgmt., Report of the Judicial Conference Committee on Court Administration and Case Management (Sept. 1994), 3. 159. ABA Stg. Comm. on Fed. Jud. Improvements, Recommendation and Report (1991), at 2, available at http://info.courtroomview.com/Default.aspx?app=LeadgenDownload&shortpath=docs%2FABA-Recommendation-1991-Federal-Camera-Pilot-Program.pdf. 160. U.S. Jud. Conf., Comm. on Ct. Admin. & Case Mgmt., supra, at 4. 161. ABA Stg. Comm. on Fed. Jud. Improvements, supra, at 2. 162. U.S. Jud. Conf., Rpt. of the Proceedings of the Jud. Conf. of the U.S., 47 (Sept. 1994), available at http://www.uscourts.gov/judconf/94-Sep.pdf. 163. Id. 164. Id. 165. These cases were Katzman v. Victoria’s Secret Catalogue, supra, 923 F. Supp. 580 (S.D.N.Y. 1996); Reynolds Courts & Media Law Journal

239


Cameras in the Courts age of one of these cases, New York District Court Judge Robert W. Sweet invoked a local rule on television coverage, which he read as giving trial judges discretion to allow such coverage,166 adding that there was a “presumptive First Amendment right of the press to televise as well as publish court proceedings, and of the public to view those proceedings on television.”167 In another of these cases, Judge Robert J. Ward was unwilling to bar television coverage of a high-profile class action lawsuit seeking reform of New York City’s child welfare system, saying that “this Court is unwilling to deny access to information because of the perceived inability of the public to grasp such information.”168 In response to the Marisol decision, in 1996 the U.S. Judicial Conference took a small step towards allowing camera coverage in federal courts, giving appellate courts discretion to permit broadcasting of their oral arguments.169 The Conference also recommended that each circuit’s judicial conference “[s]trongly urge each circuit judicial council to adopt an order ... reflecting the September 1994 decision of the Judicial Conference not to permit the taking of photographs and radio and television coverage of court proceedings in the United States district courts” and to “abrogate any local rules of court that conflict with this decision ... .”170 The Judicial Council’s admonition regarding the district courts did not dissuade another judge of the Southern District of New York from allowing camera coverage of a sexual discrimination and wrongful termination case. District Judge Peter K. Leisure found that, “although the position of the Judicial Conference is persuasive, it is not controlling, and … the Court, pursuant to [Local] Rule 7, has full discretion regarding this issue.”171 Senior District Judge Jack B. Weinstein issued an Amended Memorandum and Order using the same Rule 7 analysis, finding that “[a]ctually seeing and hearing court proceedings, combined with commentary of informed members of the press and academia, provides a powerful device for monitoring the courts.”172

New Developments in Courtroom Coverage Evolving Technology

The success of Court TV was in no small part based on evolving technology. Television cameras became smaller and were able to record high quality images using only ambient courtroom light. The cameras themselves emitted no sound, and in some situations were mounted high on the courtroom wall and operated by remote control. With court perMarisol A. v. Giuliani, 929 F. Supp. 660 (S.D.N.Y. 1996); Sigmon v. Parker Chapin Flanau & Kimpl, 937 F. Supp. 335 (S.D.N.Y. 1996); and Hamilton v. Accu-Tek, 942 F. Supp. 136 (E.D.N.Y. 1996). 166. Katzman, 923 F. Supp. at 583. The rule provided that “No one other than court officials engaged in the conduct of court business shall bring any camera, transmitter, receiver, portable telephone or recording device into any courthouse or its environs without written permission of a judge of that court.” Id. (quoting S.D.N.Y. Gen. R. 7). Judge Sweet read this language to allow camera coverage, writing that, “Although Rule 7 does not state in the affirmative that court proceedings may be televised, it plainly permits cameras in the courtroom with a judge's written permission.” Id. at 584. 167. Id. at 589. Judge Sweet also noted that “[t]he equipment [used] is no more distracting in appearance than reporters with notebooks or artists with sketch pads.” Id. at 582. 168. Marisol A. v. Giuliani, 929 F. Supp. 660, 661 (S.D.N.Y. 1996). 169. U.S. Jud. Conf., Rpt. of the Proceedings of the Jud. Conf. of the U.S., 17 (Mar. 1996), available at http://www.uscourts.gov/FederalCourts/JudicialConference/Proceedings/Proceedings.aspx?doc=/uscourts/FederalCourts/judconf/proceedings/1996-03.pdf. Currently the Second and the Ninth Circuits allow such coverage. 170. Id. 171. Sigmon v. Parker Chapin Flanau & Kimpl, 937 F. Supp. 335, 336 (S.D.N.Y. 1996). 172. Hamilton v. Accu-Tek, 942 F. Supp. 136, 138 (E.D.N.Y. 1996).

240

Volume 1, Issue 3


Cameras in the Courts mission, camera(s) and microphones were all set up in unobtrusive positions prior to the start of any proceeding.173 “The equipment [was] no more distracting in appearance than reporters with notebooks or artists with sketch pads.”174 In 2004, Court TV morphed into Court TV News, broadcasting trial coverage on successor network TruTV during the day. In 2006, the daytime programming was rebranded as “In Session,” administered by the HLN network, a corporate sibling.175 The mantle of full-time coverage of court proceedings was taken up in 2006 by Courtroom View Network (CVN), which offers courtroom trial coverage – gavel-to-gavel, without anchors or commentators – and legal news online.176 According to Michael Breyer, CVN’s president and co-founder, “CVN covers a broad range of trials, including some of the most important business litigation in the United States.”177  It provides webcasts and recordings of civil trials, hearings, and oral arguments in state and federal courts.178 “Our coverage is ‘gavel-to-gavel’ – there are no news readers or commentators,” said Breyer in an interview.179 

Congressional Pressure Since 1996, a number of bills have been introduced in Congress which would require federal courts – the Supreme Court, the circuit and district courts, or all federal courts, depending on the bill – to allow television broadcasting of their proceedings. In 2000, during the 106th Congress, the Judicial Conference voiced its opposition to S. 721, a bill that would have permitted electronic media coverage of federal court proceedings. In twenty-two pages of testimony before the Senate Judiciary Subcommittee on Administrative Oversight and the Courts, Chief Judge Edward R. Becker of the Third Circuit Court of Appeals “strongly oppos[ed]”180 the legislation and the concept. Despite the previous findings of the Court Administration and Case Management Committee and the Federal Judicial Center, Judge Becker reiterated the Judicial Conference’s belief “that the intimidating effect of cameras on litigants, witnesses, and jurors has a profoundly negative impact on the trial process.”181 In 2001, Senators Schumer, Grassley, Leahy, and Specter (among others) introduced the first of five “Sunshine in the Courtroom Acts,”182 which was immediately opposed by the Judicial Conference.183 This cha-cha of one step forward, two steps back continued to be 173. Depending upon the sophistication of the equipment in a particular courtroom, Court TV often utilized existing courtroom microphones to provide audio to its viewers. Katzman, 923 F. Supp. at 582. 174. Id. 175. See Brian Stelter, Casey Anthony Coverage Gives HLN an Identity, N.Y. Times, June 12, 2011, http:// www.nytimes.com/2011/06/13/business/media/13hln.html. 176. See Courtroom View Network, About Us, http://www.courtroomview.com/cvn. 177. Email from Michael Breyer, president and co-founder, Courtroom View Network (May 17, 2011). 178. Courtroom View Network, About Us, supra. 179. Email from Michael Breyer, supra note 177. 180. Statement of Chief Judge Edward R. Becker on Behalf of the Judicial Conference of the United States, at 1, Sen. Jud. Comm., Subcomm. on Admin. Oversight & the Cts., Allowing Cameras And Electronic Media In The Courtroom, 106th Cong. 7, 10 (Sept. 6, 2000), available at http://ftp.resource.org/gpo. gov/hearings/106s/73484.pdf. 181. Id. at 11. 182. Office of Sen. Chuck Grassley, Senate Committee Clears Grassley Bill to Bring More Transparency to Federal Courtrooms (press release), April 7, 2011, http://grassley.senate.gov/news/Article.cfm?customel_ dataPageID_1502=33662 183. See U.S. Jud. Conf, The Final Days of the 107th Congress. Work Agenda Includes Budget and COLAs, The Third Branch (newsletter), Aug. 2002, http://www.uscourts.gov/News/TheThirdBranch/02-08-01/ The_Final_Days_of_the_107th_Congress_Work_Agenda_Includes_Budget_and_COLAs.aspx. Reynolds Courts & Media Law Journal

241


Cameras in the Courts played out on the Capitol dance floor for the next nine years.184 The latest of these is the Sunshine in the Courtroom Act of 2011, which would authorize the presiding judge of a federal appellate or district court to, “at the discretion of that judge, permit the photographing, electronic recording, broadcasting, or televising to the public of any court proceeding over which that judge presides.”185 It would also “[a] uthorize[] the Judicial Conference of the United States to promulgate advisory guidelines to which a presiding judge may refer in making decisions regarding the management and administration of photographing, recording, broadcasting, or televising described in this Act.”186 As with similar bills introduced in prior Congresses, the current version was moved out of the Senate Judiciary Committee and placed on the Senate Legislative Calendar in April.187

The Ninth Circuit and the Gay Marriage Case In June 2009, attorneys for the Courtroom View Network prepared a memorandum for the U.S. Judicial Conference’s Committee on Court Administration and Case Management “to assist it in considering a pro­posal by the Ninth Circuit Judicial Council, to permit audiovisual cov­erage of non-jury civil adversarial proceedings in the federal district courts in the Ninth Circuit.”188 Four months later, in October, Ninth Circuit Chief Judge Kozinski appointed a threejudge committee, including then-Northern District of California Chief Judge Vaughn R. Walker, to evaluate the possibility of the circuit adopt­ing a rule regarding the recording and transmission of district court proceedings.189 The committee recom­mended that district courts within the circuit be permitted to experiment with broadcasting court proceedings on a trial basis, although the committee did not publicly disclose its consideration of the proposal, nor did it solicit or receive public comments on the proposal.190 The circuit court tried to remedy this by announcing the proposed revision on Dec. 31, 2009, with public comment to be submitted by Jan. 8, 2010.191 184. Bills proposed since 2000 regarding federal courtroom broadcasting have included H.R.1752, § 210, 106th Cong. (1999-2000) (passed House); S.986, 107th Cong. (2001-02) (placed on Senate calendar); S.554, 108th Cong. (2003-04) (placed in Senate calendar); H.R. 1751, § 22, 109th Cong. (2005-06) (passed House); H.R. 4380, 109th Cong. (2005-06); S. 829, 109th Cong. (2005-06) (placed on Senate calendar); S. 1768, 109th Cong. (2005-06) (placed on Senate calendar); H.R. 1299, 110th Cong. (200708); H.R. 2128, 110th Cong. (2007-08); S. 344, 110th Cong. (2007-08); S. 352, 110th Cong. (2007-08) (placed on Senate calendar), H.R. 429, 111th Cong. (2009-10); H.R. 486, 111th Cong. (2009-10); H.R. 3054, 111th Cong. (2009-10); S. 220, 111th Cong. (2009-10); S. 446, 111th Cong. (2009-10) (placed on Senate calendar); S. 657, 111th Cong. (2009-10) (placed on Senate calendar); S. Res. 339, 111th Cong. (2009-10) (placed on Senate calendar); and S. 410, 112th Cong. (2011-12) (placed on Senate calendar, April 7, 2011). 185. S. 410, §§ 2(a)(1)(A), 2(b)(1)(A), 112th Cong. (2011-12). 186. Id. 187. See Senate Calendar of Business, 112th Cong. (April 8, 2011), at 15 (listing S. 410, Sunshine in the Courtroom Act of 2011, on the Senate Calendar under General Order 27), http://www.gpo.gov/fdsys/pkg/ CCAL-112scal-2011-04-08/pdf/CCAL-112scal-2011-04-08-pt6.pdf. 188. Memorandum on Behalf of Courtroom View Network, submitted to Comm. on Ct. Admin. & Case Mgmt., U.S. Jud. Conf. (2009), at 1, available at http://www.courtroomview.com/news/CVN%2520W hite%2520Paper%2520(6%25206%252009)%2520(with%2520exhibits).pdf. 189. Hollingsworth v. Perry, 588 U.S. __, 130 S.Ct. 705, 708, 175 L.Ed.2d 657, ___ (Jan. 13, 2010) (hereinafter Hollingsworth I). 190. Id. 191. Id.

242

Volume 1, Issue 3


Cameras in the Courts The initial Ninth Circuit proposal was made just seven days before the United States District Court for the Northern District of California issued an order permitting the broadcast of the trial in a lawsuit challenging California’s Proposition 8,192 which amended that state’s constitution by defining a valid marriage as only between a man and woman. The court had issued the order pursuant to the amendment of its own Civil Local Rule 77-3, which previously prohibited such coverage;193 the revision created an exception to allow “for participation in a pilot or other project au­thorized by the Judicial Council of the Ninth Circuit.”194 On Jan. 11, 2010—the first day of trial in the Proposition 8 challenge—the Supreme Court granted an emergency stay of this order pending further appeal, with Justices Breyer and Ginsberg dissenting.195 Two days later, the Court permanently granted the stay in a five-four decision that synthesized the arguments for and against cameras in federal courts.196 Purportedly determined on procedural grounds, the per curiam decision in Hollingsworth II granting the permanent injunction found that the revision of Civil Local Rule 77-3 was accomplished without suffi­cient public notice and opportunity for comment, as required by federal law.197 Acknowledging that “[t]he question whether courtroom proceedings should be broadcast has prompted considerable national debate;”198 the Court demurely stated at the outset “[w]e resolve that question without expressing any view on whether such trials should be broadcast.”199 It nevertheless then went on the express its view of such matters in dicta, along with extensive citation to cases prohibiting such coverage, advising that “[i]f Local Rule 77–3 had been validly revised, questions would still remain about the District Court’s decision to allow broadcasting of this particular trial ... .”200 In their dissent, Justice Breyer, along with Justices Stevens, Ginsburg and Sotomayor, questioned the majority’s tortured attempt to justify its forgone conclusion. Noting that “[t]he Court today issues an order that will prevent the transmission of proceedings in a nonjury civil case of great public interest,”201 Breyer’s dissent stated that none of the requirements for a grant of “extraordinary legal relief ” had been met.202 Breyer picks apart the majority, finding that there was, indeed, sufficient and appropriate opportunity for public comment, noting that “[b]y January 8, 2010, the court had received 138,574 comments, all but 32 of which favored transmitting the proceedings.”203 Justice Breyer also takes the Court’s majority to task for side-stepping its own certiorari standards in order to weigh in on a question that was not appropriate for consideration be 192. Id. 193. Id. at 710-11 (quoting Civ. Local R. 77-3 (N.D. Cal.) (2010), as it read prior to the amendment). 194. Civ. Local R. 77-3 (N.D. Cal.) (2011), available at http://www.cand.uscourts.gov/filelibrary/3/Civ6-11.pdf. 195. Hollingsworth I, 588 U.S. ___, 130 S. Ct. 1132, 175 L. Ed. 2d 878 (Jan, 11, 2010) (granting emergency stay). 196. Hollingsworth v. Perry, 588 U.S. ___, 130 S. Ct. 705, 175 L. Ed. 2d 657 (Jan, 13, 2010) (hereinafter Hollingsworth II). 197. Hollingsworth II, 130 S. Ct. at 712. See also 28 U.S.C. § 2071(b) (requiring court rules be adopted “only after giving appropriate public notice and an opportunity for comment”). 198. Id. at 710. 199. Id. at 706. 200. Id. at 714. 201. Id. at 715 (Breyer, J., dissenting). 202. Id. at 715 (“This case, in my view, does not satisfy a single one of these standards, let alone all of them. Consequently, I must dissent.”). 203. Id. at 717 (citation omitted). Reynolds Courts & Media Law Journal

243


Cameras in the Courts cause “[t]here [was] no conflict among the state or federal courts regarding the procedures by which a district court changes its local rules.”204 He also found that those procedures did “not implicate an open ‘important question of federal law;’”205 nor did “the procedures [used to adopt the revised rule] clearly conflict with any precedent from this Court.”206 Warning of “consequences we cannot pre­dict” as a result of its unprecedented actions,207 Breyer reminded the majority that “[t]he District Councils, the Circuit Councils, the Judicial Conference of the United States, and the Chief Justice bear responsibility for judicial administration, not this Court.”208 He also chastised the majority for its unnecessary intervention and their pre­emptive micromanagement of district court proceed­ings.209 Turning to address “the larger question of the place of cameras in the courtroom,”210 Justice Breyer focused on what he believed to be the only relevant legal principles that allowed the Court to address the local “cameras” rule: specifically, the question of “irreparable harm” and the balance of equities, including the possible harm to the public interest.211 Citing Chandler v. Florida in asserting that “[n]either the applicants nor anyone else ‘has been able to present empirical data sufficient to establish that the mere presence of the broadcast media inherently has an adverse effect on [the judicial] process,’”212 Justice Breyer does well in undermining the speculative beliefs found in Estes v. Texas, cited by the majority, that “witness testimony may be chilled if broadcast.”213 Breyer points out that Justice Breyer pointed out that the not only does most empirical data gathered potential harm to witnesses was not since 1965 – when television was still in its infancy– support the position that the mere “irreparable” in that it was “either presence of cameras does not negatively impact on the parties, witnesses, or prononexistent” or “can be cured.” ceedings, but that had such coverage been permitted under the revised rule, it would have still been limited pursuant to the discretion of the trial court judge.214 The dissent also points out that “[t]he likelihood of any ‘irreparable’ harm is further diminished by the fact that the court order . . . would simply increase the trial’s viewing audience from the occupants of one courtroom in one courthouse to the occupants of five other courtrooms in five other court­houses”215 and that “[a]ll of the witnesses supporting the applicants are already publicly identified with their cause.”216 Finally, as to the fair balance of the equities, including any harm to the public interest, Justice Breyer pointed out that the potential harm to witnesses was not “irreparable” in that it was “either nonexistent” or “can be cured.”217 When weighed against the competing 204. Id. 205. Id. 206. Id. 207. Id. 208. Id. 209. Id. 210. Id. at 718. 211. Id. 212. Id. (quoting Chandler v. Florida, 449 U.S. 560, 578-79 (1981). 213. Id. at 713 (citing Estes v. Texas, 381 U.S. 532, 591 (1965) (Harlan, J., concurring)). 214. Id. at 719. 215. Id. at 718-19. 216. Id. at 718. 217. Id. at 719.

244

Volume 1, Issue 3


Cameras in the Courts equities of the “respondents’ interest in obtaining the courthouse­-to-courthouse transmission that they desire”218 and the “public’s interest in observing trial proceedings to learn about this case and about how courts work”219 “the scales tip heavily against, not in favor, of issuing the stay.”220

The Secret Tapes Northern District of California Chief Judge Vaughn R. Walker, who was presiding over the trial in Perry v. Schwarzenegger, was defiant in the face of the Supreme Court’s action in the case. While it was not broadcast as planned, the trial in Perry v. Schwarzenegger was recorded by video cameras despite the Supreme Court order, and over the objections of Proposition 8 supporters.221 The recording was done pursuant to the unamended Civil Local Rule 77-3, with Walker stating on the record that the recording was “‘simply for [his] use in chambers’ because it ‘would be helpful to [him] in preparing the findings of fact.’”222 The bench trial, which commenced on January 11, 2010, was adjourned on January 27, 2010, with closing arguments scheduled for June 16, 2010. It should also be noted that, sua sponte, Walker provided copies of the recordings to the parties for use during closing arguments, with the requirement that all copies of the trial video be “maintain[ed] as strictly confidential.”223 A media coalition also made a request to record, broadcast, and webcast the closing argument, which was denied.224 After closing arguments on June 29, 2010, a request was made by Proposition 8 supporters that all copies of the recording be returned to the court.225 In his August 4, 2010 ruling striking down Proposition 8 as unconstitutional,226 Chief Judge Walker also denied the supporters’ request and instead “directed the district court clerk to file the trial recording under seal as part of the record,”227 while permitting the parties to “retain their copies of the trial recording pursuant to the terms of the protective order.”228 On August 16, 2010, the Ninth Circuit Court of Appeals ordered the judgment as to the constitutionality of Propositon 8 stayed pending appeal,229 and on December 6, 2010 a three-judge panel heard oral arguments,230 which were broadcast live on C-SPAN pursuant to the Circuit Court’s rule permitting such broadcasts.231 218. Id. 219. Id. 220. Id. 221. Scott Shafer, Judge Vaughn Walker's Use of Trial Video Under Fire From Prop 8 Supporters, KQED (News Fix blog), Apr. 14, 2011, http://blogs.kqed.org/newsfix/2011/04/14/judge-vaughn-walkersuse-of-trial-video-under-fire-from-prop-8-supporters/. 222. Appellants’ Motion for Order Compelling Return of Trial Recordings, Perry v. Brown, No. 10-16696 (9th Cir. filed Apr. 13, 2011), at 2 (quoting trial transcript) (bracketed words in original), available at http://www.ca9.uscourts.gov/datastore/general/2011/04/14/motion10-16696.pdf. 223. Id. at 10. 224. Id. at 9-10. 225. Id. at 10. 226. See Perry v. Schwarzenegger, 704 F.Supp.2d 921 (N.D. Cal. 2010). 227. Appellants’ Motion for Order Compelling Return of Trial Recordings, supra note 222, at 11. 228. Id. 229. Perry v. Schwarzenegger, 2010 WL 3212786 (9th Cir. Aug 16, 2010). 230. Perry v. Schwarzenegger, No. 10-16696 (9th Cir. argued Dec, 6, 2010). 231. The court’s rule allowing video coverage of oral arguments of appeals before the 9th Circuit is U.S. Ct. of Appeals for the 9th Cir., Guidelines For Photographing, Recording, and Broadcasting in the Courtroom (eff. 1996), available at http://www.ca9.uscourts.gov/datastore/uploads/news_media/camreq.pdf. VidReynolds Courts & Media Law Journal

245


Cameras in the Courts In January 2011, the Ninth Circuit certified a question to the California Supreme Court, and stayed the appeal pending its response.232 In February 2011 the California Supreme Court agreed to address the matter, and oral arguments may take place this fall.233 It is expected that the argument will be televised under California law.234 Judge Walker stepped down as Chief Judge on December 31, 2011, and retired from the bench two months later.235 Ten days before retiring Judge Walker gave a 42-minute lecture on the history of cameras in the courtroom at the University of Arizona, which also was taped and broadcast on C-SPAN a few days later.236 During his talk he played a portion (approximately three minutes) of the “sealed” recording, showing the cross-examination of an expert witness during the trial.237 Just to make matters even more interesting, Judge Walker, in an interview with a reporter from Reuters on April 6, 2011, admitted that he was gay and had been in a “10-year relationship with a physician.”238 On April 13, 2011, supporters of Proposition 8 filed a Motion in the Ninth Circuit for an order compelling return of the trial recordings.239 The following day, Judge Walker sent a letter to the Ninth Circuit Clerk responding to that filing.240 In his letter, Walker wrote that after he had used a re-enactment of the cross-examination in question during his “first several cameras in the courtroom lectures,”241 he decided to use some of the actual trial video after receiving it from the court clerk as part of his judicial papers, thinking “it would be permissible and appropriate.”242 He also admitted using the actual cross-examination excerpt during a talk to the Federal Bar Association in Riverside, California on March 8, 2011, and in a class he was teaching at the University of California Berkeley School of Law.243 On April 15, 2011, opponents of Prop. 8 filed their opposition to the supporters’ motion, along with a motion to unseal the entire recordings, arguing, inter alia, that the record of the trial, including the recording, is public property and as such should be unsealed and

eo of the Proposition 8 argument is available at http://www.c-spanvideo.org/program/Perryv. 232. 628 F.3d 1191 (9th Cir. Jan. 4, 2011). 233. See Perry v. Brown, No. S189476 (Cal. Feb. 16, 2011) (accepting certified question). That proceeding is still pending. 234. See Cal. Sup. Ct. Rule 1.150 (allowing cameras). 235. Max Simon, Judge Vaughn Walker Is Leaving 9th Circuit, Following Exits By Prominent Gay Marriage Justices, Qweerty.com, Sept. 29, 2010, http://www.queerty.com/judge-vaughn-walker-is-leaving-9thcircuit-following-exits-by-prominent-gay-marriage-justices-20100929/. 236. The video of this speech is available at http://www.c-spanvideo.org/program/Vaugh. 237. Walker’s presentation of this excerpt begins at timestamp 33:48 in the C-SPAN video, supra. 238. See Dan Levine, Gay judge never thought to drop marriage case, Reuters, April 6, 2011, http://www. reuters.com/article/2011/04/06/us-gaymarriage-judge-idUSTRE7356TA20110406. This disclosure led the Proposition 8 proponents to move to vacate his ruling that Proposition 8 is unconstitutional, on the grounds that Judge Walker should have recused himself. See note 248, infra. 239. See Appellants’ Motion for Order Compelling Return of Trial Recordings, Perry v. Brown, No. 10-16696 (9th Cir. filed Apr. 13, 2011), available at http://www.ca9.uscourts.gov/datastore/general/2011/04/14/ motion10-16696.pdf. 240. See Letter from Vaughn R. Walker to Molly Dwyer, Clerk, 9th Cir. (Response to a Motion filed on April 13, 2011 by Appellants-Defendant-Intervenors), Perry v. Brown, id. (filed April 14, 2011), available at http:// www.ca9.uscourts.gov/datastore/general/2011/04/14/10-16696_vaughn_walker_resp_motion.pdf. 241. Id. at 1. 242. Id. 243. Id. at 1-2.

246

Volume 1, Issue 3


Cameras in the Courts open to public review.244 The City and County of San Francisco, along with a non-party coalition of media entities, also filed motions in this matter.245 Walker then replaced the clip from the Proposition 8 trial with footage from the Nuremberg Trials during his April 21, 2011 presentation at Gonzaga University Law School.246 Finally, on April 27, 2011, the Ninth Circuit transferred the matter back to the district court,247 to be heard along with Prop. 8 supporters’ April 25, 2011 motion to vacate Judge Walker’s “and all orders entered by this Court in this case on the grounds that the then presiding judge was disqualified from sitting in this action” because he is gay.248 The next day the district court’s chief judge, James Ware, issued an order setting a June 13, 2011 hearing date for those motions, and also ordering “[a]ll participants in the trial, including the presiding judge (now retired), who are in possession of a recording of the trial proceedings, … to appear at the hearing …, to show cause as to why the recordings should not be returned to the Court’s possession.”249 In response to this order, Judge Walker (by and through his attorney) sent a cover letter, dated May 12, 2011, to the court along with “his chambers copy of the video recordings made of the trial,” subject to the return of the video as part of his private property.250 On June 14, 2011, Chief Judge Ware issued an order denying defendants’ motion for an order compelling the return of the trial recordings.251 Since Judge Walker had voluntarily lodged his copy of the recordings with the court, Judge Ware held that the issue as it pertained to him was moot.252 Judge Ware also set August 29, 2011 for a hearing on the motion to lift the protective order on the video recording of the trial.253 He also gave notice that he intended “to return the trial recordings to Judge Walker as part of his judicial papers.”254 In a separate order on the same day, Chief Judge Ware also denied the Proposition 8 opponents’ motion to vacate Judge Walker’s original judgment, finding that there were no grounds for disqualification or recusal of Judge Walker.255 244. Plaintiffs-Appellees’ Opposition to Appellants’ Motion Regarding Trial Recordings and Plaintiffs-Appellees’ Motion to Unseal, Perry v. Brown, id. (filed Apr. 15, 2010), at 1, available at http://www.ca9. uscourts.gov/datastore/general/2011/04/15/10-16696_appellees_opp.pdf. 245. See Appellee City and County of San Francisco's Opposition to Motion Regarding Trial Recordings, Perry v. Brown, id. (filed Apr. 15, 2011), available at http://www.ca9.uscourts.gov/datastore/general/2011/04/18/10-16696_SF_opp_to_motion.pdf. 246. Scott Shafer, Walker Replaces Prop. 8 Video with Nazi Trial, KQED (The California Report: Proposition 8 blog), Apr. 19, 2011, http://blogs.kqed.org/prop8/2011/04/19/walker-replaces-prop-8-videowith-nazi-trial/. 247. Perry v. Brown, No. 10-16696 (9th Cir. order Apr. 27, 2011), available at http://www.ca9.uscourts.gov/ datastore/general/2011/04/27/10-16696_order_transfer.pdf. 248. See Defendant-Intervenors Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Mark A. Jansson, & Protectmarriage.com’s Motion to Vacate Judgment, Perry v. Brown, Civil No. 09-2292 (N.D. Cal. motion filed Apr. 25, 2011), available at https://ecf.cand.uscourts.gov/cand/09cv2292/files/768-main.pdf. 249. Order Setting Hearing on Motion, Perry v. Brown, id, (N.D. Cal. order Apr. 28, 2011), available at https://ecf.cand.uscourts.gov/cand/09cv2292/files/772-main.pdf. 250. Letter from attorneys for Vaughn Walker to Chief Judge James Ware, Perry v. Schwarzenegger [Brown], id. (May 12, 2011), available at http://docs.justia.com/cases/federal/district-courts/california/candce/3 :2009cv02292/215270/777/. 251. Order Denying Motion for Order Compelling Return of Trial Recordings, Perry v. Brown, id. (N.D. Cal. order June 14, 2011), available at https://ecf.cand.uscourts.gov/cand/09cv2292/files/798.pdf. 252. Id. at 3, n.6. 253. Id. at 5. 254. Id. 255. Perry v. Schwarzenegger, --- F. Supp. 2d ----, 2011 WL 2321440 (N.D. Cal. June 14, 2011). Reynolds Courts & Media Law Journal

247


Cameras in the Courts

Motion to Webcast Tenenbaum Copyright Case and Aftermath In 2009, Massachusetts District Judge Nancy Gertner, granted a motion permitting broadcast on the Internet of a motion hearing in a music copyright infringement case.256 The record companies appealed to the First Circuit Court of Appeals, which granted a petition prohibiting enforcement of the district court’s order, which the appeals court held “was based upon on a palpably incorrect interpretation” of the district court’s local rule prohibiting photographing, recording and broadcasting of court proceedings, “when read in conjunction with an announced [persuasive] policy of the Judicial Conference of the United States and a resolution of the First Circuit Judicial Council.”257 In his concurrence to this decision, First Circuit Judge Kermit V. Lipez proposed prompt re-examination of the “sweeping prohibition on the broadcasting or recording of district court proceedings,”258 in light of the dramatic advances in technological capabilities that are now providing “an unprecedented opportunity to increase public access to the judicial system in appropriate circumstances”259 and which have “created expectations that judges will respond sensibly to these opportunities.”260 In apparent response to this invitation, on February 17, 2010 the U.S. District Court for Massachusetts issued a public notice requesting comments regarding a modification of Local Rule 83.3.261 The proposed changes to the rule would specifically “authorize individual judges of the court to permit—subject to certain specified limitations—the transmission of court proceedings on a case by case basis, under the supervision of the responsible judicial officer, both by broadcast and by internet.”262 According to District Court Operations Manager Helen M. Costello the rule change was held in abeyance pending the court’s acceptance into the new federal courtroom camera pilot program.263 As the District is one of the courts selected for the 256. Capitol Records, Inc. v. Alaujan, 593 F. Supp. 2d 319 (D. Mass. 2009) (allowing webcast). This was one of a series of high profile cases involving alleged copyright infringement brought by some of the nation’s largest record companies against individual computer users (mainly college students) who used “peerto-peer” file sharing software to download and disseminate music without paying for it. Id. at 321. 257. In re Sony BMG Music Entertainment, 564 F.3d 1, 10, 2 (1st Cir. Mass. 2009), cert. denied, Tenenbaum v. Sony BMG Music Entertainment, 130 S. Ct. 126, 175 L. Ed. 2d 234 (U.S. 2009). The rule at issue, adopted in 1990, provides that, “Except as specifically provided in these rules or by order of the court, no person shall take any photograph, make any recording, or make any broadcast by radio, television, or other means, in the course of or in connection with any proceedings in this court, on any floor of any building on which proceedings of this court are or, in the regular course of the business of the court, may be held.” Local R. 83.3 (Mass. Dist. Ct.). 258. Id. at 11, 12 (Lipez, J., concurring). 259. Id. at 11. 260. Id. at 12. 261. See Public Notice Regarding the Local Rules of the United States District Court for the District of Massachusetts, Feb. 10, 2010, available at http://www.mad.uscourts.gov/general/pdf/a2010/Public%20 Notice%20LR83.3-2-17-2010.pdf. It is also interesting to note that the District Court issued two press releases announcing its participation in the reception of live audio/video feeds of oral arguments from the 9th Circuit. See U.S. Dist. Ct., D. Mass., Press Release, Oct. 25, 2010, available at http://www. mad.uscourts.gov/general/pdf/a2010/102510%20Press%20Release,%20Remote%20Broadcast,%20 US%20v%20AZ.pdf (announcing feed of arguments in United States v. Arizona [Case No. 10-16645 (9th Cir. argued Nov. 1, 2010)], regarding the constitutionality of an Arizona immigration law; and U.S. Dist. Ct., D. Mass., Press Release, Dec. 3, 2010, available at http://www.mad.uscourts.gov/general/ pdf/a2010/120310_Press_Release_Remote_Broadcast_Prop_8.pdf (announcing feed of arguments in Perry v. Schwarzenegger [Case No. 10–16696 (9th Cir. argued Dec. 6, 2010)], regarding the constitutionality of California’s proposition 8, outlawing gay marriage in that state. 262. Id. at 1. 263. See infra p. 250.

248

Volume 1, Issue 3


Cameras in the Courts program,264 it will have to amend its local rules to comport with program guidelines.265

Revision of Massachusetts State Rule While the federal court in Massachusetts was struggling with its rules on camera coverage, the state’s own courts rejected a motion to video record and webcast a tobacco trial. Although the Massachusetts Superior Court had denied Courtroom View’s request on the grounds that the service was “not a ‘news media’ or a ‘newsgathering’ organization within the meaning of [the state’s rule regarding broadcast of court proceedings],”266 the Supreme Judicial Court vacated and allowed the webcast.267 On the same day that it allowed the webcast, the Supreme Judicial Court requested comments regarding proposed amendments to S.J.C. Rule 1:19.268 The proposed revisions would permit journalists, including bloggers, to possess and operate electronic devices in the courtroom, to record and transmit proceedings.269 As of late May, the Court had received 11 responses to the request for comment.270

OpenCourt.us Finally, in an experimental project that may be a portent of things to come, WBUR, Boston’s NPR news station, is using digital technology to make one Massachusetts courtroom more accessible to the public.271 Launched on May 2, 2010 in Quincy District Court, OpenCourt.us is a pilot project supported by a grant from the Knight Foundation. The pilot project’s stated mission is to “experiment with how digital technologies can foster the openness of the American courts with the idea that more transparent courts make for a stronger democracy.”272 OpenCourt provides live-streaming video of proceedings held in the court’s First Session courtroom, with the video stored in an online, public archive of proceedings.273 The project also includes an in-court wifi network for use by journalists and bloggers.274 The long-term goal of the project is to use the experience in the Quincy court “to help courts around the country implement technologies and craft digital media policies.”275 264. See infra note 282. 265. See infra p. 250, et. seq. 266. Courtroom View Network v. Justices of the Super. Ct., 2010 WL 4942139, *1 (Mass. Dec. 3, 2010). The court broadcasting rule is Mass. Sup. Jud. Ct. Rule 1:19, which generally permits such broadcasting, subject to certain limitations. 267. Id. 268. See Mass. Sup. Jud. Ct., Notice Inviting Comment: Proposed Amendment to Rule 1:19 of the Rules of the Supreme Judicial Court, Dec. 3, 2010, http://www.mass.gov/courts/sjc/comment-sjc-r119-012811.html. 269. Rule 1:19 Subcommittee, Mass. Sup. Jud. Ct., SJC Rule 1:19 Changes, Dec. 3, 2010, available at http://www.mass.gov/courts/sjc/docs/Rules/sjc-r119-proposed-summary-changes-012811.pdf. 270. Email from Christine P. Burak, Senior Counsel, Massachusetts Supreme Judicial Court, to author (May 26, 2011). 271. See http://opencourt.us. “The project is being run by WBUR, Boston’s NPR station, with the full cooperation of Quincy District Court and the Supreme Judicial Court of Massachusetts. Joe Spurr and Val Wang will be in court most days to facilitate the project. The project is also being supported by the Massachusetts Supreme Judicial Court Judiciary-Media Committee, the National Conference of the Court Public Information Officers, the Boston University School of Communication and the Citizen Media Law Project at Harvard’s Berkman Center for Internet and Society.” Opencourt.us, Frequently Asked Questions: Who is involved in the project?, http://opencourt.us/about/faq/#who. 272. Opencourt.us, What is OpenCourt?, http://opencourt.us/about/. 273. Opencourt.us, Frequently Asked Questions, http://opencourt.us/about/faq/. 274. Id. 275. Opencourt.us, What is OpenCourt?, http://opencourt.us/about/. Reynolds Courts & Media Law Journal

249


Cameras in the Courts

The New Federal Experiment

O

n September 14, 2010 it was déjà vu all over again as the Judicial Conference once again authorized a second Cameras in the Courtroom Pilot Project, to last up to three years.276 The pilot will again “evaluate the effect of cameras in district court courtrooms, of video recordings of proceedings therein, and of publication of such video recordings,”277 and once again Federal Judicial Center will study the effects of the program.278 Under the test, court personnel will operate the cameras and equipment, which will be used to record civil proceedings in up to 150 district court courtrooms selected for the program, with the consent of the parties required.279 Each court will decide whether to release the recordings to the public and press.280 The test will also include a national survey of all district judges, whether or not they participate in the pilot, to determine their views on cameras in the courtroom.281 On June 8, 2011, the Committee on Court Administration and Case Management (CACM) of the Judicial Conference of the United States, in consultation with the Federal Judicial Center (FJC), announced the selection of fourteen (14) federal trial courts that have voluntarily agreed to take part in a “digital video pilot” set to commence July 18, 2011.282 The announcement stressed that district judges volunteering for the three-year experiment would be required to follow guidelines adopted by the CACM.283 These guidelines impose restrictions that may undermine the efficacy of the experiment. They provide that “pilot recordings will not be simulcast, but will be made available as soon as possible on www.uscourts.gov and on local participating court websites at the court’s discretion.”284 And only courts participating in the program may record court proceedings for the purpose of public release; courts not selected for participation in the program may not record and release recordings of their proceedings.285 The guidelines impose further limitations on the courts participating in the pilot. Only coverage of civil proceedings will be permitted, with the presiding judge making the case 276. See U.S. Jud. Conf., Rpt. of the Proceedings of the Jud. Conf. of the U.S. (Sept. 14, 2010), at 11-12, available at http://www.uscourts.gov/FederalCourts/JudicialConference/Proceedings/Proceedings.aspx?doc=/uscourts/FederalCourts/judconf/proceedings/2010-09.pdf. See also U.S. Jud. Conf., Judiciary Approves Pilot Project for Cameras in District Courts (press release), Sept. 14, 2010, available at http://www.uscourts.gov/News/NewsView/10-09-14/Judiciary_Approves_Pilot_Project_ for_Cameras_in_District_Courts.aspx. 277. Rpt. of the Proceedings of the Jud. Conf. of the U.S. (Sept. 14, 2010), supra, at 11. 278. Id. at 12. 279. Id. 280. Id. 281. Id. 282. Press Release, U.S. Jud. Conf., Courts Selected for Federal Cameras in Court Pilot Study, June 8, 2011, http://www.uscourts.gov/News/NewsView/11-06-08/Courts_Selected_for_Federal_Cameras_in_ Court_Pilot_Study.aspx. The courts selected to participate are: Middle District of Alabama, Northern District of California, Southern District of Florida, District of Guam, Northern District of Illinois, Southern District of Iowa, District of Kansas, District of Massachusetts, Eastern District of Missouri, District of Nebraska, Northern District of Ohio, Southern District of Ohio, Western District of Tennessee and Western District of Washington. Id. 283. Id. 284. Id. See also U.S. Jud. Conf. Comm. on Ct. Admin. & Case Mgmt., Guidelines for the Cameras Pilot Project in the District Courts, §§ 3(a)(5), 6(a)(1)-(2) (2011), available at http://www.uscourts.gov/uscourts/News/2011/docs/CamerasGuidelines.pdf. 285. U.S. Jud. Conf. Comm. on Ct. Admin. & Case Mgmt., Guidelines for the Cameras Pilot Project in the District Courts, § 1(b), supra.

250

Volume 1, Issue 3


Cameras in the Courts selection,286 and the consent of all parties “of each proceeding in a case” required.287 Coverage of the prospective jury during voir dire is prohibited, as is coverage of jurors or alternate jurors.288 Only court personnel or its agents will be permitted to record the proceedings, with the presiding judge having the ability to instantly stop a recording if necessary.289 Recordings by any other entities or persons—including the media and its representatives—are prohibited.290 The guidelines also address camera placement291 and technical setup.292 It should be noted that funding for equipment or technical support will be limited, and courts have been discouraged “from purchasing new equipment.”293

Court Participation Second Circuit

None of the district courts in the second federal pilot program are located in the Second Circuit. Thus, the new pilot project will not change much in the appeals court, which has allowed cameras in oral argument since March 2006.294 According to Catherine O’Hagan Wolfe, Clerk of Court for the Circuit, since December 2006, the court has received approximately 12 requests to videotape oral argument, and approximately five of these requests were granted.295 “The broadcasts of oral arguments appear not to have generated much interest or demand for more,” she added. “For our part, the Second Circuit will continue our current practice and is deferring re-consideration of our policy regarding video broadcasting until we return to our historic court building, which is under renovation.”296

Ninth Circuit In contrast to the Second Circuit, the Ninth Circuit has three district courts participating in the federal program.297 David J. Madden, Assistant Circuit Executive for the U.S. 286. Id., § 2(a), (b). Additionally, “[a] presiding judge may refuse, limit, or terminate the recording of an entire case, portions thereof, or testimony of particular witnesses: in the interests of justice; to protect the rights of the parties, and witnesses, and the dignity of the court; to assure the orderly conduct of proceedings; or for any reason considered necessary or appropriate by the presiding judge,” or choose not to post the video for public view. Id., § 4(a). 287. Id., §§ 1, 2(a)-(c). “Consent to the recording of one proceeding in a case will not be construed as consent to any other proceeding in a case.” Id., § 2(c) (emphasis added). 288. Id., § 4(b)(1). 289. Id., §§1(f ), 3(a)(5), 4(a), and 5(a), (c). 290. Id., §§1(f ) and 5(a). “The media or its representatives will not be permitted to create recordings of courtroom proceedings.” Id., § 5(c) (emphasis in original). 291. The guidelines recommend three to four inconspicuously fix-placed cameras, focused “on the judge, the witness, the lawyers' podium, and/or counsel tables,” Id., § 3(a)(1). 292. The guidelines also recommend that the camera inputs, plus “a feed from the [court’s] electronic evidence presentation system,” be input to a switcher that incorporates them onto one screen, and that the recording equipment also should include an encoder to record the file for posting. Id., § 3(a)(2)-(3). 293. Id., § 3(c). 294. Email from Catherine O’Hagan Wolfe, Clerk of Court for the U.S. Court of Appeals for the Second Circuit, to author (May 25, 2011). See also 2d Cir. Ct. of App., Cameras In The Courtroom - 2d Circuit Guidelines (adopted Mar. 1996), available at http://www.ca2.uscourts.gov/Docs/CE/Cameras.pdf. 295. Id. 296. Id. 297. These courts are: Northern District of California, District of Guam, and Western District of Washington. U.S. Jud. Conf., Courts Selected for Federal Cameras in Court Pilot Study (press release), June 8, 2011, http://www.uscourts.gov/News/NewsView/11-06-08/Courts_Selected_for_Federal_Cameras_ in_Court_Pilot_Study.aspx. Reynolds Courts & Media Law Journal

251


Cameras in the Courts Courts for the Ninth Circuit, believes that the groundwork laid by the circuit’s own camera program, which included preparation of a model local rule and suggested guidelines, has courts in the Ninth Circuit well-positioned to participate in the national effort. According to Madden, “Chief Judge Alex Kozinski, Circuit Judges Sidney R. Thomas and Cathy Catterson have met several times with chief district judges of the circuit to encourage participation [in the federal program].”298 Madden also said that two of these courts—the Northern District of California and the Western District of Washington (which was among the first courts chosen for the previous pilot in 1990)—have already amended their local rules to allow cameras under either a national or circuit program.299 In the Northern District of California, according to Chief Judge James Ware, a recent survey of the court’s 18 Article III judges300 circulated as part of the court’s application to the pilot program found that: “three are supportive and willing to participate; seven were skeptical but willing to participate; three have not formed an opinion but are willing to participate; and three are not willing to participate. Two judges did not respond.”301 While Chief Judge Ware includes himself among the skeptics, he believes that the program has “sufficient flexibility,” so the district has decided to participate. “I see an educational value in the public being able to see actual proceedings take place,” he said.302 William M. McCool, District Court Executive/Clerk of the U.S. District Court for the Western District of Washington, wrote that, in anticipation of being included in the pilot program, the court had implemented a new local rule in November 2010.303 According to McCool, the court has three courtrooms in the Seattle courthouse with cameras already installed that will be used for the pilot, and the court has invested in additional technology in the three courtrooms as compelled by the technical requirements for the project.

Tenth Circuit According to the Clerk of Court for the District Court of Kansas, Timothy O’Brien, only one courtroom in the district’s three federal courthouses—in Wichita, Topeka and Kansas City—only the courtroom used by U.S. District Judge Julie Robinson in Topeka has been wired to allow recording.304 In the Eastern District of Missouri there are courthouses in St. Louis, Cape Girardeau, and Hannibal. While only five of the courtrooms in these buildings have video conferencing capability, the district also has a portable system available “that can be moved into any

298. E-mail from David J. Madden, Assistant Circuit Executive for the U.S. Courts for the Ninth Circuit (April 26, 2011). 299. See In re: Adopting Amendment to Local Gen’l Rule 4, Gen’l Order No. 10-06 (W.D. Wash. Nov. 18, 2010), available at http://www.wawd.uscourts.gov/documents/ReferenceMaterials/GeneralOrders/11-18-10%20GO%20adopting%20amendment%20to%20Local%20General%20 Rule%204.pdf; and Civ. Local R. 77-3 (N.D. Cal.) (2011), available at http://www.cand.uscourts. gov/filelibrary/3/Civ6-11.pdf. See also supra note 194, and accompanying text. 300. The survey was conducted prior to the confirmation of District Judge Edward M. Chen, who became the court’s nineteenth active district judge on May 12, 2011. See N.D. Cal., Edward M. Chen Sworn In As United States District Judge (press release), n.d. [May 13, 2011], http://www.cand.uscourts.gov/news/41. 301. Ginny LaRoe, Northern District of Calif. Court to Test Digital Video Recording, The Recorder, April 26, 2011, http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202491425431. 302. Id. 303. E-mail from William M. McCool, District Court Executive/Clerk of the U.S. District Court for the Western District of Washington (May 6, 2011). See also infrasupra note 299. 304. See Roxana Hegeman, Federal courts experiment with courtroom cameras, Associated Press, available at http://www.newstribune.com/news/2011/jun/12/federal-courts-experiment-courtroom-cameras/.

252

Volume 1, Issue 3


Cameras in the Courts courtroom needed,” said Missouri Clerk of Court Jim Woodward.305 “It will be interesting to see how many times we’ll have the opportunity to actually do the videotaping because of the limitations that are designed into the study and the requirements for consent and concurrence of the presiding courts,” Woodward added. 306 The District of Guam has been consulting on proposed language for a rule change.307 Frances Tydingco-Gatewood, Chief Judge of the Guam federal court,308 said that while she is skeptical of cameras in courts, especially in criminal trials, “It appears to me that some people definitely want this. It appears we will just have to test it.”309

Reaction Reaction outside the courts to the latest federal experiment with cameras has been mixed. “There’s no doubt this change shows significant progress. But what’s most remarkable to me is that they are doing it almost 20 YEARS after their own experiment said it would be a fine idea,” said Lucy Dalglish, Executive Director of the Reporters Committee for “We ought to be able to cover court Freedom of the Press.310 “Having cameras in the courtroom seems almost quaint in comproceedings the way we cover parison with today’s tweeters and bloggers,” she added. “The courts may have wished they congressional hearings. What are had allowed broadcast of full trials all along they afraid of ?” rather than 140-character reports of trials.”311 “Nevertheless,” she added, “I’m glad to see there are so many [courts] from all over the country [in the program]. I’m sure they’ll find the cameras unobtrusive and very helpful in showing the public that very high quality justice gets done in the federal courts.”312 Bruce Collins, general counsel of C-SPAN, said that the program’s guidelines give judges and the parties too much control.313 “The judges are showing no courage in this, compared to the states,” Collins said. “We ought to be able to cover court proceedings the way we cover congressional hearings. What are they afraid of?”314 305. Id. 306. Id. 307. E-mail from David J. Madden, supra note 298. 308. Tydingco-Gatewood is also the only federal judge in the district; there is also a magistrate judge. See 48 U.S.C. § 1424 (2011) (establishing federal District Court of Guam). 309. Brett Kelman, Cameras enter civil court, Pacific Daily News, June 9, 2011, http://www.guampdn. com/article/20110610/NEWS01/106100312. Judge Tydingco-Gatewood also said that she would prefer to allow journalists to control their own cameras, rather than follow the guidelines’ requirement that court personnel operate court-owned cameras, and that she will “pursue” that possibility. Id. 310. Email from Lucy Dalglish, Executive Director of the Reporters Committee for Freedom of the Press (May 16, 2011) (emphasis in the original). 311. Id. 312. Email from Lucy Dalglish, Executive Director of the Reporters Committee for Freedom of the Press (June 9, 2011). 313. Tony Mauro, Restrictive Rules Announced for Federal Courts Camera Experiment, The BLT: Blog of the Legal Times, June 8, 2011, http://legaltimes.typepad.com/blt/2011/06/restrictive-rules-announced-for-federal-courts-camera-experiment.html. C-SPAN has long campaigned for cameras to be allowed in federal courts, especially the U.S. Supreme Court. See C-SPAN Timeline: Cameras in Court, http://www.c-span.org/The-Courts/Cameras-in-The-Court-Timeline/. 314. Id. Like the federal camera experiment, cameras in the House and Senate chambers are operated by personnel employed by those bodies, not by the media. C-SPAN has long sought to operate the cameras Reynolds Courts & Media Law Journal

253


Cameras in the Courts But First Amendment attorney Robert Corn-Revere, a partner in the law firm Davis Wright Tremaine, said in an email that the “the Pilot Project is a very cautious foray into a world in which state courts already have accumulated a great deal of experience. As such, it is both good news and bad news.”315 The good news is that the federal system is resuming its experiment with providing more openness for court proceedings. Hopefully, it will pave the way for more expansive access opportunities after the Pilot Project results are analyzed. The bad news is that the restrictions imposed on the use of cameras may not provide a complete view of the potential benefits, such as allowing camera access by responsible outside organizations. Overall, the Pilot Project is a positive development that hopefully will help demystify the use of cameras in the federal court system.316

“I have mixed emotions,” said Kathleen Kirby, a partner at the Wiley Rein law firm, who represents the Radio Television Digital News Association.317 “On one hand, we haven’t had coverage of federal courts at all, so any baby steps in the right direction I welcome. On the other hand, given how restrictive these rules appear to be, I wonder if they’re going to get a meaningful sample so they really can evaluate the effects of camera coverage on federal court proceedings.”318 “The fact that all parties must consent to being recorded will eliminate a lot of proceedings from the get-go,” she said. “There is no presumption of openness. There is no appeal process [for denials of coverage requests].319 It truly is an experiment, completely within the judge’s control with total power by the judge and the parties. That makes me wonder how many parties are going to consent.”320 Jonathan Sherman of Boies, Schiller & Flexner LLP, who represented Court TV and now represents Courtroom View, expressed similar misgivings. The pilot program, he said, “is unlikely to provide a meaningful or balanced test.”321 First, it is not at all clear what the Judicial Conference thinks it is testing that it was unable to test 20 years ago during the first pilot program.  Second, and more importantly, the party consent [requirement] — unexplained, as it is — effectively kills the experiment in the womb.  Every state jurisdiction that has tried a party consent requirement has had the same result:  proceedings are almost never covered because one of the parties always objects. For example, in 1978, Florida first experimented with a party consent feature.  Not one proceeding was televised because vetoes were exercised in every proceeding.  There is no reason to believe it is going to be any different this time around.  I will be very surprised if the Conference is able to generate any meaningful data during the next three years.”322

When asked about the proposed guidelines for the new federal pilot that would restrict participating courts to using only court staff to record proceedings and prohibit other entities or in Congress, and provide the feed to other news outlets and online. See C-SPAN has a long history of requesting camera access, http://www.c-span.org/About/About-C-SPAN/. 315. Email from Robert Corn-Revere, Partner, Davis Wright Tremaine, LLP, to author (June 9, 2011). 316. Id. 317. Telephone Interview with Kathleen Kirby, Partner, Wiley Rein LLP (on behalf of the Radio Television Digital News Assn. & Fdtn.) (June 9, 2011). 318. Id. 319. See Judicial Conference Committee on Court Administration and Case Management, Guidelines for the Cameras Pilot Project in the District Courts, § 1(e) (“It is not intended that a grant or denial of a request to record a proceeding be subject to appellate review insofar as it pertains to and arises under these guidelines, except as otherwise provided by law.”) 320. Id. 321. Email from Jonathan Sherman, Partner, Boies, Schiller & Flexner LLP (June 13, 2011). 322. Id.

254

Volume 1, Issue 3


Cameras in the Courts persons from doing so, CVN President Michael Breyer said, “the wheels of justice turn slowly, but they generally turn in the right direction. Allowing individual judges any type of discretion to experiment with cameras will result in greater access, transparency and efficiency in our court system.”323 “While the Federal Court at this point wants total control in respect to conducting a pilot project, we hope the Court will be open to better serving the public by working with the media and other private and public entities during the pilot project and most importantly once a permanent program is in place,” he added.324

Conclusion

I

n 1884, the famed jurist Oliver Wendell Holmes took note of the “vast importance to the public that the proceedings of courts of justice should be universally known,”325 pointing to the confidence instilled in the courts by public trials. The chief advantage to the country which we can discern, and that which we understand to be intended by the foregoing passage, is the security which publicity gives for the proper administration of justice. … It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.326

In 2011, electronic coverage is the unblinking eye of the public, and to deny its unrivaled potential to convey information instantly, and to the widest audience, is to deny reality. Federal courts should not be viewed with suspicion and distrust. Instead, they should be governed by the words of Chief Justice Burger when delivering the opinion of the Court in Press Enterprise I: The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of the criminal trial and the acceptance of fairness so essential to public confidence in the system.327

Electronic coverage provides modern society with almost all of its current information. In order for the public to be fully informed about decisions made in federal courts, the electronic media must be permitted to photograph, record, and broadcast those proceedings so that the public may see the administration of justice for itself. To that end, the electronic media must be permitted to do what it does best – inform its viewers by presenting to them the sights and sounds of things, places, and people that they would not ordinarily be able to see or hear. The right of a free press embodied in the First Amendment is predicated on the belief that an informed society will remain just and free. It will take courage and vision for this doctrine to endure and dynamically continue to evolve as one of the fundamental principles upon which this country was founded.

323. Email from Michael Breyer, President of CourtroomView Network, to author (June 9, 2011). 324. Id. 325. Cowley v. Pulsifer, 137 Mass. 392, 394 (1884) (quoting Rex v. Wright, 8 T. R. 293, 298 [K.B. 1799]). 326. Id. 327. Press-Enterrpise II, supra, 464 U.S. at 508. Reynolds Courts & Media Law Journal

255


Cameras in the Courts To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment. We may strike down the statute which embodies it on the ground that, in our opinion, the measure is arbitrary, capricious, or unreasonable. ... But in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let our minds be bold.328

The federal judiciary must be mindful of its high power not to erect its own prejudices into judicial rules. Society can ill afford to let the misplaced and speculative objections of jurists antagonistic to the electronic press substantially undermine a fundamental constitutional right by lens-capping the very tools of its profession and eviscerating the very means by which most Americans receive their news. It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.329

In light of current broadband and storage capabilities to present complete gavel-to-gavel coverage of court proceedings on the Internet, whether through live streaming or archived files, the rule barring electronic coverage of federal court proceedings unconvincingly adheres to another time. In an age when it is no longer practical for all members of the community to pack into the courthouse and personally take in “court day,� the media act as public surrogates, transmitting court proceedings to a vast public audience and enabling the public to satisfy its civic duty in monitoring the government. The benefits of allowing such coverage are numerous and significant: it brings transparency to the federal judicial system; provides increased accountability from litigants, judges, and the press; and educates citizens about the judicial process. Coverage will allow the public to ensure that proceedings are conducted fairly, and, by extension, that government systems are working correctly. We expect that the watchful eye of the public will demand increased accountability from all courtroom actors, each of whom may feel a heightened responsibility to conduct themselves in a manner appropriate to their role at trial, thereby diminishing the risk of rogue actors and other wayward judicial actions potentially harmful to the interests of justice. The written press, for its part, will also feel the weight of increased accountability, as it will no longer be the only source of information about the courts, and claims of sensationalistic or inaccurate reporting will be readily verifiable by a public able to view the actual proceedings for itself. Although some critics of audio-visual coverage have asserted that such coverage will likely impede the fair administration of justice or cause irreparable harm, empirical studies of such questions have proved these concerns to be speculative at best. Critics have argued against cameras in the courtroom on numerous grounds: because they claim that cameras and other hardware are disruptive of trials, that increased public scrutiny frequently leads 328. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (footnote omitted). This case involved an Oklahoma statute that required a license for the manufacture of ice. The majority affirmed a decision striking down the statute. Brandeis dissented, saying that Oklahoma has chosen to regulate the ice industry just as it could regulate any other public utility, the definition of which must evolve over time. Id. 329. Cowley v. Pulsifer, supra, 137 Mass. at 399.

256

Volume 1, Issue 3


Cameras in the Courts to grandstanding and lawyers “trying their case in the press,” and that the sensationalistic nature of televised coverage will infringe upon the privacy of participants and create public misperceptions about the judiciary. Each of these concerns, however, has either been specifically refuted by prior experiments with and studies of audio-visual coverage in the courts, or can be expressly addressed by enacting intrinsic safeguards to complement judicial trial court discretion. The ability of the public to view actual courtroom trials should not be trivialized. It touches on an important right, which goes well beyond the mere satisfaction of a viewer’s curiosity. That right, advanced by cameras in the courtroom, is the right of the people to monitor the official functions of their government, including that of the judicial system. Nothing is more fundamental to the democratic system of governance than this right of the people to know how their government is functioning on their behalf. The Internet has enabled gavel-to-gavel audio-visual coverage of courtroom proceedings, because of its intrinsic capacity to permit unlimited content rather than be bound by the time constraints of traditional broadcast and cable media. Additionally, newspaper websites have made it possible for the print media, previously relegated to still images and written words, to also provide audio-visual coverage. Websites carrying news and information have the capacity to convey and archive video of full trial proceedings. A growing trend in many communities to have all-news cable television stations that focus around the clock on local events would also permit extended coverage of trials, not just generate short stories with sound bites. Finally, modern technology has long since transcended the difficulties that led to bans on such coverage. There are no more whirling, noisy cameras. There are no more glaring lights. Nor does a thundering herd of technicians have to go in and out of the courtroom to set up, operate, and tear down their gear. Modern equipment is inaudible, requires no flashes or extra lights, and can be operated by a limited number of trained professionals. And while courtroom artists have contributed greatly to the coverage of courtroom proceedings in the absence of cameras, for the public to be relegated to viewing something more akin to cave drawings in an age of high-definition television could not be more anachronistic. The courtroom trial has been a fixture of justice and fairness throughout our nation’s history. Modern technology can foster and enhance this tradition, if allowed to do so by permitting the taking of photographs, public broadcasting or televising, or recording for the purpose of participation in a pilot or other authorized projects. There are those who say that the new federal experiment is more than a day late and a dollar short, and that the results will not yield any new substantive data and may only reinforce old prejudices against camera coverage. But given the Judicial Conference’s control over the matter, the choice for proponents involves an analysis where there is more to be gained than lost, no matter how flawed the new pilot may be. In 1996, the Judicial Conference recognized that Technology that permits the reproduction of sound and visual images provides our courts with a valuable resource to assist in their efforts to improve the administration of justice. That resource should be utilized, however, for purposes and in a manner consistent with the nature and objective of the judicial process.”330

By 2014, after another three-year experiment, the federal judiciary should finally acknowledge that those concepts are not mutually exclusive and permit cameras in all courtrooms for all proceedings on a permanent basis. 330. 10 Jud. Conf. of the U.S., Guide to the Judiciary Policy §410.10 (rev. July 27, 2010). Reynolds Courts & Media Law Journal

257


Cameras in the Courts In a recent talk before the Fourth Circuit Appeals Court Annual Conference, Chief Justice Roberts drew an analogy to the turtles331 depicted in the architectural motifs around the Supreme Court in discussing the Court’s ever-so-slowly evolving accommodation of technology to cover its activities glacial-like approach to electronic media coverage of its cases.332 He described how, like the turtle, the Court moves “slowly but surely.”333 Given the revolutionary advances in technology coupled with the findings and recommendations from the previous federal pilot, one would hope that the Judicial Conference will not once again retreat into its shell of perceived but unsubstantiated concerns regarding cameras in the courtroom, but rather soar to enlightened heights, like the eagle in the Supreme Court Seal.334 As the Chief Justice jokingly acknowledged during his confirmation hearings in 2005, “television cameras are nothing to be afraid of.”335

331. Tortoises “are found throughout the Supreme Court Building, representing righteousness, longevity and the slow deliberative pace of justice.” Sup. Ct. Hist. Soc., Gift Catalogue (1995-96). 332. C-Span Video Library: A Conversation with Chief Justice Roberts, June 25, 2011, http://www.c-spanvideo.org/program/FourthCi. See also Chief justice uneasy about cameras in courtroom, Associated Press, June 25, 2011, http://www.kivitv.com/story/14975492/chief-justice-uneasy-about-cameras-in-courtroom. 333. Id. 334. The Supreme Court Seal, depicting an eagle grasping 13 arrows in one talon, and an olive branch in the other, can be seen at http://www.pbs.org/wnet/supremecourt/democracy/authority1.html. 335. Transcript: Day Three of the Roberts Confirmation Hearings, Wash. Post, Sept. 14, 2005, http://www. washingtonpost.com/wp-dyn/content/article/2005/09/14/AR2005091401451.html.

258

Volume 1, Issue 3


Let the Cameras Roll:

Cameras in the Court and the Myth of Supreme Court Exceptionalism Tony Mauro “When you get Cabinet meetings on the air, call me!” – Chief Justice Warren Burger, in his 1986 response to media requests to allow broadcast of a Supreme Court oral argument.1 “There is no danger I apprehend so much as the consolidation of our government by the noiseless, and therefore unalarming, instrumentality of the supreme court.” – Thomas Jefferson, in an 1823 letter to William Johnson2

T

he Supreme Court of the United States has never allowed the broadcast news media to bring the tools of their trade – cameras and microphones – into its courtroom for coverage of its proceedings. Unlike almost every other public institution in the United States, it has been able to maintain such a ban to this day, ignoring the successive winds of change brought by radio, television and the Internet. That defiant stance is born of fear of change, nostalgia, a self-interested desire for anonymity, but most of all exceptionalism: the Court’s view of itself as a unique institution that can and should resist the demands of the information age. “We operate on a different time line, a different chronology. We speak a different grammar,” Justice Anthony Kennedy once said in response to questions from members of Congress about allowing cameras in.3 As recently as June 25, 2011, when Chief Justice John Roberts Jr. was asked about cameras in the Supreme Court, he acknowledged that many states have allowed cameras in, but said, “The Supreme Court is different, not only domestically but in terms of its impact worldwide.”4

Editor’s Note: As a long-time observer of the Court, Tony Mauro has a unique perspective on its history and approach to the issue of cameras in the courts. He has strong views on the question of cameras in the U.S. Supreme Court, which we are pleased to publish as a means of furthering debate on the subject. Those with differing views are welcome to submit letters or articles for publication. 1. A Year in the Life of the Supreme Court 271 (Rodney Smolla ed., 1995). 2. Letter from Thomas Jefferson to Judge William Johnson (Mar. 4, 1823), in The Writings of Thomas Jefferson (H.A. Washington ed., 1861), available at http://yamaguchy.com/library/jefferson/1823.html. 3. Tony Mauro, Roll the Cameras (or Soutersaurus Rex), Legal Times, April 18, 1996, at 9. 4. C-Span Video Library: A Conversation with Chief Justice Roberts, June 25, 2011, http://www.c-spanvideo.org/program/FourthCi. Reynolds Courts & Media Law Journal

259


Let the Cameras Roll Neither Kennedy nor Roberts explained why that “differentness” justifies keeping cameras out of the Supreme Court, however. In this article I plan to review the history of the long and unsuccessful effort to change the Court’s mind, and to examine whether the Court’s exceptionalist self-image or the other reasons it offers for its resistance to cameras can or should stand in the way of the demands of the modern era of access and transparency.

Into the Secret Society

T

he most recent time the U.S. Supreme Court was in the media spotlight for an extended period was in the summer and fall of 2010, when Elena Kagan was nominated, confirmed, and installed as the newest justice on the Supreme Court. Cameras were rolling when President Barack Obama announced the nomination at the White House, and when the Senate held its confirmation hearings. As usual, the viewing public was treated to a civics lesson about the U.S. Constitution and important legal issues, in between the antics and bloviating of individual senators. But at the successful end of the process, when Kagan was about to embark on her new life-tenured career, her visibility began to end. The modern-day swearing-in of a justice is a three-part affair. On August 5, 2010, Kagan took her constitutional oath in private in the justices’ conference room. Then she took her judicial oath of office in the wood-paneled West Conference Room. A pool television camera recorded this second event, which was broadcast live on cable news channels.5 And then, on Oct. 1, the justices held a formal investiture ceremony in the Court chamber. No cameras were allowed for the investiture, but the press was advised that afterward, Chief Justice Roberts and Justice Kagan would walk down the Court’s marble steps for a photo opportunity.6 For decades, that has been the only sop the Court has offered to fill the needs of the media for photos and footage they need for coverage of the event. The point of reciting this intricate sequence of events is to illustrate how, after a very public process of nomination and confirmation, it was as if Kagan was being initiated into a secret society. Two small concessions had been made to the public and the media: the pool camera broadcast of the judicial oath in a Court conference room, and a photo op outside after the formal investiture. But no cameras were allowed in the inner sanctum – otherwise known as the Supreme Court chamber, the ultimate “people’s court.” It is hard to fathom why different levels of access were assigned to each of the events, rather than allowing cameras into all of them. That point was driven home again on Oct. 4, when the term began with a newly constituted array of justices hearing arguments. It was an historic moment: for the first time ever, three of the justices were women. But who saw it? Only the fortunate 250 or so members of the press and public who were able to find seats in the Court chamber that morning. Again: why are the cameras kept away? In part it is because the Court can keep them away, as it always has. One by one, major institutions in the executive and legislative branches of the federal government, and all branches of state governments, have let the cameras in – some eagerly, some reluctantly. But the Supreme Court has resisted the trend altogether, and the other branches, as well as the public, have not insisted otherwise. Well into the 21st century, the nation’s highest court still bars the door to the premier media of the 20th. The mystique of the invisible Supreme Court has been allowed to persist, and the justices, or most of them, are content to leave it that way. 5. Press Release, U.S. Sup. Ct. [Swearing-In of Associate Justice Elena Kegan], Aug. 5, 2010, http:// www.supremecourt.gov/publicinfo/press/viewpressreleases.aspx?FileName=pr_08-05-10.html. 6. Press Release, U.S. Sup. Ct. [Formal Investiture of Associate Justice Elena Kegan], Sept. 27, 2010, http://www.supremecourt.gov/publicinfo/press/viewpressreleases.aspx?FileName=pr_09-27-10.html.

260

Volume 1, Issue 3


Let the Cameras Roll As a result, the Court is allowed to deprive the public of an undeniable educational feast. Justices debate endlessly the importance of oral argument to their deliberations, but do not dispute the fact that it is the one time – usually an hour long – when they all are focused on the same case. They examine its facts and the parties’ arguments, pulling apart both in an intense effort to clarify the issues and, often, to persuade each other. Its value and content as a public event are tremendously important. And yet, it is not visible to the public, beyond the 250 or so members of the public, the bar, and the press who are able to view it in person.7 Despite the current limitations on observing its work, the Supreme Court actually has a long tradition of openness. In its early days, the justices rode circuit, hearing cases around the country and providing “a unique opportunity for the education and persuasion of local citizens about the benefits and responsibilities of the new constitutional system.”8 Circuitriding ended a century ago,9 but has not been replaced by any other method that would give the general public across the country a way of observing Supreme Court justices in action. As the momentum of the information age has brought almost every government institution into greater public view – even the Central Intelligence Agency has a YouTube channel10 – the Supreme Court remains hidden, at least in terms of visual coverage of its proceedings.11

A Brief History of Cameras in Court

T

he uniquely invisible status of the Supreme Court and the federal judiciary in general is, in a sense, the last vestige of the long-running 20th century battle over media access to state courts. In the early days of the last century, as radio and then newsreel films became popular, the broadcast of state court trials was common. The 1924 Richard Leopold and Nathan Loeb12 murder trial and the Scopes “Monkey Trial” of 192513 received extensive coverage. But the media went too far with massive and intrusive coverage of the 1935 trial

7. See pp.266-267, infra, regarding the availability of audio recordings of Supreme Court arguments. 8. David R. Stras, Why Supreme Court Justices Should Ride Circuit Again, 91 Minn. L. Rev. 1710, 1716 (2007), available at http://ssrn.com/abstract=951219. 9. Circuit riding was limited in the 1891 Evarts Act, 26 Stat. 826, and eliminated with adoption of the Judicial Code of 1911, ch. 13, § 289, 36 Stat. 1087, 1167. Id. at 1726, nn.114, 118. 10. Central Intelligence Agency, ciagov’s Channel, http://www.youtube.com/user/ciagov. 11. Still and video cameras are prohibited from the Supreme Court courtroom. The Court began making audio recordings of arguments for archival purposes in 1955, and began releasing them to the media and public with the argument in Bush v. Gore, 531 U.S. 98 (2000). Bruce G. Peabody, “Supreme Court TV”: Televising the Least Accountable Branch?, 33 J. Legis. 144, 147 (2007). Transcripts became available on the Court’s website in 2006, see Press Release, U.S. Sup. Ct. [Availability of oral argument transcripts], Sept. 14, 2006, and audio records in all cases became available on the site in 2010. See Press Release, U.S. Sup. Ct. [Availability of oral argument recordings], Sept. 28, 2010. 12. Eighteen-year-old Leopold, the son of a retired Sears Roebuck vice president, and law student Loeb, son of a millionaire box-maker, pleaded guilty to the murder of 14-year-old Bobby Franks, but were sentenced to life imprisonment after defense attorney Clarence Darrow made an impassioned, 12-hour argument against the death penalty. See Douglas O. Linder, The Leopold and Loeb Trial: A Brief Account, Univ. of Mo. – Kansas City (1997), http://law2.umkc.edu/faculty/projects/ftrials/leoploeb/Accountoftrial.html. 13. In this case, high school biology teacher John Scopes was convicted of violating Tennessee law by teaching evolution, and the judge imposed a $100 fine. The conviction was overturned on appeal on the grounds that such a fine could be imposed only by the jury, not the judge. See Scopes v. State, 154 Tenn. 105, 289 S.W. 363, 367, 53 A.L.R. 821 (Tenn. 1927). Darrow was again the defense attorney; three-time presidential candidate William Jennings Bryant argued for the prosecution. See Douglas O. Linder, State v. John Scopes (“The Monkey Trial”), Univ. of Mo. – Kansas City (n.d. [1997?]), http://law2.umkc.edu/faculty/projects/ftrials/scopes/evolut.htm. Reynolds Courts & Media Law Journal

261


Let the Cameras Roll of Bruno Hauptmann for the kidnapping of Charles Lindbergh’s child.14 A backlash quickly developed, and in 1937 the American Bar Association adopted Canon 35, a firm declaration that media cameras and microphones should be banned from courtrooms because they “degrade the court and create misconceptions with respect thereto.”15 The historical record is slim on whether, during this period, broadcast coverage of the Supreme Court was discussed or requested. Newsreels from 1935, when the Court’s own building first opened, showed justices in staged poses awkwardly walking down the street or reading law books, but never inside the Court chamber itself, during an oral argument.16 In 1946, with the Court’s blessing, Rule 53 of the Federal Rules of Criminal Procedure was adopted, banning the taking of photographs in criminal trials.17 Not every state adopted a ban, however, and controversy over the issue continued. Disputes over broadcast coverage of state trials allowed the Supreme Court to put its jurisprudential stamp on the issue in the 1960s. In Estes v. Texas18 and Sheppard v. Maxwell,19 justices voiced their horror at the excesses of media coverage of sensational trials. In the case of Billie Sol Estes, a Texas financier with powerful political connections, the Court observed that “The television camera is a powerful weapon. Intentionally or inadvertently it can destroy an accused and his case in the eyes of the public.”20 Pointing to the trial’s “carnival atmosphere,” the divided Court ruled that the media coverage was so pervasive that it denied Estes the due process of law guaranteed by the Constitution.21 But some of the justices’ concurring opinions left open the door to the possibility that televising less sensational trials could be constitutional. Justice John Harlan, the swing vote in the Estes case, said television coverage violated the constitutional right to a fair trial “at least as to a notorious criminal trial such as this one.”22 Despite the rulings, state experimentation with televising trials continued, albeit at a slow pace. Acting on petitions by Florida broadcasters, the Supreme Court of Florida authorized coverage on an experimental basis in 1977.23 A Florida trial thus became the basis for the Supreme Court’s most authoritative ruling on the issue of cameras in courtrooms, Chandler v. Florida in 1981.24 Somewhat begrudg 14. For an overview of early audio-visual coverage of infamous trials, see Cameras in the Courtroom, Hearing Before the Senate Judiciary Committee, 109th Cong. (Nov. 9, 2005) (testimony of Henry Schleiff, Chairman & CEO, Court TV Networks), testimony available at http://judiciary.senate.gov/hearings/testimony.cfm?id=e655f9e2809e5476862f735da10c4fec&wit_id=e655f9e2809e5476862f735da10c4fec-3-5, video of entire hearing available at http://judiciary.senate.gov/webcast/judiciary11092005-0930.ram. See also Ronald Goldfarb, TV or Not TV: Television, Justice and the Courts 8-9 (1998). 15. 62 A.B.A. Rep. 1134-35 (1937). 16. See Chief Justice John Roberts, 2010 Year-End Report on the Federal Judiciary 1 (Dec. 31, 2010) (referencing 1935 newsreels as “provid[ing] many Americans with their first look at the Supreme Court’s new building, which opened that year.”), http://www.supremecourt.gov/publicinfo/year-end/2010year-endreport.pdf. 17. Cong. Research Service, Televising Supreme Court and Other Federal Court Proceedings: Legislation & Issues, (Nov. 8, 2006), at 3, available at http://www.fas.org/sgp/crs/secrecy/RL33706.pdf. 18. 381 U.S. 532 (1965). 19. 384 U.S. 333 (1966). 20. Estes, 381 U.S. at 549. 21. Id. at 577. 22. Id. at 587. 23. See In re Petition of Post-Newsweek Stations, Florida, Inc., 347 So. 2d 402 (1977). See also In re Petition of Post-Newsweek Stations, Florida, Inc., 370 So. 2d 764 (1979) (permanently revising Florida’s Canon 3A(7) to allow electronic media and still photography coverage of public judicial proceedings in appellate and trial courts). 24. 449 U.S. 560 (1981).

262

Volume 1, Issue 3


Let the Cameras Roll ingly, the Supreme Court said state rules allowing camera coverage were not unconstitutional – especially with the advent of technology that made cameras a less intrusive presence. “Dangers lurk in this, as in most experiments, but unless we were to conclude that television coverage under all conditions is prohibited by the Constitution, the states must be free to experiment,” wrote Chief Justice Warren Burger for the majority.25 The ruling unleashed widespread experimentation among the states. The American Bar Association’s Canon 35 (renumbered Canon 3A(7))26 which first disapproved the broadcast of trials in 1937, was revised to allow it.27 Now, in many areas of the country, camera coverage of trials has become commonplace.28 The high (or low) point came in 1995, when the murder trial of O.J. Simpson captivated television audiences nationwide. That coverage, and the management of the trial by Judge Lance Ito, was subject to widespread criticism. But in his 1998 book TV or Not TV, author Ronald Goldfarb could still report that since the Chandler decision, “no verdict has been overturned on the basis of prejudice caused by television.”29

Supreme Court Resistance

D

espite the rapid development of a culture and tradition of openness at the level of state courts, the Supreme Court and other federal courts remained stubbornly resistant to the trend. Ironically, perhaps, it was Warren Burger, the justice whose Chandler opinion let a thousand flowers bloom at the state level, who was most responsible for keeping the media at bay in federal courts. Burger was determined to keep cameras and microphones out of his Court. Broadcasters would have to have to climb over his dead body to get in, he reportedly once said.30 He later thought better of that oft-repeated quote, worrying that his words “might give the networks too much of a temptation.”31 (A decade later, Justice David Souter repeated Burger’s “over my dead body” threat.32) In 1986 broadcasters asked Burger for one-time access to air arguments in Bowsher v. Synar,33 a test of the constitutionality of the Gramm-Rudman budget law. Burger sent back a formal denial with a handwritten postscript: “When you get Cabinet meetings on the air, call me!”34 The analogy between private Cabinet meetings—to which the press has never sought access—and public oral arguments was flawed beyond rescue, but it was symbolic of Burger’s nearly obsessive opposition to the idea.

25. Id. at 581. 26. Susanna Barber, News Cameras in the Courtroom: A Free Press – Fair Trial Debate 15 (1987). 27. Id. at 19. 28. For a summary of the states’ rules regarding camera coverage of the courts, see Radio Television Digital News Ass’n, Cameras in the Court: A State-By-State Guide (2011), http://www.rtnda. org/pages/media_items/cameras-in-the-court-a-state-by-state-guide55.php. 29. Goldfarb, supra note 14, at 188. 30. Howard Rosenberg, Burger's Day in Moyers’ Court, L.A. Times, July 9, 1986, § 6, at 1 (quoting Burger in a CBS interview saying, “I once said, early, ‘Over my dead body,’ …”), http://articles.latimes.com/198607-09/entertainment/ca-14289_1_burger-court. 31. See id. 32. On Cameras in Supreme Court, Souter Says, ‘Over My Dead Body,’ Associated Press, Mar. 30, 1996, available at http://www.nytimes.com/1996/03/30/us/on-cameras-in-supreme-court-souter-saysover-my-dead-body.html. 33. 478 U.S. 714 (1986). 34. Smolla, supra note 1. Reynolds Courts & Media Law Journal

263


Let the Cameras Roll Soon after Burger retired in 1986, I interviewed him and asked why he was so opposed to allowing cameras into his court. “Television in a short snippet is simply incapable of making a proper report unless you put the whole thing on,” Burger replied.35 Anticipating such an answer, I asked how the excerpting done on television differed from that done by newspapers. Even The New York Times, I said, does not print complete transcripts of oral arguments. Burger had a quick answer. In a newspaper, he said, “The words aren’t coming right out of the mouth of the judge or the attorney. On television, you see the person and it’s coming right out of his mouth.”36 At first, I thought Burger’s point was that newspaper accounts offered justices “plausible deniability” – the ability to claim they were misquoted. Television images, on the other hand, could not be refuted, because the judge’s utterances were captured on film. But I have since come to believe Burger was making a different point. He was objecting to the fact that by having their images on television, justices and lawyers would be aiding and abetting, in a more concrete way than in newspapers, the creation of improper and misleading reports on the Court. Television can go about its sordid business if it must, Burger seemed to be saying, but leave the justices out of it.37 The campaign for cameras in the Supreme Court, clearly, would have to wait for appointment of a new chief justice. That came in 1986, when Burger retired and was replaced by William Rehnquist. Though Rehnquist had serious misgivings about cameras and the media in general, he at least cracked open the door to discussions and experimentation.

Supreme Court Show and Tell

O

ne positive sign came in 1988, when the Court agreed to a demonstration of how cameras would work inside the Court chamber. Led by then-media lawyer Tim Dyk of Wilmer Cutler & Pickering – now a judge on the U.S. Court of Appeals for the Federal Circuit – a coalition of media organizations wanted the justices to see how far video technology had advanced, and how unobtrusive cameras could be. At first Rehnquist put off the demonstration, waiting for a decent interval after Burger’s departure. When it finally took place, the demonstration received very little publicity. Here is my contemporaneous report: The Supreme Court’s first peek at the television age last week began as a covert operation. To avoid publicity, cameras were whisked into the Supreme Court Building at 7 a.m. on Nov. 21 [1988]. The Court chamber was made off-limits to the public for the day. The cameras were installed, one facing the lawyer’s podium, the other in an alcove that affords a view of the justices. Three justices came down from their chambers, sat in their regular seats on the bench, and posed questions to media lawyer Timothy Dyk so as to replicate an oral argument. Then they stepped down from the bench to watch it on tape. The cameras left, and the videotape will never be made public. All involved agree that no promises were made or sought on either side about the possibility of instituting regular camera coverage of the Court. Media and Court officials alike have tried to minimize the importance of the session, and if not for a leak, the episode might never have been made public. But now that the covert operation has come to light, it’s safe to wonder out loud about the significance of the experiment.

35. See Tony Mauro, The Nine No-See-‘Ems: Justices Keep Out Cameras, Preserve Their Rite of Privacy, Wash. Jour. Rev., Nov. 1986, at 22. 36. Id. 37. See Smolla, supra note 1.

264

Volume 1, Issue 3


Let the Cameras Roll It would be premature to predict that the Court’s no-cameras policy will fall away soon. But the mere fact that cameras were allowed in the building for an experiment of this kind has to be seen as an enormous breakthrough for representatives of the news media…The chill is off now. The movement for cameras in the Court could come from the lower courts or from within the high court itself. The tide has surely turned; in the space of a day it has now become possible to foresee camera access to the federal courts within a matter of years.38

More than two decades later, of course, the Supreme Court is still closed to cameras. Rehnquist, it turned out, was almost as adamant in his opposition to cameras as Burger had been. But he was more politically adept at appearing to consider other points of view.

The First Federal Experiment

S

o, when in 1990 the powerful Rep. Robert Kastenmeier, then chair of the House Judiciary Committee subcommittee that oversaw the courts, wrote to the Judicial Conference that “the time has come for the federal judicial branch to allow cameras in the ...judges and attorneys involved in courtroom,”39 Rehnquist did not reject the idea out of hand. Instead, he wrote to Kasthose proceedings reported “small tenmeier that he was “by no means averse” or no effects” of camera presence to an experiment.40 The Judicial Conference, taking the hint on participants or court decorum... of its titular head, soon agreed to forge ahead. In an institution that usually moves into new areas with glacial speed, Rehnquist’s “by no means averse” formulation amounted to a call to action. In short order, camera coverage of civil proceedings was permitted on an experimental basis in two appeals courts and six district courts. The experiment, which ran from 1991 to 1994, went well.41 Actual use of the access was spotty, with cameras allowed in only about 200 proceedings.42 But judges and attorneys involved in those proceedings reported “small or no effects” of camera presence on participants or court decorum, according to a Federal Judicial Center evaluation of the pilot program. “Overall, attitudes of judges toward electronic media coverage of civil proceedings were initially neutral and became more favorable after experience under the pilot program.”43 In spite of its success, the experiment did not come close to winning over the federal judiciary. It did not help that the Judicial Conference vote on whether to open federal courthouse doors to cameras came soon after the massive coverage of the pretrial hearing in the O.J. Simpson case in California. Though the Simpson trial was not mentioned by name during deliberations, it was “topic A in the hallways,” according to a member of the conference.44 38. Tony Mauro, High Court Sends Covert TV Signal, Legal Times, Nov. 28, 1988, at 24. 39. Smolla, supra note 1, at 270-71. 40. Id. 41. U.S. Jud. Conf., Comm. on Ct. Admin. & Case Mgmt., Report of the Judicial Conference Committee on Court Administration and Case Management (Sept. 1994), at 3 (“… the experimental media coverage did not create sufficient disruption of civil proceedings to warrant the continuation of the prohibition against such coverage.”) 42. Fed. Jud. Ctr., Electronic Media Coverage of Federal Civil Proceedings: An Evaluation of the Pilot Program in Six District Courts and Two Courts of Appeals 7 (1994), available at http://www.fjc.gov/public/pdf.nsf/lookup/elecmediacov.pdf/$file/elecmediacov.pdf. 43. Id. at 7. 44. Tony Mauro, Camera Debate Was Sloppy and Shallow, Legal Times, Sept. 26, 1994, at 10. Reynolds Courts & Media Law Journal

265


Let the Cameras Roll

Pressure and Progress, In Stops and Starts

A

ny momentum toward cameras in the Supreme Court, if there ever was any, evaporated in the wake of the Simpson trial. “I’m delighted I’m less famous than Judge Ito,” Justice Kennedy said not long after the trial.45 Other factors closer to home also soured the justices on cameras. The contentious confirmation hearings of Robert Bork in 1987 and Clarence Thomas in 1991 offended justices of all stripes. They felt that the glare of the spotlight stripped the nominees of their privacy and dignity. Even the retired Justice Thurgood Marshall, once a supporter of camera access, changed his mind because of the hearings. “I said I’d not be a part of TV doing that to any court,” Marshall said in a 1992 interview.46 At a judicial conference in 1993, then-justice Byron White also cited his interest in anonymity. “I am very pleased to be able to walk around, and very, very seldom am I recognized” because of the absence of television coverage of his court, he said. “It’s very selfish, I know.”47 Interestingly, White predicted that someday the Court would be made up of justices supportive of cameras who would ask, “What was wrong with those old guys?”48 But that has not happened. Media groups, by now war-weary on the issue, have waited for the arrival of the new justices White was talking about: young, media-savvy individuals who would open the doors to cameras and wonder what took the Court so long. By and large, the younger Supreme Court nominees have pledged open-mindedness on the issue at their confirmation hearings. But once inside the marble palace, the allure of easy anonymity and the sense that the Supreme Court is unlike other institutions envelops them, and their open-mindedness fades.49 Suffice it to say that there was almost no movement among the justices on the issue of cameras in the Court through the late 1990s and the early 2000s. Still, small changes, and the pressure for bigger ones, were taking place. The momentum of the information age, and its demand for instant transparency 24/7 could not be ignored, even at an institution that still gives out quill pens to the lawyers who argue before it. Better late than never, in 2000, the Supreme Court launched its own web site, a generally user-friendly site that enabled readers to access the Court’s docket and opinions quickly for the first time. A decade earlier it had made decisions available electronically to news and legal information organizations, but now the general public could view the decisions within a few minutes of their announcement from the bench. Also in 2000, the Court had taken perhaps a more important step by allowing the audio of certain high-profile oral arguments to be released to the media shortly after they occurred. The Court did so in response to a request from C-SPAN in the historic cases of Bush v. Palm Beach County Canvassing Board50 and Bush v. Gore,51 after turning down a request from the major broadcast networks for live television or radio access. After receiving positive reaction to the release, the Court for several terms thereafter approved sameday release of audiotapes of a handful of major cases each term.

45. Tony Mauro, The Camera-Shy Federal Courts, 12:1 Media Studies J. 60, 63 (Winter 1998). 46. Henry J. Reske, Cameras Experiment One Year Old, ABA J., July 1992, at 28. 47. Mauro, The Camera-Shy Federal Courts, supra, 12:1 Media Studies J. at 64. 48. Id. 49. For an analysis of the current membership of the Court and their views on cameras, see p. 270, infra. 50. 531 U.S. 70 (2000). 51. 531 U.S. 98 (2000).

266

Volume 1, Issue 3


Let the Cameras Roll Another small but significant innovation took place in 2004: members of the Supreme Court bar could listen to oral arguments piped into the nearby lawyers’ lounge. It marked the first time that the live audio of an oral argument could be heard outside the four walls of the Court chamber.52 Argument transcripts were also made more informative and timely. In 2004, the Court decided to include in the transcripts the names of justices along with the questions they asked, “in the interest of accuracy and completeness.”53 Before the change, the word “question,” rather than the justice’s name, preceded each justices’ questions. Why had the names not been included? The explanation usually offered by the Court was that justices felt their questions were asked not on their own behalf but instead for the Court as a whole.54 The addition of this information has given birth to a new branch of Supreme Court research, enabling scholars and journalists to tally which justices asked the most, fewest, longest, or funniest questions. In 2006, the Court began releasing oral argument transcripts to the press and public within a few hours after they happened, instead of a week or so later, which was a great boon for the accuracy of reporting on fast-paced arguments.55 By later in the decade, however, the release of oral argument recordings slowed to a trickle. During the 2009-2010 term, the Court turned down all seven requests the news media had made for same-day release.56 By some accounts, the Court had grown increasingly uncomfortable about deciding which cases warranted this special treatment, and which did not. Then last fall, the Court announced a new policy that to the news media seemed like one step forward and one step back. All argument tapes would be released – but not until the Friday after they occurred.57 Since the high court only hears arguments on Mondays, Tuesdays, and Wednesdays, the new policy meant that none of the audio would be available for same-day news reports on the arguments. C-SPAN president Susan Swain said at the time, “While we applaud the Court’s new policy, which helps advance the cause of greater public access to the institution, we do regret that it comes at the expense of occasional same-day release of arguments in cases with heightened public interest.”58 52. Tony Mauro, The Chief and Us: Chief Justice William Rehnquist, the News Media, and the Need for Dialogue Between Judges and Journalists, 56 Syr. L. Rev. 407, 415 (2006). 53. Press Release, U.S. Sup. Ct., Oral Argument Transcripts (Sept. 28, 2004), http://www.supremecourt. gov/publicinfo/press/viewpressreleases.aspx?FileName=pr_09-28-04.html. The transcripts had previously included the names of questioning justices only sporadically, according to the whims of the private shorthand reporters making the transcription, and then consistently for a brief period from 1963 to 1965. See High court to name names, Associated Press, Sept. 30, 2004, available at http:// web1.nusd.k12.az.us/schools/nhs/gthomson.class/articles/judicial/su.ct.name.names.pdf; and James C. Phillips & Edward L. Carter, Source of Information or “Dog and Pony Show”?: Judicial Information Seeking During U.S. Supreme Court Oral Argument, 1963-1965 & 2004-2009, 50 Santa Clara L. Rev. 79, 103, 118, 170 (2010). 54. See Tony Mauro, Scorecard: When the justices asked questions, Nat’l L. J., July 21, 2010, http:// www.law.com/jsp/article.jsp?id=1202463754450. 55. Press Release, U.S. Sup. Ct., (Sept. 14, 2006), http://www.supremecourt.gov/publicinfo/press/viewpressreleases.aspx?FileName=pr_09-14-06.html. 56. See Tony Mauro, At the Supreme Court, the Sound of Silence, Times Seven, BLT: The Blog of the Legal Times, Apr. 16, 2010, http://legaltimes.typepad.com/blt/2010/04/at-the-supreme-court-the-soundof-silence-times-seven.html. 57. See Tony Mauro, Supreme Court Will Release Argument Audio on Delayed Basis, BLT: The Blog of the Legal Times, Sept. 28, 2010, http://legaltimes.typepad.com/blt/2010/09/supreme-court-will-releaseargument-audio-on-delayed-basis.html. 58. Id. Reynolds Courts & Media Law Journal

267


Let the Cameras Roll

The Camera-Shy Court

A

ll these changes have been viewed as welcomed improvements in public access to the Court, but they fall short of the biggest and most public-minded step the justices could take, namely allowing television and radio broadcast of Court proceedings on a par with the way other public institutions are covered. In fact, it sometimes seems that the incremental concessions are aimed in part at staving off pressure to take that larger step. Justice Samuel Alito Jr. implied as much when he was asked about cameras in the Court in a 2007 appearance at Pepperdine University. He rattled off the innovations in access to transcripts and audio, and asked why “that extra bit of information,” the video, was so important.59 But pressure in favor of cameras persisted, most loudly from Capitol Hill. Following the path forged by Congressman Kastenmeier years earlier, a new champion was Pennsylvania Sen. Arlen Specter. Specter has introduced several bills to require broadcast access to Supreme Court proceedings,60 and has cosponsored bills on the issue introduced by Iowa Sen. Chuck Grassley.61 Instead of making a straightforward argument in favor of the public’s right to see its highest court in action, Specter offered other justifications that did not seem destined to win support from the Court or from his fellow members of Congress. For years, Specter has had bones to pick with the Court, which he said did not show proper respect for Congress in its rulings. As Specter saw it, allowing broadcast of Court proceedings would “inform the American people about what is going on so that the American people can participate in a meaningful way as to whether the Court is functioning as a super-legislature--which it ought not to do, that being entrusted to the Congress and State legislatures, with the Court’s responsibility being to interpret the law.”62 Casting the legislation that way, Specter was not just making a good-government case in favor of sunlight at the Supreme Court, but rather using cameras as an accusatory spotlight. After switching parties in 2009 and losing a Democratic primary in 2010, Specter made cameras in the Supreme Court one of his final crusades. In a September 2010 interview, Specter rejected the notion that he viewed bringing cameras to the Court as a way of punishing it for misbehavior. “I am urging it for its positive effect,” he said. “The public doesn’t understand that the justices decided literally who lives, who dies … They decide all the cutting-edge questions.”63 Specter’s bill was approved by the Judiciary Committee, but did not reach the Senate floor for a vote.64 Sen. Dick Durbin (D-Ill.) said he would continue the fight for cameras in the Court after Specter’s departure.65 But for reasons I now turn to, the campaign seems unlikely to bear fruit soon.

59. Tony Mauro, Alito Reflects on His Role on the High Court, Legal Times, Aug. 9, 2007, http://www.law.com/ jsp/law/LawArticleFriendly.jsp?id=900005556690. 60. These bills were S. 1768, 109th Cong. (2005-06) (placed on Senate calendar); S. 344, 110th Cong. (2007-08); S. 446, 111th Cong. (2009-10) (placed on Senate calendar); and S. Res. 339, 111th Cong. (2009-10) (placed on Senate calendar). 61. Grassley’s bills have included S. 829, 109th Cong. (2005-06) (placed on Senate calendar); S. 352, 110th Cong. (2007-08) (placed on Senate calendar); S. 220, 111th Cong. (2009-10); S. 657, 111th Cong. (2009-10) (placed on Senate calendar); and S. 410, 112th Cong. (2011-12) (placed on Senate calendar, April 7, 2011). 62. 153 Cong. Rec. S1257 (daily ed. Jan. 29, 2007) http://www.gpo.gov/fdsys/pkg/CREC-2007-01-29/pdf/ CREC-2007-01-29-pt1-PgS1257-3.pdf. 63. Tony Mauro, Specter's Last Stand: Cameras at the high court, Nat’l L. J., Sept. 15, 2010, http://www.law.com/ jsp/nlj/PubArticleSCI.jsp?id=1202472058274. 64. See S. 446, 111th Cong. (2009-10), supra note 60. 65. Kenneth Jost, Cameras in the Courtroom, CQ Researcher, Jan. 14, 2011, at 43.

268

Volume 1, Issue 3


Let the Cameras Roll

Today’s Court and Cameras

T

he Roberts Court, now six years old, is in some ways the Court that Byron White predicted it would be back in 1993. Refreshed by four recent vacancies, the Court now has younger members who don’t remember a time without television.66 Most of them are battle-hardened when it comes to television, because of their experience with confirmation hearings that have become highly polarized and almost always contentious. That rite of passage may have left some of them wary of cameras and microphones, but that has not kept most of them from stepping out in the spotlight to an unprecedented degree. Perhaps taking a cue from their telegenic new chief justice, who runs the Court with a lighter hand than his predecessor William Rehnquist, the justices have been on television far more than their predecessors. Chief Justice Roberts himself made several televised appearances early in his tenure; Justice Ruth Bader Ginsburg turned up on the CBS Sunday Morning show;67 Justice John Paul Stevens spoke on ABC News about the death of President Gerald Ford;68 and Justice Stephen Breyer gamely appeared on an NPR quiz show (failing, ultimately, to give any correct answers).69 Breyer also made the media rounds70 when he had a new book to sell, as have both Thomas71 and Antonin Scalia.72 Thomas and Scalia, vocal opponents of allowing cameras in the Court, have held their noses and submitted to interviews on CBS News’ 60 Minutes.73 The justices have also consented to extensive interviews with C-SPAN74 and legal writing guru Bryan Garner.75 The justices’ motivation was clearly educational in these instances. With C-SPAN, the target was the general public – or at least that part of it that watches C-SPAN. The Garner tapes were aimed at Supreme Court advocates, with justices offering tips and admonitions about what they like to see or not see in the briefs and arguments submitted to them. Those are also the target audiences that might also benefit the most from the broadcast of oral arguments. “I find it rather bewildering that some of the same justices who have serious reservations about placing cameras in the courtroom have also thrust themselves into the public spotlight through their lectures, debates, and books,” wrote Boyce Martin Jr., a judge on the 66. The four most recently appointed justices are Chief Justice John Roberts (born 1955, appointed 2005); Associate Justice Samuel Alito (born 1950, appointed 2006); Associate Justice Sonia Sotomayor (born 1954, appointed 2009); and Associate Justice Elena Kagan (born 1960, appointed 2010). 67. Scott Conroy, Madame Justice (CBS News “Sunday Morning” television broadcast Feb. 11, 2009) (recapping interview by Mike Wallace), http://www.cbsnews.com/stories/2006/10/01/sunday/main2054138.shtml. 68. Jan Crawford Greenburg, Supreme Court Justice Stevens Remembers President Ford (ABC News “Nightline” television broadcast Jan. 2, 2007), http://abcnews.go.com/Nightline/story?id=2765753. 69. Wait Wait…Don’t Tell Me! (NPR radio broadcast Mar. 24, 2007), http://www.npr.org/templates/story/ story.php?storyId=9120759. 70. Fox News, Justice Stephen Breyer on “FNS [Fox News Sunday]” (“Fox News Sunday” television broadcast Dec. 12, 2010), http://video.foxnews.com/v/4456313/justice-stephen-breyer-on-fns/. 71. CBS News, Clarence Thomas: The Justice Nobody Knows (“60 Minutes” television broadcast Feb. 11, 2009), http://www.cbsnews.com/stories/2007/09/27/60minutes/main3305443.shtml. 72. CBS News, Justice Scalia On The Record (“60 Minutes” television broadcast Feb. 11, 2009), http://www.cbsnews.com/stories/2008/04/24/60minutes/main4040290.shtml. 73. See supra notes 71, 72. 74. Excerpts of these interviews are available at http://supremecourt.c-span.org/Video/JusticeOwnWords.aspx, and the full transcripts of these interviews are available in book form in The Supreme Court: A C-SPAN Book Featuring The Justices In Their Own Words (Brian Lamb, Susan Swain & Mark Farkas, eds., 2010). 75. Bryan Garner, LawProse.com, http://lawprose.org/interviews/supreme-court.php. Reynolds Courts & Media Law Journal

269


Let the Cameras Roll U.S. Court of Appeals for the Sixth Circuit, in an article that also asserted that “televising the Supreme Court’s oral arguments will not produce the disastrous results predicted by some frightened justices; rather, it will yield positive results. Most notably, it will increase the public’s knowledge of the appellate process.”76

The Arguments

Y

et the justices still resist.77 A topical breakdown may be another way to understand – and respond to – the justices’ concerns.

Exceptionalism As suggested in the beginning of this article, the root of almost every objection the justices have expressed about cameras access is the justices’ deeply held feeling that their Court is exceptional – unlike any other public institution. The Supreme Court is not like any other court, they say. It is also unlike the other two branches of government, both of which are led by officials who stand for election – as do many, if not most, state judges. As life-tenured justices, the theory goes, the members of the Supreme Court stand above and apart from the political fray. They are the most powerful, largely invisible, government officials in the nation, if not the world. When Justice Kennedy talks about the Court’s unique rhythm and grammar,78 he is really identifying the factors that color that cadence differently from other courts and branches: the Court’s vaunted independence from political influence, and its careful, thoughtful deliberations based on principle and precedent, not partisanship. “We teach, by having no cameras, that we are different,” Kennedy said on another occasion.79 When Chief Justice Roberts talks about the Court’s uniqueness in a global sense,80 he is alluding to its longstanding role as a closely watched, and often revered, beacon unlike any other court or institution in America. From that uniqueness, the justices conclude that the Supreme Court should remain immune from the glare of the broadcast media. But does that conclusion really follow from the Court’s exceptionalist view of itself? The Court’s uniqueness might explain why the justices want to keep cameras out, but not why they should be kept out. It could be argued, in fact, that justices’ unique independence makes the broadcast of their proceedings more justifiable, not less so than for other institutions. While cameras might, and probably do, distort the behavior of elected officials bent on pleasing their constituents, they should have little negative effect on contemplative, life-tenured judges who insist they are apolitical. And if the Supreme Court has worldwide impact, then why should its work not be televised? Using the Court’s global influence as an argument for invisibility seems contradictory, unless Roberts is suggesting that the Court’s stature would somehow shrink by becoming more visible. Political scientist Barbara Perry has made this very argument – that part of the Supreme Court’s authority lies in its invisibility – a variation on the old adage that familiarity breeds contempt. She wrote, “Its success in maintaining public respect is almost magical. To spoil the magic by exposing it to excess daylight might rob the nation and indeed the world of a stable and enduring emblem of the rule of law.”81 76. Boyce Martin Jr., Gee Whiz, the Sky Is Falling!, 106 Mich. Law Rev. First Impressions 1 (2007). 77. C-SPAN devotes an extensive Web page to excerpts of their statements over the years about the issue. See C-SPAN, Cameras in the Court, http://www.c-span.org/The-Courts/Cameras-in-The-Court/. 78. See supra note 3. 79. C-SPAN, Cameras in the Court, supra. 80. See supra note 4. 81. Barbara A. Perry, The Priestly Tribe: The Supreme Court’s Image in the American Mind 155 (1999).

270

Volume 1, Issue 3


Let the Cameras Roll One response to that wistful assertion is that a democratic institution whose stature depends on its invisibility is in trouble. But I would also argue that the Court’s influence would grow if people could only see what it does. Whenever the Supreme Court is under intense scrutiny—whether during the 1993 release of the Thurgood Marshall papers, or in the context of controversial decisions ranging from Snyder v. Phelps82 to Bush v. Gore83 – the Court usually emerges favorably in the eyes of the public. To the extent that the public learns about or understands how the Court does its work, its perception is that of an institution that strives to be fair and get it right, even if the result is unpopular. As Justice Stephen Breyer has often said, even though a large percentage of the public hated the outcome of Bush v. Gore, there was no “war in the streets …. It’s a history that’s tended to bring us together on balance.”84 At the recent conference where Roberts spoke about the Court’s unique status in the world, he also said he worried about the impact of cameras on the lawyers who argue at the Court, and the justices who are listening. “We unfortunately fall into grandstanding with a couple of hundred people in the courtroom,” Roberts said, and he voiced concern that Whenever the Supreme Court is justices would ask even more questions than they already do if cameras were permitted.85 under intense scrutiny...the Court Pointing to the often vacuous debates and usually emerges favorably in the speechifying that C-SPAN televises from the House of Representatives and the Senate, eyes of the public. Roberts added, “I would be interested to know which government institutions people think function better” after cameras arrived than before.86 That comment illuminates another exceptionalist impulse behind the Court’s resistance to cameras: the feeling that the Court is the last institution left in America that is unspoiled by the modern media culture, and for that reason alone, if not for others, it should remain that way. But isn’t Roberts also underestimating his colleagues’ ability to resist the temptation to play to the cameras? If they are truly independent and different, one would think that Supreme Court justices should be uniquely inattentive to the presence of cameras and should be able to carry on undisturbed. By insisting on a protective shield of invisibility around them, opponents of cameras at the Court may inadvertently be undermining the exceptionalist argument. If they, alone among Washington officialdom, need such a cocoon, then maybe the justices really are like all the rest of the politicians in Washington who bat their eyes for the cameras.

Functioning of the Court Furthermore, if the Court is truly unique, Roberts could well have argued that the Court might function better, not worse, under the scrutiny of the camera lens, in contrast to Congress.

82. --- U.S. ---, 131 S. Ct. 1207, 179 L. Ed. 2d 172 (U.S. 2010). 83. 531 U.S. 98 (2000). 84. CNN, Interview with Supreme Court Justice Stephen Breyer (“Larry King Live” television broadcast Sept. 15, 2010), transcript available at http://www.realclearpolitics.com/articles/2010/09/15/interview_with_supreme_court_justice_stephen_breyer_107190.html. 85. See supra note 4. 86. Id. Reynolds Courts & Media Law Journal

271


Let the Cameras Roll With no cameras watching, oral argument at the Supreme Court has gotten unruly, to say the least. At Roberts’ recent appearance, he allowed that he and his colleagues have “gone a little too far” at arguments, with too many questions and too many justices interrupting lawyers and each other.87 It is often difficult for an advocate to utter a single complete sentence of his or her own choosing before a justice intervenes. The intensity of oral argument at the Supreme Court is difficult to describe: you have to see it to believe it. Might not cameras calm, rather than exacerbate, that situation? In a 2007 law review article, practitioner Kenneth Flaxman, who has appeared before the high court, gingerly made the argument that televising Court proceedings could encourage better judicial behavior. A Justice who is successful at provoking laughter in the courtroom may find that his or her humor falls flat in a video snippet. Similarly, a Justice who declines to ask questions of counsel at oral argument, but who engages in whispered conversations with other justices, might change his or her behavior in light of its exposure on YouTube. Likewise, a Justice who makes a truly stupid comment may find that life tenure does not provide immunity from public ignominy. And a Justice who is well past his or her prime and no longer in touch with reality (and no, I’m not suggesting this is the case with any member of the Court) would have greater difficulty hiding his or her disability.88 That argument is unlikely to gain traction among nine self-confident justices who probably don’t think their behavior needs improving. But it at least raises the possibility that cameras could be a plus for the Court as well as for the public. In the end, however, empirical and anecdotal evidence suggests that the presence of cameras is unlikely to have much effect at all – positive or negative – on the principals in Supreme Court arguments. Consider the experience of Canada’s highest court. After debating the same concerns that worry its U.S. counterpart, the Supreme Court of Canada allowed cameras in 21 years ago, and none of the feared harms have materialized.89 The hearings are aired in their entirety on Canada’s version of C-SPAN, and in snippets on news programs. According to Canada’s chief justice, the presence of cameras has had little or no impact on the proceedings.90 “We are just oblivious to them. I don’t think I ever think about them in the course of a hearing,” Canadian Chief Justice Beverley McLachlin said at a judicial conference in the United States in 2010. Only once did she get the sense that a lawyer was grandstanding for the cameras, she said, and “I told him to sit down.”91

Other Objections On the previously mentioned C-SPAN page92, justices have raised other institutional and personal concerns about letting cameras in.

87. Id. 88. Kenneth N. Flaxman, Will It Make My Job Easier, or What’s in it for Me? 106 Mich. L. Rev. First Impressions 16 (2007). 89. See Tony Mauro, In Canada's Supreme Court, Cameras are No Big Deal, BLT: The Blog of the Legal Times, Aug. 31, 2010, http://legaltimes.typepad.com/blt/2010/08/in-canadas-supreme-court-cameras-are-no-big-deal.html. 90. Id. 91. Id. 92. See C-SPAN, Cameras in the Court, supra note 77.

272

Volume 1, Issue 3


Let the Cameras Roll

Protecting the Institution

S

everal have said they view themselves as temporary stewards of a great institution who have a duty, bluntly put, not to mess things up. “We’re going to be very careful before we do anything that might have an adverse impact,” Roberts has said more than once,93 and Breyer and Thomas have made the same point.94 If it ain’t broke, don’t fix it, in other words. That concern has as its starting point a view that broadcast access would spoil the Court – which is not necessarily a given, in light of the positive experiences in many other courts. Justice Scalia, once a proponent of cameras, has become an unstinting critic. “Not a chance, because we don’t want to become entertainment,” Scalia said in 2005. “I think there’s something sick about making entertainment out of other people’s legal problems. I don’t like it in the lower courts, and I particularly don’t like it in the Supreme Court.”95 Interestingly, on another occasion, Scalia said anyone who wants to see the Court in action should come to Washington to observe arguments in person. “I think it’s a good show myself,” he said,96 thereby acknowledging that the arguments are entertaining, even while pronouncing judgment that the general public should not be able to see it. Scalia has also suggested that airing Court proceedings would “mis-educate” or “misinform” the public, so should not be allowed.97 Chief Justice Roberts has made a similar point, even though he has said on occasion that allowing cameras in the Court would have educational value. “We don’t have oral arguments to show people, the public, how we function. We have them to learn about a particular case in a particular way that we think is important.”98 The same could be said about, say, a meeting of the Postal Regulatory Commission. Such a meeting is called to formulate postal policy, not to educate the citizenry, but that does not make the meeting any less public. These arguments by Scalia and Roberts come close to content-based or viewpoint-based discrimination, usually frowned upon in First Amendment law. It should not be for a government agency to bar the dissemination of public information because it is mainly for the use of its officials, or because of how entertaining or uninformative it might be when the media make use of it. Both Scalia and Ginsburg have also said they might take a different view of camera access if, as Ginsburg put it, “the control remains in the hands of the Court and … the coverage was gavel to gavel.”99 C-SPAN has long made a standing offer to broadcast oral argument video gavel to gavel, but it would not keep other media organizations from using shorter excerpts for their news programs. For government to prohibit that kind of excerpting would be a form of editorial control of the media that would likely be unacceptable under Miami Herald v. Tornillo,100 and possibly other precedents.

93. One instance was in remarks at the Ninth U.S. Circuit Court of Appeals’ annual conference, July 13, 2006. Id. 94. Id. 95. CNBC Interview, October 10, 2005. Id. 96. Id. 97. Quoted in Georgetown University’s Blue and Gray (Oct. 20, 2006). Id. 98. Remarks to Ninth Circuit Judicial Conference (July 2006), reported in Cong. Research Service, supra note 17, at 3. See also David Kravets, Chief Justice Says No to Televising Supreme Court, Associated Press, July 17, 2006, available at http://www.law.com/jsp/law/LawArticleFriendly. jsp?id=1152867928601. 99. Interview with Canadian Lawyers Weekly (Oct. 2000), quoted in C-SPAN, Cameras in the Court, supra note 77. 100. 418 U.S. 241 (1974). Reynolds Courts & Media Law Journal

273


Let the Cameras Roll

Personal Security

A

n increasing concern of several justices, rarely stated but deeply felt, relates to their personal security. As Justice Thomas put it in 2007,

The primary point for me has been that regular appearances on TV would mean significant changes in the way my colleagues conduct their lives. My anonymity is already gone. It’s already affected the way I conduct my own life. But for some of my colleagues, they’ve not yet lost that anonymity. I think security is on the foremost of all of our minds now since 9/11. I think they’ll certainly become even more significant with more exposure.101

The way Thomas articulated that concern was revealing. He started by speaking about the loss of anonymity and how that impacts justices’ lives. Thomas, more than most justices, is often recognized in everyday settings. Other justices revel in telling stories about how tourists, even in front of the In this Internet age, the Court Court, have no idea that a justice is needs to reassess its security needs Supreme in their midst. So Thomas was speaking on and not depend on anonymity as behalf of his colleagues who still enjoy their privacy. But then he put the gloss of security the way to keep justices safe. on top of the desire for anonymity. Security concerns are real. But public service, especially at the highest levels, has always entailed a loss of privacy. Why do Supreme Court justices deserve more privacy than, say, Cabinet members or leaders of Congress? When Justice David Souter was mugged near his D.C. residence in 2004, many were surprised to learn that justices have minimal or no security protection when they are in the capital. Court police told me that justices like it that way, viewing their anonymity as their first line of defense.102 But in this Internet age, the Court needs to reassess its security needs and not depend on anonymity as the way to keep justices safe. It is ridiculously easy to fetch detailed information, including photographs, about famous and not-so-famous people from any computer. With or without broadcast coverage of the Court, the anonymity Thomas yearned for is already gone. As Judge Martin put it, because of readily available personal information, “while safety is a legitimate concern, televising of oral arguments presents no new security risks.”103

Concern for Other Courts

F

inally, Justice Breyer has often raised a somewhat unexpected concern: that because of the pre-eminence of the Supreme Court in the federal judicial system, “if it was in our court, it would be in every court in the country, criminal cases included.”104 On many matters, other courts at both the federal and state level do in fact take their cue from the U.S. Supreme Court. But broadcast access does not appear to be one of them. State courts, as previously discussed, have not waited for the Supreme Court to experiment – and change – in this area. 101. Testimony before the House Appropriations Subcommittee (Mar. 8, 2007), quoted in C-SPAN, Cameras in the Court, supra. 102. Tony Mauro, Court Revisits Security After Souter Assault; The question of whether justices need more protection is once again confronting officials at the Supreme Court, Legal Times, May 10, 2004. 103. Martin, supra note 76, at 4. 104. Interview on C-SPAN's Q & A (Dec. 4, 2005), quoted in C-SPAN, Cameras in the Court, supra note 77.

274

Volume 1, Issue 3


Let the Cameras Roll

The New Federal Experiment

I

n September 2010, the Judicial Conference, which sets policy for the lower federal courts, showed it too was not waiting for the Supreme Court to act. It voted to undertake another three-year experiment with camera access that echoes the pilot project of nearly 20 years earlier. Spurred by pressure from Congress and possibly also within the judiciary itself, the conference decided the time had come to take another look.105 Under rules promulgated by a conference committee and announced in June 2011, it may be a limited experiment: broadcast coverage will be allowed only in civil proceedings in which both parties agree, in selected district courts. No live broadcasts will be allowed, and judges will retain control of the cameras.106 Some media advocates feared that under such rules, few proceedings will actually be aired. But others viewed the restrictions as understandable, given the federal courts’ long resistance to cameras. “The federal courts are never going to go from a crawl to a flat-out run” on the issue, said media lawyer Thomas Burke.107

Conclusion

W

hat comes next in the long and spectacularly unsuccessful campaign for cameras in the Supreme Court? We wait, yet again, for the results of another three-year experiment with broadcast of a limited category of civil proceedings in lower federal courts. In his June 25, 2011 appearance before the Fourth Circuit judicial conference, when asked about the cameras issue, Chief Justice Roberts said, “I’ll be very interested to see what the results of the pilot program look like. I’m sure we will take that into account.”108 He reminded his audience of a recurring architectural motif at the Supreme Court: depictions of tortoises at the base of outdoor lamps and elsewhere. “That’s to indicate we move slowly but surely on a stable basis.”109 Those who argue for cameras in the Supreme Court are not, however, asking for sudden, destabilizing change. The justices have had more than 60 years to contemplate the impact of cameras on their cherished institution – longer than that, if one includes the era of newsreels. During that period, the Court has become a powerful force in American society – more muscular than ever before, in fact, on issues of life and death, privacy and new technology, commerce and communications. It is unique and exceptional, but not in ways that should make it invisible. The Supreme Court is far from the fragile flower that its protectors make it out to be by shielding it from a news medium that is no longer new or especially threatening. Courts throughout the world have allowed broadcast coverage for years or decades and survived. The Court’s newest justices seem to know this, and may be able to work on reducing their colleagues’ timidity. In 2009, after seeing the Court’s oral arguments from the perspective of U.S. solicitor general, Justice Kagan said this:

105. Tony Mauro, Cameras, Take 2: Judicial Conference Sets New Experiment With TV Access, BLT: The Blog of the Legal Times, Sept. 14, 2010, http://legaltimes.typepad.com/blt/2010/09/cameras-take2-judicial-conference-sets-new-experiment-with-tv-access-.html. 106. Tony Mauro, Restrictive Rules Announced for Federal Courts Camera Experiment, BLT: The Blog of the Legal Times, June 8, 2011, http://legaltimes.typepad.com/blt/2011/06/restrictive-rules-announcedfor-federal-courts-camera-experiment.html. 107. Id. 108. C-Span Video Library: A Conversation with Chief Justice Roberts, supra note 4. 109. Id. Reynolds Courts & Media Law Journal

275


Let the Cameras Roll What I was struck by is that if cameras were in the courtroom, the American public would see an extraordinary event. This court, I think, is so smart and so prepared and so engaged, and everybody who gets up there at the podium is, you know, the toughest questions, the most challenging questions are thrown at that person. And there is a debate of really extraordinarily intellectual adultness and richness -- adeptness and richness. When C-SPAN first came on, they put cameras in legislative chambers. And it was clear that nobody was there. I think if you put cameras in the courtroom, people would say, “wow.” They would see their government working at a really high level. That is one argument for doing it.110

For her part, Justice Sonia Sotomayor is no stranger to cameras in the courtroom. She saw them in action as a judge on the U.S. Court of Appeals for the Second Circuit. (After the experiment with cameras in 1994, appeals courts were allowed to set their own rules on the issue; the 2nd and the 9th circuits voted in favor.) In 2009, she said, “I have had positive experiences with cameras. When I have been asked to join experiments of using cameras in the courtroom, I have participated. I have volunteered.”111 In their brief tenure on the Court, both Sotomayor and Kagan have shown themselves to be bold in stating their views. Perhaps they will be able to withstand the culture of invisibility that seems to envelop new justices and turn supporters of camera access into opponents. If they work on their colleagues inside the Court, at the same time the three-year experiment with civil proceedings at the district court level shows positive results, then maybe, just maybe, in three years or so, the Supreme Court will realize that the time has arrived to allow cameras in. Even a tortoise crosses the finish line eventually.

110. Appearance at a Ninth Circuit Judicial Conference (July 23, 2009), quoted in C-SPAN, Cameras in the Court, supra note 77. 111. Confirmation hearing (July 14, 2009), quoted in id.

276

Volume 1, Issue 3


Eyeing the Supreme Court’s Challenge:

A Proposal to Use Eye Tracking to Determine the Effects of Television Courtroom Broadcasting Paul Lambert1

T

he U.S. Supreme Court’s basic stance towards cameras in the courtroom is well-established. After initially holding that courts may ban cameras2 and that cameras could be so disruptive as to require reversal of a murder conviction on constitutional grounds,3 the Court later held that cameras can be used in courtrooms as long as they were unobtrusive.4 This has led a majority of states to allow or experiment with broadcasting of at least some court proceedings,5 and helped induce the federal courts to undertake two experiments to examine the issue.6 The Court has also, on several occasions, discussed the issues and con-

1. The author would like to thank Siobhán for her kindness and patience. 2. Estes v. Texas, 381 U.S. 532 (1965), reh’g denied, 382 U.S. 875 (1965). 3. Sheppard v. Maxwell, 384 U.S. 333 (1966). Most of the disruptive behavior of the print, radio and television reporters cited by the Court in Sheppard actually occurred outside the courtroom. Id. at 343-44. 4. Chandler v. Florida, 449 U.S. 560 (1981). Note that this is different from the Court’s stance towards cameras in its own chamber. See Michael McGough, Justices willing to be heard but still unwilling to be seen in court, L.A. Times (Opinion L.A. blog), Oct. 6, 2010, http://opinion.latimes.com/opinionla/2010/10/justices-willing-to-be-heard-but-still-unwilling-to-be-seen-in-court.html. 5. See Radio Television Digital News Ass’n, Cameras in the Court: A State-By-State Guide (2011), available at http://www.rtnda.org/pages/media_items/cameras-in-the-court-a-state-by-stateguide55.php. 6. Congressional pressure has also played a role, with a number of bills proposed since 1997 regarding federal courtroom broadcasting. See H.R. 1280, 105th Cong (1997-98) (would have applied to all federal courts); H.R. 1751, § 22, 109th Cong. (2005-06) (this section, which would have applied to district and circuit courts, was in the version of this bill that passed the House, but not in the version that passed the Senate); H.R. 2422, 109th Cong. (2005-06) (all federal courts); H.R. 4380, 109th Cong. (2005-06) (Supreme Court); S. 829, 109th Cong. (2005-06) (all federal courts; placed on Senate calendar); S. 1768, 109th Cong. (2005-06) (Supreme Court; placed on Senate calendar); H.R. 1299, 110th Cong. (2007-08) (Supreme Court); H.R. 2128, 110th Cong. (2007-08) (all federal courts); S. 344, 110th Cong. (2007-08) (Supreme Court); S. 352, 110th Cong. (2007-2008) (all federal courts; placed on Senate calendar), H.R. 429, 111th Cong. (2009-10) (Supreme Court); H.R. 3054, 111th Cong. (2009-10) (all federal courts); S. 446, 111th Cong. (2009-10) (Supreme Court; placed on Senate calendar); S. 657, 111th Cong. (2009-10) Reynolds Courts & Media Law Journal

277


Eyeing the Supreme Court’s Challenge cerns which arise in relation to television courtroom broadcasting.7 In these discussions, the Court has noted that there are substantial research gaps on the effects of courtroom broadcasting, and has challenged social science and empirical researchers and others to address these research gaps.8 A possible solution to one of these research gaps — the in-court distraction effects caused by the presence of television cameras and camera operators — may be found by the use of eye-tracking technology, which studies the position of the eye and the direction of eye focus, and can record the data for future playback and analysis. It has increasingly been used in psychology and eyewitness identification research, and the effects on jurors of cameras and camera perspective bias in recorded police interviews and confessions. But it has not yet been used to study the effects of courtroom cameras on the behavior of participants in courtroom proceedings. Eye tracking provides a direct measure of eye focus,9 and permits testing and direct observation of eye fixation, focus and attention.10 Eye tracking research also has the advantage that it tracks and records exactly what people see,11 overcoming the limits of opinion reports and self-reports. “[E]ye movements are a direct indicator of overt attention,” and provide “a highly direct measure of visual attention, eye systems also allow continuous measurement of eye movements.”12 Eye tracking could be the future of television courtroom broadcasting distraction (and attraction) effects research. While modern eye-tracking equipment is increasingly unobtrusive,13 this article does not propose using such equipment in actual trial, at least at this stage. Instead, by demonstrating the use of eye-tracking technology in a courtroom setting, this article will serve as a “proof of concept” to propose a method which can be used in mock trials and other simulated trial proceedings to address some of the research gaps pointed out by the Supreme Court in its rulings on courtroom cameras. The goal is to show that eye-tracking technol(all federal courts; placed on Senate calendar); S. Res. 339, 111th Cong. (2009-10) (Supreme Court; placed on Senate calendar); S. 410, 112th Cong. (2011-12) (all federal courts; placed on Senate calendar, April 7, 2011). 7. These discussions, explained in detail infra, were in Estes; Chandler; and, most recently, in Hollingsworth v. Perry, 558 U.S. ___, 130 S. Ct. 705, 175 L. Ed. 2d 878 (2010) (barring broadcast of appellate argument of challenge to California gay marriage ban initiative). 8. Too often, researchers assume that an effect, or the lack of an effect, is the same across all forms of camera use in courtrooms. This is not necessarily true, and researchers should identify a particular effect to be examined in the context of a particular form of television courtroom broadcasting. Thus a definition of “courtroom broadcasting” should be the starting point for any effects research. This article focuses on television courtroom broadcasting through use of television cameras in the courtroom to capture sound and images of courtroom proceedings for live, contemporaneous (“push”) television broadcast to the general public. This definition excludes relayed or closed circuit television courtroom broadcasting. It also excludes radio, webcasting via the Internet, audio and video recordings, still photography, and audio-visual recording of courtroom proceedings for archival purposes. It also excludes broadcasts from locations other than the courtroom, e.g., the jury room and other courthouse areas. 9. Thomas Armstrong & Bunmi O. Olatunji, What They See Is What You Get: Eye Tracking of Attention in the Anxiety Disorders, Psych. Sci. Agenda (American Psychological Society, March 2009), available at http:www.apa.org/science/about/psa/2009/03/science-briefs.aspx. 10. Lezlee J. Ware, Monitoring Visual Attention in Videotaped Interrogations: An Investigation of the Camera Perspective Bias (2006) (M.S. thesis, Ohio University), at 11, available at http://etd.ohiolink.edu/ send-pdf.cgi/Ware%20Lezlee%20J.pdf?ohiou1162582536. 11. See, e.g., Perception Research Services International, Inc., PRS Eye-Tracking, http://www. prsresearch.com/prs-tools/. 12. Id. 13. See p. 292, infra for a discussion of modern eye-tracking equipment.

278

Volume 1, Issue 3


Eyeing the Supreme Court’s Challenge ogy can be used to examine the effects, if any, of television courtroom broadcasting cameras (and operators) on witnesses, jurors, and other courtroom participants.

The Supreme Court’s Challenge

I

n its rulings regarding cameras in courtrooms, the Supreme Court has repeatedly lamented the lack of scientific, quantifiable research into the effects that cameras in courtrooms have on courtroom proceedings. In the absence of such evidence, the justices have often made presumptions – without proof – in their rulings on the issue. This paper attempts to present a viable method of researching the effects of television courtroom broadcasting, and addressing the “challenge” posed by the Court in its various decisions on the issue by providing the empirical data that the Court seeks.

Estes v. Texas The Supreme Court’s majority decision in Estes v. Texas,14 which held that television courtroom broadcasting infringed the defendant’s right to a fair trial15 and effectively barred cameras from American courts for decades, set out many of the areas regarding courtroom television broadcasting that should be addressed by a sustained body of empirical research on its effects. Justice Clarke’s majority opinion recognized the lack of research on the effects of courtroom broadcasting. It is true that our empirical knowledge of its full effect on the public, the jury or the participants in a trial, including the judge, witnesses and lawyers, is limited. However, the nub of the question is not its newness but, as Mr. Justice Douglas says, “the insidious influences which it puts to work in the administration of justice.”16

Clarke said that “it is practically impossible to assess the effect of television on jury attentiveness.”17 Nevertheless, Clarke’s majority concluded that the broadcasting on a trial would inevitably make jurors uncomfortable. It is the awareness of the fact of telecasting that is felt by the juror throughout the trial. We are all self-conscious and uneasy when being televised. Human nature being what it is, not only will a juror’s eyes be fixed on the camera, but also his mind will be preoccupied with the telecasting rather than with the testimony.18

The majority similarly concluded that “[t]he impact upon a witness of the knowledge that he is being viewed by a vast audience is simply incalculable.”19 Again, this was based on the Court’s intuition, rather than empirical research. “There is little wonder that the defendant cannot ‘prove’ the existence of such factors. Yet we all know from experience that they exist.”20 As the ruling continues, the Court goes on to presume – also without any empirical evidence – the effects that courtroom broadcasting has on potential witnesses, judges, attorneys, and criminal defendants.

14. Estes v. Texas, 381 U.S. 532 (1965). 15. Id. at 535. 16. Id. at 541 (quoting William O. Douglas, The Public Trial and the Free Press, 33 Rocky Mt. L. Rev. 1, 9 (1960)). 17. Id. at 546. 18. Id. 19. Id. at 547. 20. Id. Reynolds Courts & Media Law Journal

279


Eyeing the Supreme Court’s Challenge [A]t its worst, television is capable of distorting the trial process so as to deprive it of fundamental fairness. Cables, klieg lights, interviews with the principal participants, commentary on their performances, “commercials” at frequent intervals, special wearing apparel and makeup for the trial participants – certainly such things would not conduce to the sound administration of justice by any acceptable standard.21

In making these presumptions, the majority opinion rejected Texas’ arguments that the defendant had not established any “isolatable prejudice,”22 and that “psychological considerations are for psychologists, not courts, because they are purely hypothetical.”23 The majority cited two sources for its assertions regarding the impact of media on court proceedings and participants. The first was the published transcript of a panel discussion at National Civil Liberties Clearing House annual conferencein 1964,24 which was cited in the amicus brief submitted in Estes by the American Civil Liberties Union and Texas Civil Liberties Union, which argued that the broadcasting resulted in an unfair trial for Estes.25 In the discussion at the civil liberties conference, Georgetown University Associate Dean A. Kenneth Pye – whose statement the Estes opinion seems to be referencing26 – expressed support for some restrictions on media coverage of the courts. I favor the maximum freedom of the press which is consistent with the maintenance of a fair and rational system for the administration of justice. However, I do not think that justice can be administered properly if there is (1) pre-trial publicity to the extent that the community is saturated with what the press thinks will be proved at trial; (2) inadmissible inflammatory evidence highlighted in the media either before or during a trial; (3) publication of views of rival counsel on the merits of the case, the fairness of the proceedings, or their intended trial tactics; or (4) telecasting the criminal trials.27

Pye advocated stricter enforcement of Canon 20 of the A.B.A. Canon of Professional Ethics, which stated that “newspaper publications by a lawyer as to pending or anticipated litigation may interfere with a fair trial in the courts and otherwise prejudice the due administration of justice,” and are “generally … to be condemned.”28 But Pye did not cite any scientific evidence for his opinion, and even conceded that “some of the objections [to live televised proceedings] are of doubtful merit.”29 One of these, he said, was the idea that cameras would be disruptive to court proceedings. “Modern production techniques,” he said, “can avoid disruption of the proceedings.”30 21. Id. at 588. 22. Id. at 542. 23. Id. at 541. 24. Id. at 549 (citing Edward Snyder, The Lessons of Dallas-Threats to Fair Trial and Free Press, 77 Civ. Lib. Bull. 11 (Rpt. of 16th Annual Nat’l Civil Liberties Clearing House Conf. (March 19-20, 1964)). Note that the majority opinion, like the amicus brief which apparently brought the article to the Court’s attention, attributes the entire article to A. Kenneth Pye, one of the panelists. 25. Brief of the American Civil Liberties Union and the Texas Civil Liberties Union as amici curiae, Estes v. Texas, 381 U.S. 532 (1965) (No. 256), 1965 WL 115508, at *8, 12, 15 (citing Synder, supra note 24). 26. As noted supra, the Estes majority opinion attributes the entire article, consisting of a transcript of the full panel discussion, to Pye. Estes at 549. 27. Synder, supra note 24, at 18. 28. A.B.A. Canons of Prof. Ethics, Canon 20 (1963). The Canons, including Canon 20, dated from 1908. See A.B.A. Comm. on Code of Prof. Ethics, Final Report (1908), available at http://www.americanbar. org/content/dam/aba/migrated/cpr/1908_code.authcheckdam.pdf. They were replaced in 1970 by the ABA Model Code of Professional Responsibility. 29. Synder, supra note 24, at 21. 30. Id.

280

Volume 1, Issue 3


Eyeing the Supreme Court’s Challenge The other panelists split on the issue. Like Pye, though, neither cited any scientific evidence for their positions.31 Melvin L. Wulf, legal director of the American Civil Liberties Union, said that “I believe that our national interest in the liberty of the person can be served only by prohibiting the disclosure or publication of any information bearing on a criminal charge, except for an announcement of the formal charge and the minimum data necessary to identify the accused.”32 William B. Monroe, Jr., director of news for NBC in Washington, and former president of the Radio and Television News Directors Association,33 urged cooperation between the bar and the media in resolving free press-fair trial issues.34 He added that “Canon 35 is wrong in taking the sweeping view that nothing that happens in any courtroom – no kind of case, no phase of a case – is suitable for any kind of radio or television coverage.”35 Let me say quickly that television has sinned more than once in terms of glaring lights and obtrusive equipment in courtrooms and hearing-rooms. We have often done things the easy way, damaged our own case and provided some justification for the cry of circus. But we can accomplish the same coverage – and have done so on occasion – so unobtrusively that, inside the official chamber involved, television is absolutely invisible and nothing but normal lights is [sic] used.36

The second authority cited in Estes was what the majority described as the collective sentiment against courtroom broadcasting expressed in the Federal Rules of Criminal Procedure, and state court rules barring such broadcasting. The State would dispose of all these observations with the simple statement that they are for psychologists because they are purely hypothetical. But we cannot afford the luxury of saying that, because these factors are difficult of ascertainment in particular cases, they must be ignored. Nor are they “purely hypothetical.” They are no more hypothetical than were the considerations deemed controlled in Tumey, Murchison, Rideau and Turner.37 They are real enough to have convinced the Judicial Con 31. The issue was raised during the question and answer portion of the session. Professor Roy Fairfield of Ohio University’s Department of Government asserted that everyone was assuming certain behavior, and asked why the American Bar Association should be opposed to a study of juries. Dean Pye replied, “There have been attempts at the University of Chicago, involving questionnaires to jurors. But one of the ABA’s Canons of Ethics [ABA model Code of Prof’l Responsibility, Canon 23 (1963), as interpreted by ABA Comm. on Prof’l Ethics & Grievances, Formal Op. 109 (1934)] says a lawyer shouldn’t interrogate jurors after the trial. There is a contempt case pending now on this. If you can’t ask questions, you have to have a mock trial situation, and there is considerable doubt that this is accurate. The ABA and the bar in general don’t want to experiment because they feel that if they pull their fingers out of the dike, the torrent will follow. Id. at 23. 32. Id. at 12. Wulf was careful to note that he was speaking for himself, not the ACLU. But as noted in note 25, supra, the ACLU filed an amicus brief arguing against the broadcast in Estes. 33. See Douglas Martin, Bill Monroe, ‘Meet the Press’ Host, Dies at 90, N.Y. Times, Feb. 17, 2011, http:// www.nytimes.com/2011/02/18/business/media/18monroe.html. Monroe was president of the RTNDA in 1961. 34. Synder, supra note 24, at 17. 35. Id. (emphasis in original). 36. Id. (emphasis in original). For more on Monroe’s views on cameras in the courtroom, see William B. Monroe, Jr., The Case for Television in the Courtroom, 42 Notre Dame L. 920 (1966-67), reprinted in 21 Fed. Comm. B.J. 48 (1967). 37. These cases are: Tumey v. Ohio, 273 U.S. 510 (1927) (reversing Prohibition conviction in trial presided over by village mayor); In re Murchison, 349 U.S. 133 (1955) (reversing contempt conviction presided over by same judge before whom the original testimony was given); Rideau v. Louisiana, 373 U.S. 723 (1963) (reversing murder conviction where defendant was denied change of venue after local television broadcast of defendant’s confession); Turner v. Louisiana, 379 U.S. 466 (1965) (reReynolds Courts & Media Law Journal

281


Eyeing the Supreme Court’s Challenge ference of the United States, this Court and the Congress that television should be barred in federal trials by the Federal Rules of Criminal Procedure; in addition they have persuaded all but two of our States to prohibit television in the courtroom.38 They are effects that may, and in some combination almost certainly will, exist in any case in which television is injected into the trial process.39

Justice Harlan took a similar tack in his concurrence, citing the American Bar Association’s Judicial Canon 35, which barred courtroom broadcasts, for the proposition that cameras can distort the judicial process.40 To be sure, such distortions may produce no telltale signs, but in a highly publicized trial the danger of their presence is substantial, and their effects may be far more pervasive and deleterious than the physical disruptions which all concede would vitiate a conviction.41

Despite the paucity of empirical evidence, in his own concurrence Chief Justice Warren, joined by Justices Douglas and Goldberg, emphasized that our condemnation of televised criminal trials is not based on generalities or abstract fears. The record in this case presents a vivid illustration of the inherent prejudice of televised criminal trials and supports our conclusion that this is the appropriate time to make a definitive appraisal of television in the courtroom.42

Warren went on to state that “[i]t is common knowledge that television . . . can . . . work profound changes in the behavior of the people it focuses on.”43 In support of this principle, Warren refers to an A.B.A. Journal article titled, Should Canon 35 be Amended?, which cited several examples of how people react when they know they are on television.44 He also refers to a New York Times article on the Colorado Supreme Court’s decision allowing broadcasting of trials in that state,45 in which the article’s author asserted that even experienced show business performers can be affected by the presence of cameras, and that this “psychological and emotional burden must not be placed on a layman whose testimony may have a bearing on whether, in a murder trial, another human being is to live or die.”46 Warren also cited two other New York Times articles: a New York Times Magazine article advocating television coverage of proceedings of the U.S. Senate, which speculated that such coverage may change Senators’ behavior;47 and another New York Times story noting versing murder conviction where deputy sheriffs who gave key testimony had charge of and socialized with jury during trial). 38. At the time, only Texas and Colorado allowed television cameras in their courtrooms. Bernard Schwartz, The Unpublished Decisions of the Warren Court 191 (1985). 39. Estes v. Texas, 381 U.S. 532, 550 (1965). 40. Id. at 599 (Harland, J., concurring). Justice Harland also discussed then-recent efforts to re-evaluate the rule, which did not result in any changes. Id. 41. Id. at 592 (Harlan J., concurring). 42. Id. at 552 (Warren, C.J., concurring). Based on this reasoning, Warren concluded that “it violates the Sixth Amendment for federal courts and the Fourteenth Amendment for state courts to allow criminal trials to be televised to the public at large.”Id. at 565 (Warren, C.J., concurring). 43. Id. at 569, n.24 (Warren, C.J., concurring) (quoting Kenneth B. Keating, Not ‘Bonanza,’ Not ‘Peyton Place,’ But the U.S. Senate!, N.Y. Times Mag., April 25, 1965, at 67). 44. Id., n.24 (Warren, C.J., concurring) (citing Richard P. Tinkham, Should Canon 35 be Amended? A Question of Proper Judicial Administration, 42 A.B.A. J. 843, 845 (1956)). 45. See In re Hearings Concerning Canon 35 of the Canons of Judicial Ethics, 132 Colo. 591, 296 P.2d 465 (Colo. 1956). 46. Estes, at 569 (Warren, C.J., concurring) (quoting Jack Gould Warren, TV's Day in Court: Colorado’s Ruling to Admit Cameras Raises Specter of “Push Button” Law, N.Y. Times, March 11, 1956, at sec. X, p. 11). 47. Id. In the article, author and former U.S. Senator Kenneth B. Keating observed that “[the] fact is that

282

Volume 1, Issue 3


Eyeing the Supreme Court’s Challenge that at a videotaped stockholders meeting, “[s]ome stockholders seemed very much aware that they were on camera.”48 While none of Warren’s sources involve empirical research, he goes on to assert that The present record provides ample support for scholars who have claimed that awareness that a trial is being televised to a vast, but unseen audience, is bound to increase nervousness and tension, cause an increased concern about appearances, and bring to the surface latent opportunism that the traditional dignity of the courtroom would discourage. Whether they do so consciously or subconsciously, all trial participants act differently in the presence of television cameras. And, even if all participants make a conscientious and studied effort to be unaffected by the presence of the television, this effort in itself prevents them from giving their full attention to their proper functions at trial. Thus, the evil of televised trials, as demonstrated by this case, lies not in the noise and appearance of the cameras, but in the trial participants’ awareness that they are being televised. To the extent that television has such an inevitable impact it undercuts the reliability of the trial process.49

The lead dissenting opinion, by Justice Stewart for himself and Justices Black, Brennan, and White, hints that the majority’s conclusion that cameras are disruptive is not based on practical experience, either in scientific research or in the specific case before the court. We deal here with matters subject to continuous and unforeseeable change – the techniques of public communication. In an area where all the variables may be modified tomorrow, I cannot at this time rest my determination on hypothetical possibilities not present in the record of this case. There is no claim here based upon any right guaranteed by the First Amendment. But it is important to remember that we move in an area touching the realm of free communication, and for that reason, if for no other, I would be wary of imposing any per se rule which, in the light of future technology, might serve to stifle or abridge true First Amendment rights.50

Even the dissenters state that “[i]t is obvious that the introduction of television and news cameras into a criminal trial invites many serious constitutional hazards. The very presence of photographers and television cameramen plying their trade in a courtroom might be so completely and thoroughly disruptive and distracting as to make a fair trial impossible.”51 But, the dissenters pointed out, “[t]he plain fact of the matter … is that none of these things happened or could have happened in this case.”52 I cannot say at this time that it is impossible to have a constitutional trial whenever any part of the proceedings is televised or recorded on television film. I cannot now hold that the Constitution absolutely bars television cameras from every criminal courtroom, even if they have no impact upon the jury, no effect upon any witness, and no influence upon the conduct of the judge.53

Justice White, in his separate dissent, specifically points out the lack of research on the effects of television broadcasting on court proceedings:

television, alone among the mass media, can in itself work profound changes in the behavior of the people it focuses on. No one can predict with certainty whether television would indeed prove the spur to improved performance in the Senate or whether it would tempt individual Senators to use the medium for their own pet purposes” Keating, supra note 43, at 72. 48. Estes, at 569 n. 24 (Warren, C.J., concurring) (quoting Richard Phalon, Dip in Earnings Reported By [Columbia] Broadcasting System, N.Y. Times, April 22, 1965, at 43, col. 3). 49. Estes, at 569-70 (Warren, C.J., concurring) (citation omitted). 50. Id. at 603-04 (Stewart, J., dissenting). 51. Id. at 611-12 (Stewart, J., dissenting). 52. Id. at 613 (Stewart, J., dissenting). 53. Id. at 615 (Stewart, J., dissenting). Reynolds Courts & Media Law Journal

283


Eyeing the Supreme Court’s Challenge In my view, the currently available materials assessing the effect of cameras in the courtroom are too sparse and fragmentary to constitute the basis for a constitutional judgment permanently barring any and all forms of television coverage. As was said in another context, “we know too little of the actual impact . . . to reach a conclusion on the bare bones of the . . . evidence before us.” It may well be, however, that as further experience and informed judgment do become available, the use of cameras in the courtroom, as in this trial, will prove to pose such a serious hazard to a defendant’s rights that a violation of the Fourteenth Amendment will be found without a showing on the record of specific demonstrable prejudice to the defendant.

The opinion of the Court in effect precludes further opportunity for intelligent assessment of the probable hazards imposed by the use of cameras at criminal trials. Serious threats to constitutional rights in some instances justify a prophylactic rule dispensing with the necessity of showing specific prejudice in a particular case. But these are instances in which there has been ample experience on which to base an informed judgment. Here, although our experience is inadequate and our judgment correspondingly infirm, the Court discourages further meaningful study of the use of television at criminal trials. Accordingly, I dissent.54 One year later, the Court reversed the denial of a habeas corpus petition by Sam Sheppard, whose murder trial was conducted in what the Court described as a “carnival atmosphere” of saturation media coverage.55 “Since the state trial judge did not fulfill his duty to protect Sheppard from the inherently prejudicial publicity which saturated the community and to control disruptive influences in the courtroom,” the Court concluded, “we must reverse the denial of the habeas petition.”56 The Court’s decision focused on the media excesses during Sheppard’s trial, and the trial judge’s failure to control the media. In light of such evident fair trial violations, the majority did not discuss the availability or need for empirical research into the effects of media coverage on trials.

Chandler v. Florida The Court’s decision 16 years later in Chandler v. Florida was more permissive towards courtroom broadcasting.57 In upholding a Florida court’s decision to allow the televised broadcasting of a criminal conspiracy case, the Court backed away from the “prohibition” on broadcasting of trials of the majority in Estes, and found that the concerns in expressed in Estes were “‘less substantial factors’ in 1981.”58 The Court in Chandler did not lift the “ban” to permit unlimited courtroom broadcasting. Rather, the Chandler Court said that the states could experiment with cameras.59 In reaching this result, the Court said that it was aided by various amicus briefs submitted by groups arguing both for and against courts’ experimentation with television broadcasting.60 These briefs, as well as those from the parties, presented the Court with contemporary study results on the results of the broadcast of court proceedings. While the Court seemed intrigued by the results of these studies, the majority opinion added that more study was still necessary.

54. Id. at 616 (White, J., dissenting) (quoting Cox v. Louisiana, 379 U.S. 559, 583 [Black, J., dissenting in one of the consolidated cases and concurring in the other]). 55. Sheppard v. Maxwell, 384 U.S. 333, 355 (1966). 56. Id. at 363. 57. 449 U.S. 560 (1981). 58. Alex Kozinski & Robert Johnson, Of Cameras and Courtrooms, 20 Fordham Intell. Prop. Media & Ent. L.J. 1107, 1110 (2010) (quoting Chandler at 576). 59. Chandler at 573-74. 60. Id. at 575-76.

284

Volume 1, Issue 3


Eyeing the Supreme Court’s Challenge Considerable attention is devoted by the parties to experiments and surveys dealing with the impact of electronic coverage on the participants in a trial other than the defendant himself. … While the data thus far assembled are cause for some optimism about the ability of states to minimize the problems that potentially inhere in electronic coverage of trials, even the Florida Supreme Court conceded the data were “limited,” and “non-scientific.” Still, it is noteworthy that the data now available do not support the proposition that, in every case and in all circumstances, electronic coverage creates a significant adverse effect upon the participants in trials – at least not one uniquely associated with electronic coverage as opposed to more traditional forms of coverage. Further research may change the picture. At the moment, however, there is no unimpeachable empirical support for the thesis that the presence of the electronic media, ipso facto, interferes with trial proceedings.61

Thus, the Court concluded that experiments such as the Florida test at issue in Chandler should not be constitutionally barred. Whatever may be the “mischievous potentialities [of broadcast coverage] for intruding upon the detached atmosphere which should always surround the judicial process,” at present no one has been able to present empirical data sufficient to establish that the mere presence of the broadcast media inherently has an adverse effect on that process.62

Hollingsworth v. Perry The most recent U.S. Supreme Court case on the issue of courtroom broadcasting was in early 2010, when the Court was asked to stay the television broadcast of a federal trial on the constitutionality of California’s Proposition 8.63 The district court had issued an order requesting that the chief judge of the Ninth Circuit Court of Appeals permit broadcasting of the trial live via streaming video to a number of federal courthouses, and to the web on a delayed basis.64 The appeals court’s chief judge approved the remote broadcasts, but withheld a decision on the web streaming, pending the resolution of some technical issues.65 The defendants objected and sought a stay,66 which the Supreme Court granted.67 In doing so, the Court limited its decision to the propriety of the process by which the district court adopted the new rule allowing broadcasting, holding that, “[b]efore abandoning its own policy – one consistent with the Judicial Conference’s longstanding views – it was incumbent on the District Court to adopt a proposed rule only after notice and an adequate period for public comment.”68 The question whether courtroom proceedings should be broadcast has prompted considerable national debate. Reasonable minds differ on the proper resolution of that debate and on the restrictions, circumstances, and procedures under which such broadcasts should occur. We do not here express any views on the propriety of broadcasting court proceedings generally.69 61. Id. at 576. n.11 (citations omitted) (emphasis added). 62. Id. at 578 (Estes v. Texas, 381 U.S. 532, 587). 63. Proposition 8, also known as the California Marriage Protection Act, was passed by the voters of California in November 2008. It overturned the California Supreme Court's ruling of In re Marriage Cases, 43 Cal. 4th 757, 76 Cal. Rptr. 3d 683, 183 P.3d 384 (2008), that same-sex couples have a right to marry under the state constitution. 64. Hollingsworth v. Perry, 558 U.S. ___, 130 S. Ct. 705, 707 (2010) . 65. Id., 130 S. Ct. at 708-09. 66. Id. 67. Id. The court initially granted an emergency stay. pending further appeal, with Justices Breyer and Ginsberg dissenting. Hollingsworth v. Perry, 558 U.S. ___, 130 S. Ct. 1132, 175 L. Ed.2d 878 (Jan. 11, 2010). The court then permanently granted the stay in a five-four decision. Hollingsworth v. Perry, 558 U.S. ___, 130 S. Ct. 705, 175 L. Ed. 2d 657 (Jan. 13, 2010). 68. Hollingsworth v. Perry, 558 U.S. ___, 130 S. Ct. 705, 712, 175 L.Ed.2d 657 (Jan. 13, 2010). 69. Id., 130 S. Ct. at 709. Reynolds Courts & Media Law Journal

285


Eyeing the Supreme Court’s Challenge While the majority did not mention the potential effects of broadcasting the Proposition 8 case, it is interesting to note that the supporters of the proposition, who opposed the broadcast, stated that they had been harassed because of their position on Proposition 8, including receiving death threats.70 They also anticipated these threats continuing or increasing if the case was broadcast. The record is already replete with evidence showing that any publicizing of support for Prop 8 has inevitably led to harassment, economic reprisal, threats, and even physical violence. In this atmosphere, witnesses are understandably quite distressed at the prospect of their testimony being broadcast worldwide on YouTube. Whatever truth there may be to the notion that televising trials will better educate the public about the federal judiciary, “increased public education cannot be allowed to interfere with the judiciary’s primary mission, which is to administer fair and impartial justice to individual litigants in individual cases.”71

Justice Breyer dismissed these concerns in his dissent, which was joined by Justices Stevens, Ginsburg, and Sotomayor. I can find no basis for the Court’s conclusion that, were the transmissions to other courtrooms to take place, the applicants would suffer irreparable harm. … Neither the applicants nor anyone else “has been able to present empirical data sufficient to establish that the mere presence of the broadcast media inherently has an adverse effect on [the judicial] process.” … And, in any event, any harm to the parties, including the applicants, is reparable through appeal.72

Judge Kozinski and Johnson’s article, Of Cameras and Courtrooms,73 is reported as being a response to the Supreme Court’s decision in Hollingsworth.74 In their article, Kozinski and Johnson dismiss the objections to broadcasting of trials as archaic. Those who say that cameras will change the atmosphere of the courtroom must do more than blindly oppose the new and the different. … Things change, and that’s not a bad thing. … There’s no reason to think that allowing cameras in the courtroom will prove any worse than all the changes that have come before, and there’s plenty of reasons to think it will be a good thing. The premise that transparency and accountability are good for institutions has animated our traditional preference for open courtrooms, and there’s no reason to turn our back on it today.75

Kozinski and Johnson state that the most “telling” argument in favor of courtroom cameras is the “experience” and number of states that permit television courtroom broadcasting.76 But the forms and methods of courtroom broadcasting permitted vary from state to state, and the matter is still a matter of contention in many respects. Kozinski and Johnson also 70. Id., 130 S. Ct. at 707. 71. Brief for Petitioner on Application for Immediate Stay of the District Court’s Order Permitting Public Broadcast of Trial Proceedings, at *4, Hollingsworth v. Perry, 558 U.S. ___, 130 S. Ct. 1132, 175 L. Ed. 2d 878 (2010) (No. 09A648), available at http://www.scotusblog.com/wp-content/uploads/2010/01/ Stay-TV-on-Prop-8-trial-1-9-10.pdf (quoting Cameras in the Courtroom: Hr’g Before the S. Comm. on the Judiciary, 48, 109th Cong. [Nov. 9, 2005] [statement of Hon. Diarmuid O’Scannlain for the Jud. Conf. of U.S., available at http://judiciary.senate.gov/hearings/testimony.cfm?id=e655f9e2809e54768 62f735da10c4fec&wit_id=e655f9e2809e5476862f735da10c4fec-2-1]). 72. Hollingsworth v. Perry, 130 S. Ct. at 718 (Breyer, J., dissenting) (citations to Chandler v. Florida, 449 U.S. 560 [supra note 57], and other sources omitted). 73. Kozinski & Johnson, supra note 58. 74. See Bob Egeilko, Let Cameras in Courts, Chief Judge Says, S.F. Chron., Oct. 8, 2010, at C-3. 75. Kozinski & Johnson, supra note 58, at 1116. 76. Id. at 1114.

286

Volume 1, Issue 3


Eyeing the Supreme Court’s Challenge indicate that “empirical evidence from the states [is] ... positive,” citing a study by the Federal Judicial Center.77 However, as discussed infra, there are actually few empirical studies on the issues raised by cameras in courtrooms, and validation of the studies that do exist is almost entirely absent.

The Missing Research

O

ne would have thought that, in the 46 years since the Supreme Court’s decision in Estes, substantial and sustained empirical research would have been undertaken to meet the Supreme Court’s challenge and to enhance our knowledge and understanding of television courtroom broadcasting. But while the Supreme Court has suggested that social science and empirical research be undertaken as part of addressing the research gaps on the effects of broadcasting of court proceedings, the empirical research challenge has not been fully taken up by social science researchers, the media, or the courts themselves. The first reported television courtroom broadcast of a trial occurred in 1953.78 Since then, there appears to have been twenty-four scientific, methodical, and empirical studies of television courtroom broadcasting effects issues.79 But most of the studies are non-sci 77. Id. at 1113. For information on the Federal Judicial Center study, see infra, p. 290. 78. Gilbert Geis, A Lively Public Issue: Canon 35 in the Light of Recent Events, 43 A.B.A. J. 419, 420 (May 1957). This first television trial broadcast—on a delayed basis, not live—was the murder trial of Billy Eugene Manley in Oklahoma City. The first live broadcast was a 1955 murder trial in Waco, Tex. Id. Of course, before such television broadcasts, there were examples of court proceedings being filmed and played in movie theatres. But most, if not all, of the effects literature is addressed to television, as opposed to the movie theater coverage. Yet, many of the same in-court distraction issues may apply to movie filming as well. Possibly this issue is not addressed in the general literature as the movie broadcasts gave way when television courtroom broadcasts became more popular. 79. Chronologically, this methodical and empirical research is the following: James L. Hoyt, Courtroom Coverage: The Effects of Being Televised, 21 J. Broadcasting 487 (1977); Donald Lewis Shores, Jr., The Effects of Courtroom Cameras on Verbal Behaviour: An Analysis of Simulated Trial Witness Testimony in Courtrooms Using Television Cameras (1981) (Ph.D. dissertation, University of Florida), available at http://ufdc.ufl.edu/UF00098276/00001; Ernest H. Short & Assocs., Evaluation of California’s Experiment with Extended Media Coverage of Courts, Submitted to Administrative Office for the Courts; the Chief Justice’s Special Committee on the Courts and the Media, and the California Judicial Council (1981); Steve Robert Pasternack, The Effects of Perceived Community Pressure on Simulated Juror Guilt Attributions: A Study (1982) (Ph.D. dissertation, University of Tennessee, Knoxville); Saul M. Kassin, TV Cameras, Public Self-Consciousness, and Mock Juror Performance, 20 J. Experimental Psych. 336 (1983/84); Anna R. Paddon, Television Coverage of Criminal Trials with Cameras and Microphones: A Laboratory Experiment of Audience Effects (1985) (Ph.D. dissertation, University of Tennessee, Knoxville); Eugene Borgida, Kenneth G. DeBono & Lee A. Buckman, Cameras in the Courtroom: The Effects of Media Coverage on Witness Testimony and Juror Perceptions, 14 L. & Human Behavior 489 (1990); Alan Punches, The Cognitive Effects of Camera Presence on the Recall of Testimony in a Simulated Courtroom Setting (1991) (Ph.D. dissertation, Colorado State University, Fort Collins); Federal Judicial Center, Coverage of Federal Civil Proceedings: An Evaluation of the Pilot Program in Six District Courts and Two Courts of Appeals (1994), available at http://www.fjc.gov/public/pdf.nsf/lookup/elecmediacov.pdf/$file/elecmediacov.pdf; N.Y. State Comm. to Review Audio-Visual Coverage of Court Proceedings, An Open Courtroom: Cameras in New York Courts (1997); Kermit Lyol Netterburg, Cameras in the Courtroom: Is A Picture Worth a Thousand Words? (1980) (Ph.D. dissertation, University of Minnesota); Allen Bukoff, The Effects of Video Camera Techniques on the Pre-deliberation Judgements and Perceptions of Roleplaying Jurors (1984) (Ph.D. dissertation Kent State University); S.L. Alexander, “Mischievous Potentialities���: A Case Study of Courtroom Camera Guidelines, Eighth Judicial Circuit, Florida (1989) (Ph.D. dissertation, University of Florida), available at www.archive.org/stream/mischievouspoten00alex; William Petkanas, Cameras on Trial: An Assessment of the Educational Effects of News Cameras in Reynolds Courts & Media Law Journal

287


Eyeing the Supreme Court’s Challenge entific and non-empirical, rely on self-reports by interested parties80 (a research methodology that has been called “qualitatively inadequate”81), and use simulated rather than actual trials.82 Some lack rigid scientific methodology;83 and several are based on examinations of only one or a few individual trials.84 Virtually all of the research on the effects of courtroom cameras is based upon surveys of certain courtroom participants. Sometimes these courtroom participants may be personally interviewed, but generally the courtroom participants are asked to fill in a questionnaire soliciting their opinions on various pre-defined issues. As with any survey or questionnaire, the questions asked can vary in number and sophistication. But this is not the most reliable means of gauging effects of television courtroom broadcasting on courtroom participants: other scientific methods may be more accurate.85 Also, most of these studies are singular, and not reproduced, emphasizing that there are no internal or external checks or validations. There is a general absence of research which has been subsequently replicated and verified. There have been very few studies of television courtroom broadcasting which can actually be described as preliminary or qualitative research. In fact, it is said that there are only four qualitative, social science studies of the effects of courtroom broadcasting on courtroom proceedings,86 and even those studies are limited in scope and focus. Trial Courts (1990) (Ph.D. dissertation, New York University); Paul E. Thaler, The Impact of the Television Camera on Courtroom Participants: A Case Study of the Joel Steinberg Murder Trial (1990) (Ph.D. dissertation, New York University); Theresa D. Keller, Cameras in Courtrooms: An Analysis of Television Court Coverage in Virginia (1992) (Ph.D. dissertation, University of Tennessee); Roberta Enter, The Figure of the Judiciary: A Semiotic Analysis of Broadcast Trials to Ascertain its Definition of the Court System (1993) (Ph.D. dissertation, New York University); Steve Anthony Esposita, OJ TV: A Narrative Analysis of Television’s Pretrial Coverage of the OJ Simpson Case (1996) (Ph.D. dissertation, Wayne State University), available at http://proquest.umi.com/pqdlink?did=742576221&Fmt=6 &clientId=1846&RQT=309&VName=PQD; Kimberly Allan, et al., Dep’t for Cts., The Impact of Television, Radio and Still Photography on Coverage of Court Proceedings – Final Report (1998) [New Zealand]; Ruthie Elizabeth Reeves Stewart, The Changing Relationship Between Camera and the Courts (1998) (M.A. thesis, Florida Atlantic University); UMR Research, Ltd., Media Coverage of Court Proceedings: Summary Report (1998) [New Zealand]; Steven Kohm, I’m Not a Judge but I Play One on TV: American Reality-Based Courtroom Television (2004) (Ph.D. dissertation, Simon Fraser University), available at http://ir.lib.sfu.ca/bitstream/1892/9018/1/b39306975.pdf; Jessica Ossinger, Electronic Access to Courtrooms: Television as an Educational Socializing Agent on the Judiciary (2006) (M.A. thesis, The University of Maine), available at http://www.library.umaine.edu/theses/pdf/ OssingerJ2006.pdf; Committee to Study Extended Media Coverage, A Subcommittee of the Legislation Committee of the Md. Jud. Conf., Report of the Committee to Study Extended Media Coverage of Criminal Trial Proceedings in Maryland (2008), available at http://www. courts.state.md.us/publications/pdfs/mediacoveragereport08.pdf. 80. Marjorie Cohn & David Dow, Cameras in the Courtroom: Television and the Pursuit of Justice 62-63 (1998); Susanna Barber, News Cameras in the Courtroom: A Free Press – Fair Trial Debate 68 (1987). 81. Dan Slater & Valerie P. Hans, Methodological Issues in the Evaluation of “Experiments” with Cameras in the Courts, 30 Comm. Q. 376, 376 (1982). 82. Cohn & Dow, supra note 80, at 62. 83. Barber, supra note 80, at 68. 84. Id. 85. Self-reports, while useful in many areas of research, are not “independent” and are often criticised. See infra p. 296 for a discussion of this issue. 86. Cohn & Dow, supra note 80, at 62, et seq. These four studies are James L. Hoyt, Courtroom Coverage: The Effects of Being Televised, 21 J. Broadcasting, 489 (1977) (Wisconsin); Ernest H. Short & Associates, Evaluation of California’s Experiment with Extended Media Coverage of Courts (1981) (California); Eugene Borgida, Kenneth G. DeBono & Lee A. Buckman, Cameras in the Court-

288

Volume 1, Issue 3


Eyeing the Supreme Court’s Challenge

Hoyt Study For example, James L. Hoyt’s 1977 study87—which appears to be the first experimental social science study of television courtroom broadcasting88—“attempt[ed] to experimentally test speculation, to determine if, in fact, individuals are affected by the awareness that they are being televised.”89 In Hoyt’s study, “subjects were shown a brief film containing rather detailed information, then were asked specific questions about the content of the film.”90 During this questioning, the subjects faced either a conspicuous television camera, which they were told was recording their answers for later viewing by a large number of people, an unobtrusive camera hidden behind a mirror, or no camera at all.91 Based on the assumption obvious in the reasoning of Justices Clark and Warren [in Estes] it was predicted that when they were televised (whether by an obtrusive or unobtrusive camera) the participants would recall significantly less correct information about the film than when they were not being televised. Because a number of the recent proposals for courtroom coverage by television have mentioned that cameras would be camouflaged, the unobtrusive camera condition was included to determine the effects of hiding the camera.92

But this prediction was not borne out in the results. Instead, “the … study found no significant differences in the respondents’ verbal behavior when they faced a hidden television camera as compared to when no camera was present. Thus the assumption that when faced by a television camera, persons’ memories may fail, etc., was not supported.”93 Hoyt’s study is welcome in terms of proposing a potentially isolated effect to research and creating a method to do so. But the study was limited because it involved only a very small sample,94 and focused on one function – memory, hypothesized by judges to be affected by the presence of cameras – rather than on an effect predicted from empirical observation. More importantly the results cannot be generalized in the absence of followup research that duplicated the results of Hoyt’s single, stand-alone study.

Short Study A 1981 study by Ernest H. Short and Associates—done on behalf of the California Judicial Council to evaluate that state’s cameras in the courts experiment—surveyed participants in 200 legal proceedings on whether they were distracted by the presence of cameras (i.e. self reports). The researchers also placed neutral observers in proceedings to record the perceived reaction, if any, of courtroom participants to the cameras.95 The study found that the presence or absence of cameras had little, if any, effect on trial room: The Effects of Media Coverage on Witness Testimony and Juror Perceptions, 14 L. & Human Behavior 489 (1990) (Minnesota); and Fed’l Jud. Ctr., Coverage of Federal Civil Proceedings: An Evaluation of the Pilot Program in Six District Courts and Two Courts of Appeals (1994), available at http://www.fjc.gov/public/pdf.nsf/lookup/elecmediacov.pdf/$file/elecmediacov.pdf. 87. James L. Hoyt, Courtroom Coverage: The Effects of Being Televised, 21 J. Broadcasting 489 (1977). 88. Barber, supra note 80, at 70. All prior studies of the issue were either case studies or surveys. Id. 89. Hoyt, at 490-91. 90. Id. at 490. 91. Id. 92. Id. (footnote omitted). 93. Id. at 494. 94. The study involved 36 college volunteers, in a 15-minute research session. Id. at 490. 95. Short & Assocs., Evaluation of California’s Experiment with Extended Media Coverage of Courts, Submitted to Administrative Office for the Courts; the Chief Justice’s Special Committee on the Courts and the Media, and the California Judicial Council (1981). Reynolds Courts & Media Law Journal

289


Eyeing the Supreme Court’s Challenge participants’ attentiveness, demeanor (calm or anxious), or ability to communicate. It also found little effect on courtroom decorum. The study concluded that “there is little evidence in this evaluation to suggest that [electronic media coverage] causes significantly more changes in behavior than does conventional media coverage.”96 The Short study should be commended for the serious effort it brought to the problems presented: arguably, no other single research effort on the effects of courtroom television broadcasting has equaled this endeavor. But Short’s study is limited by its reliance on observational research, which cannot match the accuracy of more modern research methods.97

Borgida Study In another study, undergraduate students were shown a video of a crime, and then were questioned about it as witnesses in a courtroom setting, complete with students playing the role of judge and jurors.98 The courtroom setting included one of the following: a video …the presence or absence of camera and operator, a journalism student cameras had little, if any, effect on taking notes with pen and paper, or no media presence.99 trial participants’ attentiveness... Witnesses were observed during their sessions, and players of both roles were questioned at the end of their sessions: jurors were asked to evaluate the behavior of the witnesses, while witnesses evaluated their own behavior.100 The witnesses in the sessions with the camera reported that they were more nervous than the witnesses in the other scenarios did,101 a self-assessment affirmed by the jurors observing the witnesses’ performance.102 Despite their nervousness, however, the witnesses’ testimony was as accurate as the testimony of the witnesses in the other sessions.103 “[W]hile people may believe that [electronic media coverage] is associated with a host of disruptive effects on judgment, memory, and decision making,” the authors concluded, “the weight of empirical evidence from the present research does not provide support for such concerns.”104 But the researchers are make it clear that the implications of their study are limited to its own findings.105

Federal Judicial Center Study The Federal Judicial Center study was the evaluation of the federal courts’ experiment with courtroom television broadcasts, which was held from 1991 through 1993 in six district and 96. Id. at 228. 97. One such method is eyetracking, which is described in detail infra. 98. Eugene Borgida, Kenneth G. DeBono & Lee A. Buckman, Cameras in the Courtroom: The Effects of Media Coverage on Witness Testimony and Juror Perceptions, 14 L. & Human Behavior 489, 493-94 (1990). 99. Id. at 495-96. In the non-camera scenario, the sessions were videotaped without the participants’ knowledge by a camera hidden behind a one-way mirror. Id. at 496. 100. Id. at 496-97. 101. Id. at 499-500. 102. Id. at 489. 103. Id. at 502-04. 104. Id. at 506. 105. Id. Emphasis added.

290

Volume 1, Issue 3


Eyeing the Supreme Court’s Challenge two appellate courts,106 and which placed cameras in 147 proceedings.107 The results, based on post-trial surveys of trial participants, were that “judges and attorneys who had experience with electronic media coverage under the program generally reported observing small or no effects of camera presence on participants in the proceedings, courtroom decorum, or the administration of justice.”108 This study employed opinion (self-)report questionnaires, with no observational data gathering on effects issues. The study also missed the opportunity to consider “before and after” effect issues by gathering data either before the cameras entered the courtroom or, because the experiment was temporary and did not lead to permanently allowing cameras in federal courts, after the cameras left. The federal court’s second pilot experiment of courtroom cameras is about to commence.109 It remains to be seen, however, if any initial baseline research data gathering will be undertaken prior to the cameras rolling. Such baseline research allows comparison and examination of effects of cameras, and is an important omission in most prior research on the in-court effects of cameras.

Limits of Existing Empirical Research While helpful, these four studies are hardly definitive or acceptable as a sufficient body of research on the practical, real-world effects of courtroom television. For example, while Short’s study in California measured whether witnesses and other trial participants were noticeably aware of the presence of a camera, it did not examine the extent of this awareness, that is, how many times a particular courtroom participant was either distracted by or focused on the television camera.110 The empirical studies have examined the following issues raised by the U.S. Supreme Court in its rulings on courtroom broadcasting: distraction of courtroom participants; memory/recall of one category of courtroom participant; and pressure on one type of courtroom participant. This leaves many areas of concern cited by the Court that have not yet been addressed and or validated. The research also fails to recognize that camera technology varies. Most modern camera technology is “small, easily concealed and capable of operating without obtrusive lighting and microphones.”111 But there is no basis to assume that this type of technology will be used in every case, or even predominate. There are no research statistics on where and how frequently miniature cameras are used, or in how many instances a large camera with a tripod and an in-court camera operator is used. How does this compare between jurisdic 106. Federal Judicial Center, Coverage of Federal Civil Proceedings: An Evaluation of the Pilot Program in Six District Courts and Two Courts of Appeals 4-5 (1994), available at http:// www.fjc.gov/public/pdf.nsf/lookup/elecmediacov.pdf/$file/elecmediacov.pdf. The courts participating were the U.S. District Courts for the Southern District of Indiana, District of Massachusetts, Eastern District of Michigan, Southern District of New York, Eastern District of Pennsylvania, and Western District of Washington; and the U.S. Courts of Appeals for the Second and Ninth Circuits. Id. at 5. 107. Id. at 10. 108. Id. at 7. 109. A separate article in this issue discusses this experiment in detail. 110. Federal Judicial Center, supra note 106, at 22-27. Compare, e.g., Heather C. Schmidt, Effects of Interrogator Tactics and Camera Perspective Bias on Evaluations of Confession Evidence (2006) (M.Sc. thesis, Ohio University), available at http://etd.ohiolink.edu/send-pdf.cgi/Schmidt%20Heather%20C. pdf?ohiou1155923366. Schmidt’s subjects viewed a video of a conversation between two actors, and were told to press a button when they perceived one of the actors looking directly at the camera rather than the other actor (referred to as a “target effect”). Schmidt, at 30. 111. Kozinski & Johnson, supra note 58, at 1110. Reynolds Courts & Media Law Journal

291


Eyeing the Supreme Court’s Challenge tions and court levels? How often is camera technology operated remotely, with no visible indication of where the camera is pointing, and even whether it is on?112 The height, location, angle, etc. of cameras are also important factors in creating effects.113 There simply appears to be no research on these points. Thus the controversy about cameras in courtrooms remains, with a “lack of specific data which can be brought to bear on the questions raised.”114 In view of the practical importance of this problem for the judiciary and the Supreme Court’s repeated plea for behavioral research on the matter, it is surprising that, to date, the only relevant data available are anecdotal case studies, public opinion surveys, and the verbal reports of those who had participated in television trials.115

Proposal for use of eye-tracking technology

I

n its decisions addressing the effects of television courtroom broadcasting, the Supreme Court observes that camera technology has changed, and is likely to continue to do so. It is ironic that while some of the Supreme Court’s comments focus on how television technology may change, neither the Court nor commentators have recognized that research and research tools also change. Indeed, the research tools have improved vastly in the past several years,116 which opens new avenues and methodologies for research into the effects of television courtroom broadcasting. One of these new research methods is the use of eye tracking, which can track and record where courtroom participants are looking, and for how long, and whether they are truly distracted. The research and technology is significantly advanced so that eye tracking can be instrumental in researching the effects of television courtroom broadcasting, without having to rely solely on limited self-reports and opinion reports by subjective observers. In short, eye tracking can address the gaps in television courtroom broadcasting research regarding distraction, and address the Supreme Court’s research challenge.117 But this research tool has yet to be used to examine the effects of courtroom television broadcasting. It has not yet been considered.

Description of the technology and its applications The device used in an eye-tracking study is known as an eye tracker. There are various types of eye trackers, 118 including systems using sensors on the muscles surrounding the subject’s eyes;119 contact lenses with a wire connected to sensing equipment;120 and light-

112. Id. 113. See, e.g., G. Daniel Lassiter and Andrew A. Irvine, Videotaped Confessions: The Impact of Camera Point of View on Judgments of Coercion, 16 J. Applied Social Psych. 286 (1986). 114. Hoyt, supra note 87, at 489. 115. Saul M. Kassin, TV Cameras, Public Self-Consciousness, and Mock Juror Performance, 20 J. Experimental Psych. 336 (1983/84), at 337. 116. See, e.g., Kirk Ewing (Tobii Technology), Whitepaper: Studying Web Pages Using Eye Tracking (Aug. 2005), at 2, available at http://www.scribd.com/doc/20321480/Tobii-Whitepaper-StudyingWeb-Pages-Using-Eye-Tracking. (“New hardware and software tools have been developed … to overcome all of the outstanding objections to the collection of high quality eye tracking data.”). 117. The Supreme Court does not mention eye tracking in any of its decisions on courtroom television broadcasting, even though the concept was first formulated in 1901 and accurate eye-tracking devices were created in the 1950s. Andrew Duchowski, Eye Tracking Methodology, Theory and Practice 51 (2007). 118. For a brief review and introduction to visual attention research, see Duchowski, at 3-13. 119. This method, known as electro-oculography, was the primary method used in the 1960s. See id., at 52. 120. Id., at 52-53.

292

Volume 1, Issue 3


Eyeing the Supreme Court’s Challenge weight eyeglasses or other head-mounted equipment.121 These devices are paired with equipment that can determine the position of the eye and the direction of eye focus, and can record the data for future playback and analysis.122 Studies of gaze and visual attention have been undertaken for a considerable time, and the literature on eye tracking is constantly growing,123 Eye-tracking research and techniques have been used repeatedly in advertising, marketing, psychology, eyewitness accuracy studies,124 Internet usage research, health, and various other fields. There are also a wide range of eye-tracking applications,125 including marketing and advertising;126 law enforcement and policing;127 human-machine interactions;128 and to assist those with disabilities.129 Mercedes even uses eye-tracking technology for driver fatigue alert systems.130 121. Id.. at 53-54, 55. This is the type of equipment used for the “test of concept” described in this article. See infra p. 296. For a discussion of head-mounted eye-tracking equipment, see Christopher D. Wickens, Michelle Vincow & Michelle Yeh, Design Applications of Visual Spatial Thinking: The Importance of Frame of Reference, in The Cambridge Handbook of Visuospatial Thinking 383, 406 (Priti Shah & Akira Miyake, eds., 2005), article available at http://www.humanfactors. illinois.edu/Reports&PapersPDFs/chapters/Design%20Applications%20of%20Visual%20Spatial%20thinking.pdf. See also Jason S. Babcock & Jeff B. Pelz, Building a lightweight eyetracking headgear, in Etra ‘04 Proceedings of the 2004 Symposium on Eye Tracking Research & Applications (2004), available at http://www.cis.rit.edu/people/faculty/pelz/publications/ ETRA04_babcock_pelz.pdf. 122. Duchowski, at 54-58. 123. See Jakob Nielsen & Kara Pernice, Eyetracking Web Usablility (2009); Michel Wedel & Rik Pieters, Eye Tracking for Visual Marketing 1:4 Foundations & Trends in Marketing 231 (2008); J.M. Spector, Handbook of Research on Educational Comm. & Tech. (2008); see also J. Michael Henderson, ed., Real World Scene Perception: A Special Issue of Visual Cognition (2005); Gary Hatfield, Perception and Cognition: Essays in the Philosophy of Psychology (2009); Claus Bundesen & Thomas Habekost, Principles of Visual Attention: Linking Mind and Brain (2008); and Priti Shah & Akira Miyake, The Cambridge Handbook of Visuospatial Thinking (2005). 124. Philip Smith has used the technology to examine about the effect of different forms and formats of court-mandated health advertisements. See Philip Smith, Evaluating the Corrective Statements Proposed in the Court Case U.S. Department of Justice vs. Philip Morris U.S.A. Inc., et al., (2009) (M.S. thesis, State University of New York at Buffalo). 125. Duchowski at 203, et seq. See also Daniel Richardson & Michael Spivey, Eye Tracking: Research Areas and Applications, in Gary Bowlin & Gary Wnek, eds., Encyclopedia of Biomaterials and Biomedical Engineering 1033- 42 (2d ed. 2008). 126. Duchowski at 205. See also, Mitchell Bingemann, Eye-tracking Device Watches You Watching Ads, ComputerWorld, May 10, 2007, http://www.computerworld.com.au/article/182716/eye-tracking_ device_watches_watching_ads/. 127. See, e.g., http://www.setcan.com/eyelock.html, describing the EyeLock training system for law enforcement training. 128. See, e.g., Anne Eisenberg, Pointing With Your Eyes, to Give the Mouse a Break, N.Y. Times, March 26, 2011, http://www.nytimes.com/2011/03/27/business/27novel.html. 129. Javier San Agustin, Henrik Skovsgaard, John Paulin Hansen & Dan Witzner Hansen, Low-cost gaze interaction: ready to deliver the promises, in Proceedings of the 27th international Conference Extended Abstracts on Human Factors in Computing Systems 4453-58 (Boston, Mass., April 4-9, 2009), paper available at http://delivery.acm.org/10.1145/1530000/1520682/p4453-sanagustin. pdf?ip=134.197.13.25&CFID=25814421&CFTOKEN=90839322&__acm__=1307482662_3ea8e5817c bd14f1621df4211df81d0e. 130. See Michael Taylor, No Doze: Mercedes E-Class alerts drowsy drivers, Autoweek, Dec. 24, 2008, http://www.autoweek.com/article/20081224/free/812249991; see also Qiang Ji, and Xiaojie Yang, Real-Time Eye, Gaze, and Face Pose Tracking for Monitoring Driver Vigilance, 8:5 RealTime Imaging 357 (2002), available at http://www.sciencedirect.com/science?_ob=MImg&_ Reynolds Courts & Media Law Journal

293


Eyeing the Supreme Court’s Challenge

Eye Tracking, Law and Psychology Eye trackers are increasingly used in psychology and eyewitness identification research. Josephson and Holmes recently used eye trackers to examine how eyewitnesses recognize suspects in photograph line-ups.131 Loftus, et al., researching the focus of crime victims on weapons, used a corneal reflection device (a type of eye tracker) to discover where and for how long individuals would focus their attention.132 Eye tracking is also used to research the effects of cameras and camera perspective bias in recorded police interviews and confessions.133 One focus of this research is how different camera angles and focus orientations of the camera can significantly alter how viewers of such footage rate the genuineness and voluntariness of a “confession.”134 For instance, mock jurors are influenced by the camera angle from which an interrogation is filmed.135 This phenomenon, known as “camera perspective bias,” can be a significant factor in criminal prosecutions. The cameras in most video-recorded criminal investigation interviews focus only on the suspect, rather than focusing on the interrogator, or focus on both of them at the same time. This camera perspective has been shown to enhance the salience of the suspect and also the perceived voluntariness of any confession.136 As a result of this research, police practice in New Zealand was changed to ensure that there are no suspect-only video recordings, and that the suspect and questioner are always both in frame.137 In addition, various legal-psychology research into eyewitness identification and witness memory has used the technology.138 Eye trackers have also been used to examine how eyewitnesses recognize suspects in photograph lineups.139

imagekey=B6WPR-47C4CBC-2-1&_cdi=6997&_user=1450828&_pii=S1077201402902792&_origin=&_coverDate=10%2F31%2F2002&_sk=999919994&view=c&wchp=dGLbVlW-zSkWz&md5=2 9692bd376437e28325e95acb48e90c1&ie=/sdarticle.pdf. 131. Sheree Josephson & Michael Holmes, Have You Seen Any of These Men? Looking at Whether Eyewitnesses Use Scanpaths to Recognize Suspects in Photo Lineups, ETRA, Proceedings of the 2010 Symposium on Eye-Tracking Research & Applications (Austin, Texas, March 22–24, 2010), available via http://dl.acm.org/citation.cfm?id=1743677. 132. Elizabeth Loftus, Geoffrey Loftus & Jane Messo, Some Facts About “Weapon Focus,” 11:1 L. & Human Behavior 55, n.43 (1987), available at https://webfiles.uci.edu/eloftus/LoftusLoftusMessoWeaponFocusLPagesHB87.pdf. 133. See, e.g., Ware, supra note 10. 134. Schmidt, supra note 110. 135. Lassiter & Irvine, supra note 113. Lassiter and Irvine showed research study subjects the same interview recorded with different camera perspectives. Those who saw the suspect-only video perceived less coercion than those who saw the footage from the other perspectives. Id. Other research also confirmed that videos showing only on a criminal suspect yielded significantly higher ratings for perceived guilt and voluntariness. See, e.g., G. Daniel Lassiter, Andrew L. Geers, Patrick J. Munhall, Robert J. PloutzSnyder & David L. Breitenbecher, Illusory Causation: Why It Occurs, 13 Psych. Sci. 299 (2002). See also Schmidt, supra note 110, at 25-26. 136. Schmidt, at 11. 137. Schmidt, at 31. 138. For one recent example, see Julie Yehgyung Kwak, Remembering Faces: Using Eye Movement Measures to Investigate Differences Between True and False Memory (2009) (Ph.D. thesis, University of California, Irvine). 139. See, e.g., Josephson & Holmes, note 131, supra.

294

Volume 1, Issue 3


Eyeing the Supreme Court’s Challenge

Eye Tracking and In-Court Effects With eye tracking being used for research across a wide variety of fields and applications, why should we not use it to address the many research gaps in television courtroom broadcasting, and the Supreme Court’s challenge? While there does not appear to be any literature on eye tracking in relation to television courtroom broadcasting, it could be a useful tool in determining the effects of different camera types and locations are on different courtroom participants; in different locations in courtrooms; and on different forms of television courtroom broadcasting. Eye tracking and related psychological research can begin to address the research gaps in television courtroom broadcasting effects research delineated by the Supreme Court. As explained in detail supra, in Estes, Chandler, and Hollingsworth, the Supreme Court referred to various effects and potential effects, including the effects on witnesses,140 judges,141 and defendants.142 Eye-tracking research in courtroom settings could potentially include: • Using eye tracking to determine whether various courtroom participants look at the camera, and if so, for how long; • Does the location of the camera make a difference? (In most research, the location and height of the cameras is not considered or even documented, so we cannot look back to assess and compare different cases or research studies on these points.)143 • What are the effects of different camera angles and framing?144 • What influence do the location(s) of the courtroom participants have?145 • Are there different effects for camera only versus camera and cameraman? • Are there different effects for different types of cameras? • Do the effects change if a courtroom is modified to accommodate cameras?146 • Does the distraction caused by the camera’s presence vary according to the task that a courtroom participant is accomplishing?147 • Is there a difference in the effects of long, extended footage versus short, snippet footage?148

140. Estes, 381 U.S. 541, 547 (1965). 141. Id. at 541, 548, 549, 550, 565, 614. 142. Id. at 549, 551, 552–53, 555, 552–55, 566–67. Generally, defendant effects are one of the least researched areas of television courtroom broadcasting. 143. Short’s report on the first federal experiment, for example, does not include any diagrams, documented camera locations, or differences between effects of a camera versus a camera plus cameraperson. See Federal Judicial Center, supra note 106. 144. See Christopher D. Wickens, Michelle Vincow & Michelle Yeh, Design Applications of Visual Spatial Thinking: The Importance of Frame of Reference, in Priti Shah & Akira Miyake, The Cambridge Handbook of Visuospatial Thinking (2005), 383, 398, et seq., article available at http://www. humanfactors.illinois.edu/Reports&PapersPDFs/chapters/Design%20Applications%20of%20Visual%20Spatial%20thinking.pdf. 145. For example, are the courtroom participants facing straight on, left, or right when they look at the camera? 146. Such modifications were made in Estes, in which “construction of a television booth in the courtroom made it necessary to alter the physical layout of the courtroom and to move from their accustomed position to benches reserved for spectators.” Estes at 572 (Warren, C.J., dissenting). 147. See Wickens, Vincow & Yeh, supra note 144, at 385, et seq. See also Priti Shah, Eric Freedman & Ioanna Vekiri, The Comprehension of Quantitative Information in Graphical Displays, in Shah and Miyake, supra note 144, at 426, 450. 148. See, e.g., Melissa L.-H. Vo and Werner X. Schneider, A Glimpse is not a Glimpse: Differential Processing of Flashed Scene Previews Lead to Differential Target Search Benefits, 18 Visual Cognition 171 (2008). Reynolds Courts & Media Law Journal

295


Eyeing the Supreme Court’s Challenge Many opportunities arise in terms of examining these issues with eye-tracking technology. For example, a subject wearing an eye tracker149 and an observer150 could both look at a particular courtroom participant and try to examine how many times they focus their attention or look at the television camera in the courtroom. The various results would then be compared. This type of research allows itself to be adapted to different courtroom participants and also to realistic settings and real court settings. Studies can also use a variety of eye trackers so that subjects can view pictures or videos of court scenes on a PC, laptop, or projection screen. As indicated above, eye tracking has been used to research several issues in a legal context. But eye tracking has not yet been used for in-court research, including research of television courtroom broadcasting issues. Certainly it was not addressed, nor considered, in any of issues raised in the Supreme Court’s courtroom broadcasting cases. While there are numerous potential effects referred to by the U.S. Supreme Court and by legal commentators, the television courtroom broadcasting effects mentioned by the Court which appear most relevant for eye-tracking research are distraction effects caused by the television cameras (and operators) in the courtroom: i.e., in-court effects. Before eye tracking can be applied to television courtroom broadcasting distraction effects research, it is a useful, if not necessary, first step to undertake a proof-of-concept demonstration of eye tracking in an actual courtroom,151 and to demonstrate the issues involved in such research.152 Moreover, this is important because of the novelty of this technology for television courtroom broadcasting effects research.

Demonstration of Eye-Tracking Testing in a Courtroom Setting

A

s noted supra, one of the primary issues and concerns with television courtroom broadcasting is that the courtroom participants may be distracted by television cameras and/or camera operators.153 The relevant research methodology for examining this is effects research. But the general research to date is based only on questionnaires, rather than on empirical, observation-based research. So it almost solely relies on self-reports from courtroom participants as to whether they found themselves affected by courtroom distractions, or not. Yet the distraction hypothesis presumes that if there are effects, they may be different for different courtroom participants, so reports of effects of courtroom broadcasting on anyone other than the individual completing the questionnaire are inherently unreliable. There is only minimal empirical research in relation to in-court distraction effects.

149. See supra n. 119-122, for various eyetracking equipment. 150. As noted supra, such observers were used in the evaluation of the California courtroom cameras experiment. See note 95, supra. The use of observers would deal with the problem of most television courtroom broadcasting research, namely, of relying solely upon self-reporting, opinion reports and questionnaires. The observers should also be tested for their confidence ratings, which was not done in the California study. See Schmidt, supra note 135, at 30. 151. See Ron A. McQueen & Christina Knussen, Introduction to Research Methods and Statistics in Psychology 347 (2006). 152. See Mark L. Mitchell & Janina M. Jolley, Research Design Explained 463-503 (2001). 153. See p. 236, supra. Aside from the Borgia study, see supra p. 234, there does not appear to have been any other previous research directed to researching the distraction effect, or additional effect, of camera operators in television courtroom broadcasting.

296

Volume 1, Issue 3


Eyeing the Supreme Court’s Challenge

Scoping, Design and Cost Many complex considerations and preparations arise in conducting an eye-tracking experiment of television courtroom broadcasting effects. One has to choose a specific effect to research, choose the technology that will be used, and design the method of study. Other issues involve the locations of courtroom participants and of cameras, as well as how these may interact with the chosen effect being researched. Once the particular potential effect to research has been chosen, one must design the experiment and choose the particular eye-tracking device that is most appropriate. Eyetracking glasses have several advantages for research into television courtroom broadcasting distraction effects. These glasses appear like normal eyeglasses, and are therefore much less obtrusive than other eye trackers. Another advantage is that they are flexible and allow the (mock) courtroom participant using them to move about and operate much as they would in an authentic trial or court situation. The cost of the hardware, software, audio-visual equipment, and related material will not be insignificant. In designing and conducting the experiment, and interpreting the vast amounts of data that will be generated, various specialized skills will be necessary, which will also be a significant cost. The subjects in a given eye-tracking experiment may also have to be paid, as may any third-party researchers required. Thus, for the moment, the goal is to demonstrate the technology in an actual courtroom environment. Such a demonstration would hopefully serve as a “proof of concept” that can be used to direct future research on in-court effects of television courtroom broadcasting, and answer the U.S. Supreme Court’s research challenge. Such a proof of concept is also a necessary first step before carrying out a full eyetracking experiment, and would be the first demonstration of eye tracking in a courtroom environment for courtroom broadcasting effects research. The research aim was to undertake and record the use of an eye tracker in an actual court environment, and to demonstrate and record what someone might see from different courtroom participant positions in the court – both with and without the television camera.

Methodology The author sought and received permission from the Courts Service in Ireland to undertake the first recorded demonstration of eye-tracking technology inside a courtroom, as a proof of concept to use eyetracking technology for television courtroom broadcasting effect research. This demonstration research exercise was carried out in a real court in Dublin, Ireland on Oct. 29, 2010.154 The author requested access to an empty courtroom for two hours. Although it would have been useful to get access to more than one courtroom, as the layout of courtrooms can vary,155 in the end, only one courtroom, normally used for criminal trials, was available for use.156 In researching the distraction effects of courtroom participants caused by television cameras/operators in courtroom settings, it is necessary to undertake the research in an 154. The author acknowledges the kind assistance and permission afforded by the Courts Service. 155. It is also important to note that the physical layout of Irish courts differs from that of American courts. See Fig. 1. 156. The courtroom used, Court 44 of the Bridewell District Court, Chancery Street, Dublin 7, Ireland, is a district (lower level) criminal arraignment and criminal trial court in the Chancery Street Courthouse. The courtroom was empty of lawyers and the public. Reynolds Courts & Media Law Journal

297


Eyeing the Supreme Court’s Challenge actual courtroom environment. Not only it is difficult to replicate an actual courtroom layout without great expense; the demonstration is less valid and less real if undertaken in a room or environment which does not in any way look like a courtroom. Also, the results of the demonstration are more valid and more useful to researchers if undertaken in a real court environment, which would allow greater insights into the actual detailed practicalities and methodologies required for undertaking a full-scale, empirical experiment on in-court eye tracking. One of the researchers had the eye tracker placed upon them.157 The eye tracker was then calibrated to the individual.158 For the test, the researcher wearing the eye tracker (the “subject”) took up the positions of various courtroom participants,159 while the tripod-mounted television camera was located in four different positions within the courtroom.160 The subject wearing the eye tracker then looked about in various directions, simulating what a person in that position might see. This exercise was undertaken both with and without the television audio-visual equipment161 present and visible. The eye tracker and the computer to which it was attached tracked and recorded where the subject looked and what they saw.162 It was useful also to take still photographs, which would be of assistance in designing an actual eye-tracking effects experiment, and in choosing which particular effect to study and how to do so.163 This article focuses on the subject in one location – the witness position – and two of the camera positions, as a “proof of concept” of the use of eye tracking to examine the effects, if any, of courtroom television broadcasting. The subject and camera positions discussed in this article are shown in figure 1. It is important to reiterate that this was not an actual eye-tracking effects experiment. It was only a demonstration of an eye tracker in a court environment.

157. An Ergoneer Dikabilis Cable (wired) head-mounted eye tracker system was used for conducting the demonstration. The system comprises the ergonomic head unit with EyeCam, nasal fitting, elastic band, and infrared diode for illumination of the eye. See Ergoneers GmbH, Overview: Gaze Analytic System Dikablis, http://www.ergoneers.com/en/products/dlab-dikablis/overview.html. Extensive gratitude is expressed to Dr. Anarta Ghosh and Mirko Arnold, researchers at Trinity College, Dublin, each of whom provided invaluable technical expertise in relation to the use, operation, and recording of results with the eye tracker. While this eye tracker was successful for the demonstration and proof-ofconcept, it would perhaps not be the best type of eye tracker to use for any actual in-court experiment. See infra p. 305. It would, however, be very useful for other types of courtroom broadcasting research. In addition, these types of eye trackers offer less flexibility to the wearer, again hindering the authenticity of an actual eye tracking experiment for in-court television courtroom broadcasting effects. 158. This is an exercise necessary with most eye trackers. 159. As a test of concept, only one of these positions – the witness position – is discussed in this article. The author plans to include full details of the research and commentary on the full range of these issues in a forthcoming book on this topic. (Paul Lambert, Television Courtroom Broadcasting: The Supreme Court, Distraction Effects and Eye Tracking (forthcoming)). 160. Again, because this is a test of concept, only two of the camera descriptions are described in this article. 161. A Sony DVCAM Model DSR 1P television camera and Sachler tripod was used. The camera was neither plugged in nor operating. There was no (red) light lit on the camera, which would indicate that it was operating (and could itself be a distraction). 162. There were two video files created and close to 20,000 still pictures created and recorded from the eye tracker. 163. The still photographs were taken on a Sony Cyber-shot 14.1 megapixel camera.

298

Volume 1, Issue 3


Eyeing the Supreme Court’s Challenge Court Clerk

Witness

Court Reporter

Judge

Police Prosecuting Witness

Camera Position 2

1 Solicitors Camera Position 1 To public hallway

2

Prosecutors Stairs to basement holding cells

To public hallway

Public gallery

Figure 1

Results The initial results of the test are set out in the pictures and text that follow. The cross on the still figures (and the relevant video) marks where the subject courtroom participant is actually looking. An actual eye-tracking experiment could also, for example, count how many times the various courtroom participants look at the camera, and for how long on each occasion.

Reynolds Courts & Media Law Journal

299


Eyeing the Supreme Court’s Challenge 1. Witness: No Camera With the subject in the witness position and no others and no camera present (Fig. W1.1), the eye tracker cross marker indicates that the subject is looking to the bench, towards the judge’s position.

Figure W1.1

Figure W1.2 shows a standing lawyer – who is examining or cross-examining the subject/ witness – and a second, seated lawyer present. There is no camera present in the courtroom, and the eye tracker cross marker shows that the subject witness is looking at the standing lawyer.

Figure W1.2

300

Volume 1, Issue 3


Eyeing the Supreme Court’s Challenge 2. Witness: Camera Position 1 Figure W2.1 shows the subject/ witness perspective of a lawyer sitting on the solicitors’ location, with a television camera positioned at the far end of the bench for solicitors, near the court’s doorway vestibule. No camera operator is present. The television camera is focused on the witness. The eye tracker cross marker shows that the witness is looking at the lawyer. With the camera in this position, it is very close to the seated lawyer, and both the camera and the lawyer are central in the cone Figure W2.1 of vision of the subject/witness. Thus, it is not possible to say that the subject witness does not/cannot see the camera when he is focused on the seated lawyer. Further examination and study would be necessary to determine the implications, if any, that this has in relation to distraction effects. In short, what are the implications of camera location for effects on different courtroom participants? Figure W2.2 shows the same setting from the same perspective as Figure W2.1: the lawyer is sitting on the solicitors’ bench, with the camera further away. But now the eye tracker cross marker shows that the witness/ subject is looking at the television camera, which is focused on the subject/witness. These figures show the value of using eye tracking to study courtroom distraction. To an observer visually tracking the apparent gaze of the subject/ witness,164 it may appear – depending on the observer’s Figure W2.2 location in the courtroom165 – that the subject is looking at the same point in both photos. But the electronic eye tracker reveals that the subject/witness is actually focused on different locations in the two figures.

164. As noted supra, this is the method used in Short’s California study, one of the few prior courtroom distraction studies that was done in actual courtrooms. See supra, p. 289. 165. Most of the research into television courtroom broadcasting in-court effects does not use independent, third-party observers. In the few studies that have used such observers, it is not clear where the observers were located in the courtroom while making their observations. Reynolds Courts & Media Law Journal

301


Eyeing the Supreme Court’s Challenge Figure W3.1 adds a second, standing lawyer to the scene from the same subject/witness perspective, standing behind the seated attorney. The television camera remains in the same position at the far end of the solicitors’ bench. The eye tracker cross marker shows that the subject/witness is looking at the seated lawyer, but the camera, seated lawyer and standing lawyer are all in close proximity in the central field of the cone of vision of the subject/witness. Figure W3.1 Even when focused on the seated lawyer the subject/ witness is still able to see the camera. Figures W3.2 and W3.3 are similar to Figure W3.1, with the seated and standing lawyers and the camera in the same positions. In Figure W3.2 the eye tracker cross marker shows that the subject/witness is looking at the standing lawyer, while in Figure W3.3 the marker shows that the subject/witness is looking at the television camera. If the subject/witness does not have to move his head when looking variously at the lawyers Figure W3.2 and the distractor television camera, how are observers in the courtroom able to accurately discern and opine on whether a courtroom participant is distracted by the presence of a camera? This demonstration shows that eye-tracking technology can be more effective in researching the in-court effects of television courtroom broadcasting than prior study methods.

Figure W3.3

302

Volume 1, Issue 3


Eyeing the Supreme Court’s Challenge The next set of figures adds a camera operator to the scene. Figures W4.1 and W4.2 both show a seated lawyer and the television camera in the same positions as before, with a camera operator now located behind the camera. In Figure W4.1, the eye tracker marker shows that the subject/witness is looking at the seated lawyer.

Figure W4.1

In Figure W4.2, the marker shows that the subject/witness is looking at the camera. Again, because of the location of the television camera, the camera, its operator and the seated lawyer are all central in the cone of vision of the subject/witness, making it difficult to determine which is the focus on the subject/witness’ gaze without use of eyetracking technology.

Figure W4.2

Reynolds Courts & Media Law Journal

303


Eyeing the Supreme Court’s Challenge

Figure W5.1

Figure W5.2

3. Witness: Camera Position 2 In the next series, the camera has been moved to a different position, to the right of the witness/subject and close to the side of the courtroom. In Figure W5.1, the eye tracker marker shows that the subject/witness is looking at the television camera, located to his right. It is clear that the subject/ witness can easily pan from the seated lawyer to the camera and vice versa. But even where the witness/subject is looking at the seated lawyer, the camera is still within the witness’ cone of vision, so distraction is still possible. Figure W5.2 shows the sitting lawyer as well as a standing lawyer, with the television camera again located to the right of the witness subject and close to the side of the courtroom. While the eye tracker shows that the subject/witness is looking at the camera, it is evident that both lawyers and the camera are all within the cone of vision of the subject/witness. Figure W5.3 again shows the sitting lawyer, with the television camera again in position near the witness/subject, this time along with a camera operator. Again, the subject/ witness can see the various courtroom lawyers and the television camera even if his focus is on the operator, without having to move his head left or right; and can be distracted by any of them.

Figure W5.3

304

Volume 1, Issue 3


Eyeing the Supreme Court’s Challenge

Limitations As has already been noted, this is a preliminary study meant to examine the feasibility of using eye tracking for television courtroom broadcasting distraction effects. But even in this role, there are some issues with the research that may limit applicability and replication of the results. Eye-Tracking Hardware. The eye tracker used for the demonstration was successful for the demonstration and proof of concept. However, the eye tracker used in these tests, like many eye trackers, is very conspicuous and would be very obvious to the courtroom participant wearing it, as well as to other courtroom participants. In addition, this type of eye tracker offers less flexibility to the wearer, again hindering the authenticity. This equipment would, therefore, not be the best type of eye tracker to use for the in-court experiment.166 Also, the individual participant wearing the eye tracker is obviously aware that they are wearing it, and also that it had to be individually calibrated to their eyes. However, there are other types of eye trackers which may not have to be so calibrated, and/or which do not have to be “worn” by the subject courtroom participant. It may be possible to design an experiment where a subject’s eyes can be tracked in a less or non-conspicuous way, without the subject wearing special equipment described above. Additional Distractions. While this research, unlike much of prior courtroom distractions studies, occurred in an actual courtroom, it was unrealistic in the sense that the courtroom was not crowded with a judge and other court officials, attorneys, and observers. Any of these could be distractions in themselves, or the hubbub could also make the camera and operator, if present, less conspicuous than they were in the sparsely-populated courtroom setting in which this test was conducted.

Conclusion

T

his first in-court demonstration of eye tracking proved that the concept of eye tracking for television courtroom broadcasting effects research is feasible. Yet this is only the first step. The next stage is to design and undertake an actual television courtroom broadcasting effects experiment (and ultimately experiments) using eye tracking.167 Much of the current psychological research on videotaped confessions is motivated by the Supreme Court treatment of confession evidence cases.168 It is surprising that more research has not been undertaken into the effects of television courtroom broadcasting, given that the Supreme Court first called for empirical research studies as far back as the Estes case.169 In their article Judge Kozinski and Johnson concluded with the suggestion that “[w]e must consider the issue [of television courtroom broadcasting] again, in light of the world today.”170 However, I suggest that we must also do so in light of our recognition of current research and current research methods. If other and new forms of research are relevant, whether comparative or even unrelated, we must still embrace them. This includes technologies such as eye tracking and fields such as psychology.

166. Such equipment can, however, be used for other equally valuable research of television courtroom broadcasting. 167. Of course, eye tracking is only one of many methods for researching television courtroom broadcasting effects. Many methods need to be used in conjunction in order to build up the body of research knowledge required. 168. Schmidt, supra note 111, at 74. 169. Estes v. Texas, supra, 381 U.S. 532 (1965); see supra p. 279. 170. Kozinski & Johnson, supra note 58, at 1112. Reynolds Courts & Media Law Journal

305


Eyeing the Supreme Court’s Challenge

Future Research In this article, eye tracking has been demonstrated to be a viable method of researching television courtroom broadcasting effects, particularly in-court distraction effects. This demonstration, as well as the issues raised by the U.S. Supreme Court in its rulings on the issue of cameras in courtrooms, can form the basis for planning and designing such an experiment. Such an experiment could involve any one of the courtroom participants referred to above in a single tracking experiment. Ultimately, all courtroom participants should be the focus of research. In addition, a mock trial could be constructed, or the relevant portion of the trial relevant to the particular courtroom participant being tested could be used. For example, to examine distraction of witnesses, a case could be enacted for a number of witnesses/subjects. The group of test witnesses/subjects could be split into one group with no television camera present, and a second group with a television camera present. Variations of this type of experiment could include, for example, varying the camera location, varying the type and size and camera, and varying between only a camera and a camera plus a camera operator. Further variation and experiment can be designed for all of the courtroom participants. A further layer of experimentation would involve comparing self-reports and eye tracking: are the self-reports verified, or are there discrepancies? If there are differences, what are the implications for the general distraction effect research previously conducted? Can we rely upon it? Eye-tracking experiments such as those above could be used to test for distraction effect of television cameras. Fundamentally, they can also be used to research and measure location issues and camera size/type issues. These are important issues that have never been researched to date.

Addressing the Research Challenge The time has come to address the research challenge set by the Supreme Court, and also to ensure that the research effort into the effects of television courtroom broadcasting advances beyond the criticism that “[s]ocial scientists measure the intelligence of monkeys more effectively than courts have attempted to ascertain the effects of television in the courtroom.�171 It is time to move beyond limited self-reports and opinion reports and embrace modern empirical research, including eye-tracking technology.

171. Joel Hirschhorn, Cameras in the Courtroom? No, 7:3 Barrister 7, 9 (Spring 1980). Hirschhorn argued against courtroom cameras in Florida v. Chandler. See supra, p. 284.

306

Volume 1, Issue 3


Jury Instructions for the Modern Age:

A 50-State Survey of Jury Instructions on Internet and Social Media Eric P. Robinson1 Juror use of the Internet and social media during trial has been a growing concern of the bench and bar for the past several years. A recent study by Reuters of reported cases on Westlaw found 90 verdicts called into question since 1999 because of jurors’ online activities. More than half the cases are from the last two years. In 28 of the cases, 21 of them since January 2009, new trials were granted or verdicts were overturned.2 Juror use of this media may take several forms: jurors conducting independent research on the case on the Internet; sending e-mails, text messages, Tweets or other communication conveying developments in a trial or deliberations; or using the camera feature of mobile technology to record courtroom proceedings. In response to this growing concern — and a growing number of mistrials in some cases due to improper juror use of technology — several states have adopted or proposed rules or statutes that would explicitly limit such activity by jurors. Courts have also responded to this trend with including partial or complete bans of cellphones and similar electronic devices from courtrooms and even entire courthouses. Many jurisdictions have also altered their jury instructions to tell jurors about the limitations on use of these devices during voir dire, trial and deliberations. And while many of these efforts have been comprehensive within their respective jurisdictions, the overall American landscape is speckled with inconsistency and outright silence on the vexing question of how best to handle the growing problems of smart devices and social media as they 1. Special thanks to Journal Board of Editors member Nancy Rapoport, a professor at the University of Nevada, Las Vegas William S. Boyd School of Law; Jeanne F. Price (Director), Jennifer Gross, and Chad Schatzle of the Wiener-Rogers Law Library at the Boyd School of Law; Blake F. Quackenbush, a student at the Boyd law school; Adeen Postar, Deputy Director of the Pence Law Library at the American University Washington College of Law; Karen Salaz, District Administrator of Colorado’s 19th Judicial District; Leigh Anne Hiatt, Public Information Officer with the Office of Public Information of Administrative Office of the Courts in Kentucky; and Dean P. Land, Legal Publications Attorney, Oregon State Bar, for their assistance with the research for this article. Thanks also to University of Neavada Associate Professor Swart Cheifet for his comments. 2. Brian Grow, As jurors go online, U.S. trials go off track, Reuters Legal, Dec. 8, 2010, http://www. reuters.com/article/2010/12/08/internet-jurors-idUSN0816547120101208. Reynolds Courts & Media Law Journal

307


Jury Instructions for the Modern Age impact the administration of U.S. justice. This article lists and categorizes the formal and informal efforts that federal and state courts have taken to manage the social media-jury instruction problem, primarily through the additions thier court rules and to official and unofficial (but widely accepted) jury instructions. Such updated instructions are labeled as “modern.” in this article. But several jurisdictions have not updated their jury instructions, which are labeled as “archaic.” “A” jurisdictions have no official or unofficial jury instructions. This article also cites cases in which courts have confronted use of the Internet or social media by jurors, and dealt with the consequences. Besides illuminating the rules, these cases provide examples of the issues that have arisen in this developing area of the law.

A Brief History of Jury Instructions

I

n English common law, juries were generally given free rein to decide cases as they saw fit, without instruction from the judge.3 This carried over to the American colonies, sincebecause jurors were considered to “need no Explanation [since their] good sense & understanding will Direct ye as to them.”4 If the jury was given instructions, they were advisory only, and could be ignored.5 But once the U.S. Supreme Court clearly delineated the different roles of judges and juries — with the former deciding on the applicable law, and the latter determining the facts6 — it became necessary for the court to instruct jurors about the law that they were to apply in a particular case.7 Thus, towards the end of the 19th Century, it became more common for attorneys and judges to craft instructions for juries in each trial.8 Judges began compiling their own sets of instructions from prior cases that had been upheld by appellate courts.9 The legal profession soon came to realize that instructing the jury could involve a lot of work and duplication of effort. With every trial, judges and attorneys would spend time drafting the instructions. Another problem was that instructions were often inconsistent from judge to judge. And judges were often reversed for instructional error.10

This sentiment led to the creation of the first formal set of pattern jury instructions, compiled in the 1940s by the judges of the California Superior Court in Los Angeles. These instructions became widely used in that county, then came into use statewide, albeit with-

3. Peter Tiersma, The Rocky Road to Legal Reform: Improving the Language of Jury Instructions, 66 Brook. L. Rev. 1081, 1082 (2001). 4. Harvey S. Perlman, Pattern Jury Instructions: The Application of Social Science Research, 65 Neb. L. Rev. 520, 524-25 (1986), citing W. Nelson, Americanization of the Common Law 26 (1975) (quoting Grand Jury Charge, 1 Cushing Papers (1759) (collection of Mass. Hist. Soc’y, Boston)). 5. “[Colonial] juries were crucially instructed that they had the right to decide questions of law as well as of fact. . . . Juries could disobey . . . instructions, construe the law independently, or even set aside the law entirely to render verdicts according to conscience.” Jeffrey Abramson, We, the Jury: The Jury System and the Ideal of Democracy 9 (1994), quoted in Judith L. Ritter, Your Lips Are Moving . . . But The Words Aren’t Clear: Dissecting The Presumption That Jurors Understand Instructions, 69 Mo. L. Rev. 163, 189 n.154 (2004). 6. See Sparf v. United States, 156 U.S. 51, 102-03 (1895). 7. Ritter, supra note 5, at 189. 8. Tiersma at 1083; see also Alan D. Woodlief, Jr., An Introduction to the North Carolina Pattern Jury Instructions, 10(2) N.C. Bar J. 8, 9 (Summer 2005). 9. Id. 10. Id.

308

Volume 1, Issue 3


Jury Instructions for the Modern Age out official endorsement.11 The Illinois Supreme Court took notice of these developments, and in 1955 created a committee to formulate its own set of pattern jury instructions.12 The resulting Illinois Pattern Jury Instructions had official status, and the court in fact mandated their use.13 Other states then followed,14 in a movement that was hailed as “one of the great strides in the modernization and preservation of our judicial system.”15 But there were problems with the instructions, which were primarily crafted by attorneys and judges, and were often not intelligible to lay jurors.16 The result was another movement to redraft jury instructions in “plain English,” so that they would be comprehensible to non-lawyers.17 This article reviews available “model, “pattern,” “recommended,” “standard,” and “uniform” civil and criminal jury instructions, including both official and non-official compilations. There is no signifigance to the label (model, pattern, etc.) given to the instructions.18 Although a state may have one or more sets of standardized jury instructions for use in civil and criminal trials, these instructions are often merely suggestions, which may be modified on a case-by-case basis.19

Jury Instructions and Social Media

C

ourts have held that “it is essential” that the court admonish the jury about their duties and responsibilities, including the duty to remove themselves from outside information about a case, and that this admonition be given at the start of trial and throughout the proceeding; particularly before recesses, especially overnight ones.20 But failure to instruct a jury not to discuss the case outside the courtroom is not plain error requiring reversal, where there is no evidence that the jury was subject to outside influence.21

11. James A. Dooley, Illinois Pattern Instructions: An Appraisal by a Plaintiff ’s Attorney, 1963 U. of Ill. Law Forum 586, 589 (1963). 12. Don Musser, Instructing the Jury – Pattern Jury Instructions, 6 Am. Jur. Trials 923 (2003). 13. Id. See Ill. Sup. Ct. R. 25-1(a) (1963).The rule is now Ill. Sup. Ct. R. 239(a) (2011). 14. Philip H. Corboy, Pattern Jury Instructions-Their Function and Effectiveness, 32 Insurance Council J. 57, 65 (1965). 15. Harry I. Hannah, Jury Instructions: An Appraisal by a Trial Judge, 1963 U. of Ill. Law Forum 627, 643 (1963). 16. J. Alexander Tanford, The Law and Psychology of Jury Instructions, 69 Neb. L. Rev. 71, 79-83 (1990); Ritter, supra note 5, at 190. 17. Tanford at 91-93. 18. See, e.g., Robert C. Power, Reasonable and Other Doubts: The Problem of Jury Instructions, 67 Tenn. L. Rev. 45, 55 n.49 (1999). 19. “[T]he pattern instructions are not sacrosanct, a fact that has been borne out by the appellate rejection of pattern instructions, as well as appellate recognition of the fact that a legally ‘correct’ instruction can change its stripes when applied to a given case. Although not greeted with open arms in many courtrooms, opportunity awaits the attorney who specially crafts instructions for his case or who proposes modifications in existing instructions to tailor them and remove misleading or offending materials.” Pike & Fischer, BNA Criminal Practice Manual, §. 131.101. (2) (2009). See also People v. Mata, 133 Cal. App.2d 18, 21, 283 P2d 372 (Cal. 1955) (“Standard jury instructions “are no more sacrosanct than any others. Unless a particular instruction fits the evidentiary situation and presents a fair and impartial picture of the issues, it should not be given.”) 20. United States v. Williams, 635 F.2d 744, 745-46 (8th Cir. 1990). 21. United States v. Nelson, 102 F.3d 1344, 1348 (4th Cir. 1996), cert. denied, 520 U.S. 1203 (1997); accord Baldwin v. Blackburn, 653 F.2d 942, 948 (5th Cir.1981); United States v. Arciniega, 574 F.2d 931, 93233 (7th Cir.), cert. denied, 437 U.S. 908 (1978); United States v. Hart, 729 F.2d 662, 667-68 (10th Cir. 1984). Reynolds Courts & Media Law Journal

309


Jury Instructions for the Modern Age As courts have become increasingly aware—and wary—of jurors using social media and other Internet tools to communicate to or from the courthouse or do research into cases during trial or deliberations, several jurisdictions have adopted or proposed model jury instructions which explicitly tell jurors not to access information about cases on the Internet, or discuss the case on the Internet or social media.22 These instructions, based in large part on previous instructions that admonished jurors not to speak to others about a case, and to avoid newspaper, television, and radio coverage, attempt to cover a wide variety of juror use of the Internet. This may take several forms, including jurors conducting independent research on the case on the Internet; sending e-mails, text messages, tweets or other communication conveying developments in a trial or deliberations; or using the camera or audio features of mobile technology to record courtroom proceedings. Some courts have also dealt with cases in which jurors have used the Internet or social media during trial, and have had to determine the impact and remedy for such use.

Overview of Current Instructions This article reviews available civil and criminal jury instructions23 – including official and non-official compilations, as well as statutes or court rules imposing instructions – for the federal24 and state courts, and the local courts in the District of Columbia.25 Among the federal courts, six circuits have not compiled civil jury instructions26 and three have not compiled criminal instructions,27 although the U.S. Judicial Conference has formulated an instruction for civil and criminal cases in all federal courts. All states have compiled civil instructions, and all but three have compiled criminal instructions.28 Of the jurisdictions with instructions, two federal circuits and 21 states have “archaic” civil instructions, meaning that they either do not have any language regarding juror access to the media and discussions about cases, have only general language on the issue, or have language that only mentions traditional media (newspapers, radio, and television). In criminal instructions, five federal circuits have such archaic instructions, as do 13 states. Five federal circuits have “modern” civil instructions that either mention the Internet generally, mention both the Internet and social media, or mention specific web and social media sites and services. Seventeen states also have such modern civil instructions. On the criminal side, four federal circuits have modern instructions, while three have archaic ones. Among the states, 12 have archaic instructions, while 34 have updated their criminal instructions to account for the modern media landscape. 22. Even when adopted by a court, “pattern instructions are merely helpful suggestions to assist the practitioner and the trial court in formulating instructions and are not necessarily binding on the trial court nor automatically approved for its use. Nevertheless, some pattern instructions have been specifically approved.” 1 Fed. Jury Prac. & Instr. § 7:2 (6th ed. updated 2011). 23. Jury instructions were collected from a variety of sources, incouding Weslaw,; Lexis; Internet resources; published resources in the Wiener-Rogers Law Library at the Boyd School of Law; the Pence Law Library at the American University Washington College of Law; and the Library of Congress; and court public information officers at individual courts. 24. Some federal district courts have compiled their own sets of instructions. These are not analyzed in this article. 25. In the remainder of this article, the District of Columbia’s local courts will be counted among state courts. 26. These are the First, Second, Fourth, Sixth, Tenth, and District of Columbia Circuits. 27. These are the Second, Fourth, and District of Columbia Circuits.. 28. The three states without any sort of criminal instructions are Alabama, Delaware, and Rhode Island.

310

Volume 1, Issue 3


Jury Instructions for the Modern Age Among the federal circuits, only one – the Eighth – has civil instructions that include a rationale for the restrictions on juror behavior. The Eleventh Circuit includes such a rationale in its criminal instructions. Among the states, ten include the rationale in their civil instructions, while seven include it in their criminal instructions. Civila No Instructions Archaic Instructions No Language General Language Newspaper / Radio / TV Modern Instructions Internet Internet / Social Media Specific Sites Includes Rationale

Federal 6b 2 0 1 1 5b 2 2 0b 1b

State 0 20 0 18 2 31 5 9 17 10

Criminala Federal State 3b 4 5 12 0 2 2 6 3 4 4b 35 1 7 3 13 0b 15 1b 7

a. E  xcept for the U.S. Judicial Conference instruction, general provisions applicable to both civil and criminal cases are included in both categories. b. T  his includes individual circuits’ instructions, but excludes the admonition formulated by the U.S. Judicial Conference for all federal civil and criminal trials. That admonition would fall into the “Specific Sites” and “Includes Rationale” categories.

The Need for Modern Jury Instructions The remainder of this article lays out these instructions by circuit and state, examining how they deal with jurors discussing or researching cases, especially through the use of the Internet and social media. Each section also includes descriptions of cases in which such behavior by jurors has been a factor. It is clear that jurisdictions without jury instructions specifically addressing use of the Internet and social media by jurors must address this issue directly. But several of the cases involving juror use of social media have occured in jurisdictions with modern jury instructions which admonish jurors to not discuss or research the case online, showing that such instructions alone are not sufficient. The court should give this instruction at the very start of jury service, and repeat it often throughout voir dire, trial and deliberations. These instructions cannot be a mere admonishment. They should also explain the reasons behind the restrictions, and should also remind jurors of the consequences of impropet behavior–not only to themselves, but to the court system.

Federal General Instructions In late January 2010 the U.S. Judicial Conference, which sets policies for all federal courts except the Supreme Court, sent all federal district judges suggested jury instructions on “juror use of electronic communication technologies” during trial.29 The suggested instruc 29. See U.S. Jud. Conf., Comm. on Ct. Admin. & Case Mgmt, Proposed Model Jury Instrs.: The Use of Electronic Technology to Conduct Research on or Communicate about a Case (Dec. 2009), available at http://www.uscourts.gov/newsroom/2010/DIR10-018.pdf. Reynolds Courts & Media Law Journal

311


Jury Instructions for the Modern Age tions are apparently intended for use in both civil and criminal cases.30 The suggested instructions prior to trial provide: You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in the case, and the individuals or corporations involved in the case. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Please do not try to find out information from any source outside the confines of this courtroom. Until you retire to deliberate, you may not discuss this case with anyone, even your fellow jurors. After you retire to deliberate, you may begin discussing the case with your fellow jurors, but you cannot discuss the case with anyone else until you have returned a verdict and the case is at an end. I hope that for all of you this case is interesting and noteworthy. I know that many of you use cell phones, Blackberries, the internet and other tools of technology. You also must not talk to anyone about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone, through e-mail, 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 Facebook, My Space, LinkedIn, and YouTube.31

As the jury prepares to deliberate, the suggested instruction is: During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet service, or any text or instant messaging service; or any internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.32

Criminal Instructions

The Federal Judicial Center33 has its own set of pattern criminal jury instructions. Because these instructions were last updated in 1988, they do not reference social media or the Internet.34 But they do speak of avoiding “news reports of the trial,” and admonish jurors not to “discuss the case with anyone.”35 In the absence of updated instructions from the court, a leading treatise on federal courts practice has stepped into the void with updated instructions that mention the Internet and social media.36 30. Many federal courts ban or place limits on whether “smart phones” can be brought into courthouses at all. For a summary of these policies, see Administrative Office of U.S. Courts, Considerations in Establishing A Court Policy Regarding the Use of Wireless Communication Devices (2010 Update) (memo), n.d. [2010], available at http://www.wired.com/images_blogs/threatlevel/2011/03/dir11-019_pg1-8.pdf. 31. Id. 32. Id. 33. “The Federal Judicial Center is the research and education agency of the federal judicial system.” Fed. Jud. Ctr., About the Federal Judicial Center, available via http://www.fjc.gov/. 34. .See Pattern Crim. Jury Instr. 1 (Fed. Jud. Ctr. 1988) (preliminary instruction); Pattern Crim. Jury Instr. 5 (Fed. Jud. Ctr. 1988) (recess instruction). 35. Pattern Crim. Jury Instr. 5 (Fed. Jud. Ctr. 1988). 36. Compare e.g., 1A Fed. Jury Prac. & Instr. § 10:01 (6th ed.) (opening instruction including admonition to avoid Internet coverage) with 3 Fed. Jury Prac. & Instr. § 101.01 (5th ed.) (opening instruction admonishing jurors to avoid “news articles that might be published about the case,” as well as “any television or radio comments about the trial.”)

312

Volume 1, Issue 3


Jury Instructions for the Modern Age Do not read any news accounts about this case in any newspaper or on the internet or watch any such news accounts on television or listen to any such news accounts on the radio. You must not consider anything you may have read or heard about the case outside of this courtroom whether before or during the trial or during your deliberations. Do not attempt any independent research or investigation about this matter. Your decision in this case must be based solely and exclusively upon the evidence received during this trial, my final instructions, and not upon anything else.37 During this recess and all other recesses, you must not discuss this case with anyone. This includes your family, other jurors, and anyone involved in the trial. If anyone attempts in any way to talk to you about this trial during a recess, it is your obligation to tell me immediately. Do not watch or listen to any news reports concerning this trial on television or on radio and do not read any news accounts of this trial in a newspaper or on the internet. Do not speak at all with any of the parties, the witnesses, or the attorneys. You are required to keep an open mind until you have heard all of the evidence in this case, the closing arguments of counsel, and the final instructions of law provided by the Court.38 *** I am advised that reports about this trial are appearing in the newspapers [and] [or] on radio] [and] [or] on television] [and] [or] on the internet]. The person who wrote or is reporting the story may not have listened to all of the testimony as you have, may be getting information from people who you may not see here in court under oath and subject to cross-examination, may emphasize an unimportant point, or may simply be wrong. Please do not read anything or listen to anything or watch anything with regard to this trial. The case must be decided by you solely and exclusively on the evidence which is received here in court.39

Circuit Courts In addition to pattern instructions for federal courts as a whole, most of the individual circuit courts have created sample—but non-binding40—jury instructions for federal trial courts in their geographic areas.

First Circuit – Civil: No Instructions;  Criminal: Archaic Civil Instructions

The First Circuit has not promulgated model instructions for general civil trials.41

Criminal Instructions The latest criminal pattern jury instructions promulgated by the First Circuit were published in 1998, and do not address the Internet or other forms of new media. To insure fairness, you as jurors must obey the following rules: *** Fourth, during the trial do not talk with or speak to any of the parties, lawyers or witnesses involved in this case—you should not even pass the time of day with any of them. It is important not only that

37. 1A Fed. Jury Prac. & Instr. § 10:01 (6th ed.) (opening instruction). 38. 1A Fed. Jury Prac. & Instr. § 11:02 (6th ed.) (admonitions at court recesses–short form). 39. 1A Fed. Jury Prac. & Instr. § 11:08 (6th ed.) (publicity during trial). 40. See. e.g., U.S. v. Norton, 846 F.2d 521, 524-25 (8th Cir. 1988) (“The Model Instructions … are not binding on the district courts of this circuit, but are merely helpful suggestions to assist the district courts.”); accord U.S. v. Williams, 20 F.3d 125, 131 (5th Cir. 1994). 41. Judge D. Brock Hornby of the federal district court in Maine has drafted proposed pattern jury instructions for use in particular types of cases in the First Circuit, but none have been adopted by the court. None of the proposed instructions, which are available at http://www.med.uscourts.gov/history/ mainehistory.htm, deal with juror communications or research. Reynolds Courts & Media Law Journal

313


Jury Instructions for the Modern Age you do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the lawsuit sees you talking to a person from the other side—even if it is simply to pass the time of day—an unwarranted and unnecessary suspicion about your fairness might be aroused. If any lawyer, party or witness does not speak to you when you pass in the hall, ride the elevator or the like, it is because they are not supposed to talk or visit with you; Fifth, do not read any news stories or articles about the case or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it; Sixth, do not do any research, such as consulting dictionaries or other reference materials, and do not make any investigation about the case on your own; …42

Cases In a 2009 decision, the First Circuit reversed a drug distribution conspiracy conviction because a juror had conducted online research because she disagreed with the other jurors’ definitions of the term “attempt to possess with the intent to distribute narcotics.”43 In another 2009 case, a juror in a wrongful death case sent Facebook “friend” requests to two of the plaintiffs, and sent an email to their attorney in which the juror said that the juror found out about the plaintiffs’ “partying ways” through the site. District Judge D. Brock Hornby denied a motion for a new trial, after determining that the juror visited the site after deliberations, and that the information did not play a role in the verdict.44

Second Circuit – Civil: No Instructions;  Criminal: No Instructions The Second Circuit has not adopted model civil or criminal jury instructions.

Cases During the 2001 New York trial of suspects in the 1998 terrorist bombings of American embassies in Africa, a juror allegedly researched the concept of “aiding and abetting” on the Internet: a question that the jury had asked the court during deliberations.45 After their conviction, the defendants sought a new trial on this and other grounds,46 but the motion was denied.47 More recently, ExxonMobil sought a new trial in a federal case in which a jury ordered the company to pay $104 million to New York City for contaminating groundwater, once the court discovered that at least five jurors, one of whom was removed before deliberations, had done independent research online. The judge denied the motion, but observed that such situations were a growing problem.48

42. Pattern Crim. Jury Instr. 1st Cir. 1.07 (1998) (preliminary instruction). 43. U.S. v. Bristol-Martir, 570 F.3d 29, 41-44 (1st Cir. 2009). 44. Wilgus v. F/V Sirius, Inc., Civil Action No. 08-225-P-H (D. Maine, order Oct. 27, 2009) (denying plaintiffs’ motion for new trial). 45. See Phil Hirschkorn, Bombings jury seeks info on ‘aiding and abetting’, CNN, May 21, 2001, http:// archives.cnn.com/2001/LAW/05/21/embassy.bombings/. 46. See Jailed embassy bombers seek new trial, Associated Press, Jan. 17, 2003, available at http://mg.co.za/ article/2003-01-17-jailed-embassy-bombers-seek-new-trial. 47. U.S. v. Bin Laden, 2005 WL 287404, *2-3 (S.D.N.Y. 2005), aff ’d on other grounds, In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93 (2nd Cir. 2008), cert. denied, Al-’Owhali v. U.S., 129 S. Ct. 2778, 174 L. Ed. 2d 273 (U.S. June 8, 2009), cert. denied, El-Hage v. U.S., 130 S. Ct. 1050, 175 L. Ed. 2d 928 (U.S. 2010). 48. In re Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation 739 F. Supp. 2d 576, 609-13 (S.D.N.Y. 2010).

314

Volume 1, Issue 3


Jury Instructions for the Modern Age Search engines have indeed created significant new dangers for the judicial system. It is all too easy for a juror to find out more than he or she should by typing a few carefully chosen words into a search engine.49

Third Circuit – Civil: Modern;  Criminal: Modern Civil Instructions The Third Circuit has updated its Model Civil Jury Instructions to add language about the Internet, but not as comprehensively as it has updated the criminal instructions. For example, the preliminary instruction on juror conduct reads, … Second, do not read or listen to anything related to this case that is not admitted into evidence. By that I mean, if there is a newspaper article or radio or television report relating to this case, do not read the article or watch or listen to the report. In addition, do not try to do any independent research or investigation on your own on matters relating to the case or this type of case. Do not do any research on the internet, for example. You are to decide the case upon the evidence presented at trial.50

The Circuit also updated its admonition against accessing information about the trial, with the revised admonition requesting that jurors “… not read, watch or listen to any news reports of the trial, or conduct any research or investigation, including on the Internet.”51 A note to this instruction recommends that it “may be modified to be given at the beginning of the trial, as well as before a recess.”52

Criminal Instructions The Third Circuit also updated its Model Criminal Jury Instructions in November 2009, effective in January 2010, to add language about the Internet to the admonition against accessing information about the trial. (7) Do not use a computer, cellular phone, or other electronic devices while in the courtroom or during deliberations. These devices may be used during breaks or recesses for personal uses, but may not be used to obtain or disclose information about this case. (8) Do not do any research or make any investigation on your own about any matters relating to this case or this type of case. This means, for example, that you must not visit the scene, conduct experiments, consult reference works or dictionaries, or search the internet for additional information, or use a computer, cellular phone, or other electronic devices, or any other method, to obtain information about this case, this type of case, the parties in this case, or anyone else involved in this case. You must decide this case based only on the evidence presented in the courtroom and my instructions about the law. It would be improper for you to try to supplement that information on your own.53

Cases A Pennsylvania state senator on trial for federal corruption charges sought to remove a juror who had posted updates on the trial on Facebook, Twitter, and his blog during 49. Id. at 609. 50. Model Civ. Jury Instr., 3rd Cir. 1.3 (2010). 51. Model Civ. Jury Instr., 3rd Cir. 2.14 (2010) (recess admonition). 52. Id., Comment. See also Instruction 1.3 (providing similar admonitions as part of a broader instruction at the beginning of the case). 53. Mod. Crim. Jury Instr. 3rd Cir. 1.03 (Preliminary Instructions Before Opening Statements; Conduct of the Jury). See also Mod. Crim. Jury Instr. 3rd Cir. 2.01 (2010) (including Internet in recess admonition to avoid coverage of case); Mod. Crim. Jury Instr. 3rd Cir. 9.04 (2010) (same in admonition for overnight or weekend recesses); Mod. Crim. Jury Instr. 3rd Cir. 2.36 (2010) (including Internet in general admonition to avoid coverage of highly-publicized case); Mod. Crim. Jury Instr. 3rd Cir. 9.01 (including Internet research in admonition for alternate jurors). Reynolds Courts & Media Law Journal

315


Jury Instructions for the Modern Age deliberations.54 After an in camera hearing during which the juror was questioned about his general media and social media use during the trial, the court refused to remove the juror, finding that the juror “is one conscientious guy trying very much to comply with all the rules and regulations that I’ve established, more so [than] I would ever imagine that a juror would do. And I think that, you know, I’ve heard him and I don’t have any trouble with keeping him on the jury.”55 The defense objected, but was overruled. After the senator was convicted, he moved for a new trial on this and other grounds. The court denied the motion, finding that the defendant had not shown any outside influence on the juror that could have affected the verdict.56 Shortly after the judge denied the new trial motion, Philadelphia magazine reported that the jurors heard about the questions regarding the Internet postings.57 This led the defense to renew its motion for a new trial, which was similarly denied.58 The defendant has appealed this ruling.59

Fourth Circuit – Civil: No Instructions;  Criminal: No Instructions The Fourth Circuit has not adopted model civil or criminal jury instructions.

Fifth Circuit – Civil:Archaic ;  Criminal:Archaic Civil Instructions The Fifth Circuit’s Pattern Civil Jury Instructions, last updated in 2006, refer to avoiding “news reports of the trial,”60 and do not mention the Internet or social media.61

Criminal Instructions The Fifth Circuit’s pattern criminal instructions last updated in 2001, similarly do not mention the Internet or social media. Now that the trial has begun, you must not read about it in the newspapers or watch or listen to television or radio reports of what is happening here. The reason for these rules, as I am certain you will understand, is that your decision in this case must be made solely on the evidence presented at the trial.62 54. U.S. v. Fumo, No. 06-319, 2009 WL 1688482, at *58, 2009 U.S. Dist. LEXIS 51581 (E.D. Pa. June 17, 2009). The postings were discovered by a local television station. The juror saw the television report (accidently, he said, after watching an entertainment program), and immediately began deleting the posts. Id. 55. Id. (quoting transcript of In Camera Hearing 34, held Mar. 16, 2009). 56. Id., 2009 WL 1688482 at *67. 57. See Ralph Cipriano, Power: Fumo, After the Fall, Philadelphia magazine, July 9, 2009, at 4 (internet version), http://www.phillymag.com/articles/power_vince_fumo_after_the_fall/page4 (p. 4 of 6). The magazine article also reported that one juror’s co-workers made her aware of excluded evidence. Id. at 3. 58. U.S. v. Fumo, 639 F.Supp.2d 544 (E.D. Pa. 2009). 59. U.S. v. Fumo, No. 09-3389 (3d Cir. filed Aug. 18, 2009). Fumo’s appeal was filed as a countersuit to the government’s appeal of the sentence imposed. See U.S. v. Fumo, No. 09-3388 (3d Cir. filed Aug. 18, 2009). Both appeals are pending. See also Robert Moran, Fumo lawyers file brief seeking new trial, Phil. Inquirer, Feb. 11, 2011, http://articles.philly.com/2011-02-11/news/28350489_1_fumo-lawyers-eric-wuest-samuel-j-buffone. 60. Pattern Civil. Jury Instr. 5th Cir. 2.1 (2006) (cautionary instruction for first recess). 61. See also Pattern Civil. Jury Instr. 5th Cir. 1.1 (2006) (preliminary instructions admonishing jurors to “not read any newspaper account of this trial or listen to any radio or television newscast concerning it.”). 62. Pattern Crim. Jury Instr. 5th Cir. 1.01 (2001).

316

Volume 1, Issue 3


Jury Instructions for the Modern Age

Sixth Circuit – Civil: No Instructions;  Criminal: Archaic Civil Instructions The Committee on Pattern Jury Instructions of the District Judges Association of the Sixth Circuit has not drafted pattern civil jury instructions.

Criminal Instructions The Sixth Circuit’s Pattern Criminal Jury Instructions do not include any admonishment to the jury to avoid news coverage of the case. Instruction 8.02 reminds jurors that they must make their decision based only on the evidence presented in court, and admonishes them to “not conduct any experiments inside or outside the jury room; … not bring any books, like a dictionary, or anything else with you to help you with your deliberations; … not conduct any independent research, reading or investigation about the case; and … not visit any of the places that were mentioned during the trial.”63

Cases Lawyers for the family of a Kentucky man who died after being Tasered by police sought to have a 2010 verdict for one of the officers in a federal civil rights lawsuit64 set aside after a juror reported that two jurors had consulted Taser International’s website and used information from the site to persuade other jurors that Tasers are not lethal.65 The court denied the motion on the grounds that there was substantial evidence that the officer who was exonerated did not Taser the decedent.66

Seventh Circuit – Civil: Modern;  Criminal: Archaic Civil Instructions The Seventh Circuit has no formal pattern preliminary instructions for civil trials, “in light of the concern that such a set might increase disputes over the way in which preliminary instructions should be worded.”67. But the committee still provides sample preliminary instructions, with the proviso that “the sample instructions did not receive the same scrutiny from the Committee as the pattern instructions have received.”68 The sample instruction regarding juror conduct does not reference the Internet, stating that “you must not read any news stories or articles or listen to any radio or television reports about the case or about anyone who has anything to do with it,” and that “you must 63. Committee on Pattern Criminal Jury Instructions. District Judges Association, Sixth Circuit; Pattern Criminal Jury Instruction 8.02 (2009), available at http://www.ca6.uscourts.gov/internet/ crim_jury_insts/pdf/crmpattjur_full.pdf. 64. The jury was unable to reach a verdict regarding the other officer. Andrew Wolfson, Taser-Related Death Verdict Challenged Over Juror’s Conduct, Louisville Courier-J., Jan. 9, 2010. 65. Id. 66. Meinhart v. Campbell, Civil No. 07-465 (memorandum and order Jan. 13, 2010), available at http:// www.archive.org/download/gov.uscourts.kywd.62630/gov.uscourts.kywd.62630.80.0.pdf. After being set for retrial, the claims against the other police officer were settled. Docket, Meinhart v. Campbell, supra, available at http://ia700408.us.archive.org/14/items/gov.uscourts.kywd.62630/gov.uscourts. kywd.62630.docket.html. Another case in the Sixth Circuit, U.S. v. Wheaton, 426 F. Supp. 2d 666 (N.D. Ohio 2006), aff ’d, 517 F. 3d 350 (6th Cir. 2008), involved a juror using mapping software on a laptop to determine distances during deliberations in a drug conspiracy case. The case is not included here because the software and maps were both resident on the computer, and did not involve Internet access. The appeals court upheld the trial court’s refusal to grant a new trial. 67. Fed. Civ. Jury Instr., 7th Cir. (2010), App. at 172 (Appendix), available at http://www.ca7.uscourts. gov/7thcivinstruc2005.pdf. 68. Id. Reynolds Courts & Media Law Journal

317


Jury Instructions for the Modern Age not do any research, such as consulting dictionaries, searching the Internet or using other reference materials, and do not make any investigation about the case on your own.”69 But in 2005 the Seventh Circuit’s Committee on Pattern Civil Jury Instructions added a reference to the Internet to its “during trial” jury instruction regarding “what is evidence.” The amended provision reads, Second, anything that you may have seen or heard outside the courtroom is not evidence and must be entirely disregarded. [This includes any press, radio, Internet or television reports you may have seen or heard. Such reports are not evidence and your verdict must not be influenced in any way by such publicity.]70

The admonition for recesses reminds jurors to avoid “news reports,” without further specification.71 But the trial instruction on news coverage has been amended to have the court note that “reports about this trial [or about this incident] are appearing in the newspapers and [or] on radio and television [and the internet],” and to explain that this information may not be reliable because “[t]he reporters may not have heard all the testimony as you have, may be getting information from people whom you will not see here under oath and subject to cross examination, may emphasize an unimportant point, or may simply be wrong.”72

Criminal Instructions The criminal instructions have not been similarly updated. They still provide that “anything that you may have seen or heard outside the courtroom is not evidence and must be entirely disregarded. [This includes any press, radio, or television reports you may have seen or heard.]”73

Eighth Circuit – Civil: Modern;  Criminal: Archaic Civil Instructions The Eighth Circuit updated its juror conduct instructions for civil trials in 2009 to add Internet research to its list of prohibited juror conduct,74 and rewrote the provisions in 2011 to include social media and to give jurors an explicit rationale for the prohibitions. Thus, the instructions prior to voir dire now provide: Members of the Jury Panel, if you have a cell phone, PDA, Blackberry, smart phone, I-phone and any other wireless communication device with you, please take it out now and turn it off. Do not turn it to vibration or silent; power it down. [During jury selection, you must leave it off.] (Pause for thirty seconds to allow them to comply, then tell them the following:) If you are selected as a juror, (briefly advise jurors of your court’s rules concerning cellphones, cameras and any recording devices). I understand you may want to tell your family, close friends, and other people about your participation in this trial so that you can explain when you are required to be in court, and you should warn them not to ask you about this case, tell you anything they know or think they know about it, or discuss this case in your presence. You must not post any information on a social network, or communicate with anyone, about the parties, witnesses, participants, [claims]

69. Fed. Civ. Jury Instr., 7th Cir. (2010), App. at 184 (Appendix) (sample preliminary instructions). 70. Fed. Crim. Jury Instr., 7th Cir. 1.06 (2005), available at http://www.ca7.uscourts. gov/7thcivinstruc2005.pdf. 71. Fed. Civ. Jury Instr., 7th Cir. 2.01 (2010). 72. Fed. Civ. Jury Instr., 7th Cir. 2.02 (2010). 73. Fed. Crim. Jury Instr., 7th Cir. 1.06 (1998), available at http://www.ca7.uscourts.gov/pjury.pdf. 74. See e.g., 8th Cir. Model Civil Jury Instr. 1.05 (2009), available at http://www.juryinstructions.ca8.uscourts.gov/civ_manual_2011.pdf.

318

Volume 1, Issue 3


Jury Instructions for the Modern Age [charges], evidence, or anything else related to this case, or tell anyone anything about the jury’s deliberations in this case until after I accept your verdict or until I give you specific permission to do so. If you discuss the case with someone other than the other jurors during deliberations, you may be influenced in your verdict by their opinions. That would not be fair to the parties and it would result in a verdict that is not based on the evidence and the law. While you are in the courthouse and until you are discharged in this case, do not provide any information to anyone by any means about this case. Thus, for example, do not talk face-to-face or use any electronic device or media, such as the telephone, a cell or smart phone, camera, recording device, Blackberry, PDA, computer, the Internet, any Internet service, any text or instant messaging service, any Internet chat room, blog, or Website such as Facebook, MySpace, YouTube, or Twitter, or in any other way communicate to anyone any information about this case until I accept your verdict or until you have been excused as a juror. Do not do any research — on the Internet, in libraries, in the newspapers, or in any other way — or make any investigation about this case on your own. Do not visit or view any place discussed in this case and do not use Internet programs or other device to search for or to view any place discussed in the testimony. Also, do not research any information about this case, the law, or the people involved, including the parties, the witnesses, the lawyers, or the judge until you have been excused as jurors. The parties have a right to have this case decided only on evidence they know about and that has been presented here in court. If you do some research or investigation or experiment that we don’t know about, then your verdict may be influenced by inaccurate, incomplete or misleading information that has not been tested by the trial process, including the oath to tell the truth and by cross-examination. Each of the parties is entitled to a fair trial, rendered by an impartial jury, and you must conduct yourself so as to maintain the integrity of the trial process. If you decide a case based on information not presented in court, you will have denied the parties a fair trial in accordance with the rules of this country and you will have done an injustice. It is very important that you abide by these rules. Failure to follow these instructions could result in the case having to be retried. [Are there any of you who cannot or will not abide by these rules concerning communication with others during this trial?] [Failure to follow these rules can result in you being held in contempt.] (And then continue with other voir dire.)75

There is a shorter admonition and explanation in the instructions for use at the end of voir dire, which include the statement that “‘Do not discuss’ also means do not e-mail, send text messages, blog or engage in any other form of written, oral or electronic communication, as I instructed you before.”76 While noting that “many of the items in this instruction can be deleted as duplicative of comments made in Instruction No. 0.01,”77 the preliminary instructions on jury conduct provide further detailed admonitions and rationales. Fifth, … You must not communicate with anyone or post information about the parties, witnesses, participants, [claims] [charges], evidence, or anything else related to this case. … If you discuss the case with someone other than the other jurors during deliberations, it could create the perception that you have already decided the case or that you may be influenced in your verdict by their opinions. That would not be fair to the parties and it may result in the verdict being thrown out and the case having to be retried. During the trial, while you are in the courthouse and after you leave for the day, do not provide any information to anyone by any means about this case. Thus, for example, do not talk face-to-face or use any electronic device or media, such as the telephone, a cell or smart phone, Blackberry, PDA, computer, the Internet, any Internet service, any text or instant messaging service, 75. 8th Cir. Model Civil Jury Instr. 0.01 (2011), available at http://www.juryinstructions.ca8.uscourts. gov/civ_manual_2011.pdf. 76. 8th Cir. Model Civil Jury Instr. 0.02 (2011), available at http://www.juryinstructions.ca8.uscourts. gov/civ_manual_2011.pdf. 77. 8th Cir. Model Civil Jury Instr. 1.05 (2011), available at http://www.juryinstructions.ca8.uscourts. gov/civ_manual_2011.pdf. Reynolds Courts & Media Law Journal

319


Jury Instructions for the Modern Age any Internet chat room, blog, or Website such as Facebook, MySpace, YouTube, or Twitter, or in any other way communicate to anyone any information about this case until I accept your verdict. Sixth, do not do any research — on the Internet, in libraries, in the newspapers, or in any other way — or make any investigation about this case on your own. Do not visit or view any place discussed in this case and do not use Internet programs or other device to search for or to view any place discussed in the testimony. Also, do not research any information about this case, the law, or the people involved, including the parties, the witnesses, the lawyers, or the judge. Seventh, do not read any news stories or articles in print, or on the Internet, or in any blog, about the case, or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it. [In fact, until the trial is over I suggest that you avoid reading any newspapers or news journals at all, and avoid listening to any television or radio newscasts at all. I do not know whether there might be any news reports of this case, but if there are, you might inadvertently find yourself reading or listening to something before you could do anything about it. If you want, you can have your spouse or a friend clip out any stories and set them aside to give to you after the trial is over. I can assure you, however, that by the time you have heard the evidence in this case, you will know what you need to decide it.. The parties have a right to have the case decided only on evidence that has been introduced here in court. If you do some research or investigation or experiment that we don’t know about, then your verdict may be influenced by inaccurate, incomplete or misleading information that has not been tested by the trial process, including the oath to tell the truth and by cross-examination. All of the parties are entitled to a fair trial, rendered by an impartial jury, and you must conduct yourself so as to maintain the integrity of the trial process. If you decide a case based on information not presented in court, you will have denied the parties a fair trial in accordance with the rules of this country and you will have done an injustice. Remember, you have taken an oath to abide by these rules and you must do so. It is very important that you abide by these rules. [Failure to follow these instructions may result in the case having to be retried and could result in your being held in contempt.]78

A shorter version of this admonition, including the rationale and consequences of outside research, are also included in the instruction for recesses.79

Criminal Instructions The circuit’s criminal instructions, however, have not been updated: they do not contain any mention of the Internet or social media. For example, the instruction on jury conduct provides: … do not read any news stories or articles about the case, or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it. [In fact, until the trial is over I suggest that you avoid reading any newspapers or news journals at all, and avoid listening to any TV or radio newscasts at all. I do not know whether there might be any news reports of this case, but if there are you might inadvertently find yourself reading or listening to something before you could do anything about it. If you want, you can have your spouse or a friend clip out any stories and set them aside to give you after the trial is over. It is important for you to understand that this case must be decided by the evidence presented in the case and the instructions I give you.] Sixth, do not do any research or make any investigation on your own about any matter involved in this case. By way of examples, that means you must not read from a dictionary or a text book or an encyclopedia or talk with a person you consider knowledgeable or go to the Internet for information about some issue in this case. In fairness, learn about this case from the evidence you receive here at the trial and apply it to the law as I give it to you.80 78. 8th Cir. Model Civil Jury Instr. 1.05 (2011), available at http://www.juryinstructions.ca8.uscourts. gov/civ_manual_2011.pdf. 79. See 8th Cir. Model Civil Jury Instr. 2.01 (2011), available at http://www.juryinstructions.ca8.uscourts.gov/civ_manual_2011.pdf. 80. Model Crim. Jury Instr., 8th Cir. 1.08 (2009); see also Model Crim. Jury Instr., 8th Cir. 2.01 (2009)

320

Volume 1, Issue 3


Jury Instructions for the Modern Age

Ninth Circuit – Civil: Modern;  Criminal: Modern The Ninth Circuit was among the first federal appellate courts to have jury instructions on Internet use.

Civil Instructions The court’s civil instruction regarding juror conduct was amended in 2009 and now provides: [B]ecause you must decide this case based only on the evidence received in the case and on my instructions as to the law that applies, you must not be exposed to any other information about the case or to the issues it involves during the course of your jury duty. Thus, until the end of the case or unless I tell you otherwise: Do not communicate with anyone in any way and do not let anyone else communicate with you in any way about the merits of the case or anything to do with it. This includes discussing the case in person, in writing, by phone or electronic means, via e-mail, text messaging, or any Internet chat room, blog, Web site or other feature. This applies to communicating with your fellow jurors until I give you the case for deliberation, and it applies to communicating with everyone else … Because you will receive all the evidence and legal instruction you properly may consider to return a verdict: do not read, watch, or listen to any news or media accounts or commentary about the case or anything to do with it; do not do any research, such as consulting dictionaries, searching the Internet or using other reference materials; and do not make any investigation or in any other way try to learn about the case on your own. The law requires these restrictions to ensure the parties have a fair trial based on the same evidence that each party has had an opportunity to address. A juror who violates these restrictions jeopardizes the fairness of these proceedings[, and a mistrial could result that would require the entire trial process to start over]. If any juror is exposed to any outside information, please notify the court immediately.81

Criminal Instructions The parallel criminal instruction contains the same language, with a comment noting that “[t]his instruction has been updated specifically to instruct jurors against accessing electronic sources of information and communicating electronically about the case, as well as to inform jurors of the potential consequences if a juror violates this instruction.”82 A further admonition in the jury instruction regarding deliberations tells jurors to neither communicate about the case, including “discussing the case in person, in writing, by phone or electronic means, via email, text messaging, or any Internet chat room, blog, website or other feature…”, nor to research the case by “consulting dictionaries, searching the Internet or using other reference materials; … or in any other way …”83

Tenth Circuit – Civil: No Instructions;  Criminal: Modern Civil Instructions The Tenth Circuit has not promulgated model instructions for civil trials.

Criminal Instructions The Tenth Circuit issued revised criminal jury instructions in 2011 that added language specifically warning jurors against discussing the case or accessing case information online. (recess admonition). 81. Model Civ. Jury Instr., 9th Cir. 1.12 (2009). 82. Model Crim. Jury Instr., 9th Cir. 1.8 and Comment (2010); see also Model Crim. Jury Instr., 9th Cir. 2.1 (2010) (recess instruction). 83. Model Crim. Jury Instr., 9th Cir. 1.8 (2010). Reynolds Courts & Media Law Journal

321


Jury Instructions for the Modern Age … Do not use the internet or any other form of electronic communication to provide any information. Simply put, do not communicate with anyone about the trial until your verdict is received. … Let me add that during the course of the trial you will receive all the evidence you properly may consider to decide the case. Because of this, you should not attempt to gather any information or do any research on your own. Do not attempt to visit any places mentioned in the case, either actually or on the internet, and do not in any other way try to learn about the case outside the courtroom.84

Eleventh Circuit – Civil: Archaic ;  Criminal: Modern Civil Instructions85 The Eleventh Circuit’s pattern civil instructions, which are much more limited and were last updated in 2005, do not mention the Internet or social media.86

Criminal Instructions The 2010 version of the 11th Circuit’s pattern criminal instructions reference specific Internet services and sites in the admonition against juror discussion and research of the case. It also gives jurors a detailed explanation of the reasoning behind the rules. 4. Do not visit or view the premises or place where the charged crime was allegedly committed, or any other premises or place involved in the case. And you must not use Internet maps or Google Earth or any other program or device to search for a view of any location discussed in the testimony. 5. Do not read, watch, or listen to any accounts or discussions related to the case which may be reported by newspapers, television, radio, the Internet, or any other news media. 6. Do not attempt to research any fact, issue, or law related to this case, whether by discussions with others, by library or Internet research, or by any other means or source. In this age of instant electronic communication and research, I want to emphasize that in addition to not talking face to face with anyone about the case, you must not communicate with anyone about the case by any other means, including by telephone, text messages, email, Internet chat, chat rooms, blogs, or social-networking websites such as Facebook, My Space, or Twitter. You must not provide any information about the case to anyone by any means whatsoever, and that includes posting information about the case, or what you are doing in the case, on any device or Internet site, including blogs, chat rooms, social websites, or any other means. You also must not use Google or otherwise search for any information about the case, or the law that applies to the case, or the people involved in the case, including the defendant, the witnesses, the lawyers, or the judge. It is important that you understand why these rules exist and why they are so important: Our law does not permit jurors to talk with anyone else about the case, or to permit anyone to talk to them about the case, because only jurors are authorized to render a verdict. Only you have been found to be fair and only you have promised to be fair — no one else is so qualified. Our law also does not permit jurors to talk among themselves about the case until the court tells them to begin deliberations, because premature discussions can lead to a premature final decision. Our law also does not permit you to visit a place discussed in the testimony. First, you can’t be sure that the place is in the same condition as it was on the day in question. Second, even if it were in the same condition, once you go to a place discussed in the testimony to evaluate the evidence in light of what you see, you become a witness, not a juror. As a witness, you may now have a mistaken view of the scene that neither party may have a chance to correct. That is not fair. Finally, our law requires that you not read or listen to any news accounts of the case, and that you not attempt to research any fact, issue, or law related to the case. Your decision must be based solely 84. Pattern Crim. Jury Instr., 10th Cir. 1.01 (2011) (preliminary instruction). 85. See, e.g., Pattern Civ. Jury Instr., 11th Cir. Note 1 (2005). 86. See, e.g., Pattern Civ. Jury Instr., 11th Cir. Note 1 (2005).

322

Volume 1, Issue 3


Jury Instructions for the Modern Age on the testimony and other evidence presented in this courtroom. Also, the law often uses words and phrases in special ways, so it’s important that any definitions you hear come only from me, and not from any other source. It wouldn’t be fair to the parties for you to base your decision on some reporter’s view or opinion, or upon other information you acquire outside the courtroom. These rules are designed to help guarantee a fair trial, and our law accordingly sets forth serious consequences if the rules are not followed. I trust that you understand and appreciate the importance of following these rules, and in accord with your oath and promise, I know you will do so.87

Cases A federal district court judge declared a mistrial in March 2009 in a complex prosecution involving Internet pharmacies selling prescription drugs with scant medical supervision, after discovering that 10 of the 12 jurors had done independent Internet research about the case.88 As one of the lawyers involved told a local newspaper, “They Googled defendants’ names. They Googled definitions of medical terms. There was a lot of Googling going on.”89 The government later dropped the prosecution.90 In the prosecution of HealthSouth Corporation founder and former Chief Executive Officer Richard Scrushy and former Alabama governor Don Eugene Siegelman for bribery and conspiracy, the convicted defendants appealed on various grounds, including allegations that the jurors were exposed to extrinsic evidence from the Internet.91 The district court found that while the jurors had seen an unredacted indictment from the case92 that one juror found on the court’s online docket system and information concerning the role and obligations of the jury foreperson from the court’s website, the exposure was harmless beyond a reasonable doubt.93 The appeals court affirmed on this point,94 but the Supreme Court remanded for reconsideration in light of its decision in Skilling v. United States.95 On remand, the 11th Circuit again affirmed the district court on this point.96

D.C. Circuit – Civil: No Instructions;  Criminal: No Instructions The Circuit for the District of Columbia has not adopted model civil or criminal jury instructions. Neither has the Federal District Court for the District of Columbia, the only federal trial court within the D.C. Circuit’s jurisdiction.

87. Pattern Crim. Jury Instr., 11th Cir. 1 (2010) (preliminary instruction) 88. United States v. Hernandez, Crim. No. 07-60027 (S.D. Fla. mistrial declared March 10, 2009); see Deirdra Funcheon, Jurors and Prosecutors Sink a Federal Case Against Internet Pharmacies, Broward Palm Beach NewTimes, Apr. 23, 2009, http://www.browardpalmbeach.com/2009-04-23/news/jurors-and-prosecutors-sink-a-federal-case-against-internet-pharmacies/1/. 89. Id. 90. See Helfant v. U.S., No. 09-60838-CIV, 2009 WL 2258324, at *1 (S.D. Fla. July 29, 2009) (denying motion by co-defendant to vacate guilty plea after government dropped case against remaining defendants). 91. United States v. Siegelman, 561 F.3d 1215 (11th Cir. 2009), reh’g and reh’g en banc denied, 347 F. App’x. 556 (11th Cir. 2009), vacated, 130 S. Ct. 3542, 177 L. Ed. 2d 1120 (2010) (remanding for reconsideration in light of Skilling v. United States, 561 U.S. ----, 130 S.Ct. 2896, 177 L. Ed. 2d 619 [2010]). 92. The court had given the jury a redacted version of this document, after the court granted a government motion to remove multiplicitous charges that could have resulted in both defendants being convicted twice for the same offense. Id. at 1239. 93. Id. 94. Id. 95. 130 S. Ct. 3542, 177 L. Ed. 2d 1120 (2010) (remanding for reconsideration in light of Skilling v. United States, 561 U.S. ----, 130 S.Ct. 2896, 177 L. Ed. 2d 619 [2010]). 96. U.S. v. Siegelman, 640 F.3d 1159, 1183-84 (11th Cir. 2011). Reynolds Courts & Media Law Journal

323


Jury Instructions for the Modern Age

Alabama – Civil: Modern;  Criminal: No Instructions Civil Instructions Alabama’s Pattern Jury Instructions Committee recently approved changes to the state’s civil instructions telling jurors to not discuss or investigate cases, to also admonish against the use of the Internet and social media.97 Until you have heard all of the evidence in the case and have received my instructions, you must not talk about the case with anyone or let anyone talk about it with you. You must keep an open mind and not decide the case until I tell you to decide the case. You must not discuss the case among yourselves or with anyone until the case is over. This means that you must not discuss the case in person, in writing, on the phone, or on the Internet. You must not “tweet,” “blog,” or communicate by any other means, anything about the case during the trial and deliberations. If members of your family or friends or anyone else asks you about the case, you should tell them that the judge told you not to discuss it. The lawyers, parties and witnesses are not allowed to talk to you, and you can’t talk to them during the trial. Even a conversation that has nothing to do with the case would look bad. If the participants in the trial fail to greet you or talk with you during the trial, it is because of this rule.98 *** You must decide this case based upon the evidence presented in court and the law I give you. No juror should attempt to make an individual investigation of the facts, the law, or of the location(s) testified about. You cannot gather evidence or research the law for yourself or anybody else. You must not investigate the facts, the law, or any party, or witness, on the Internet or otherwise, [visit the scene of the accident] [attempt to inspect or examine any object or property unless that object or property has been received in evidence and the inspection is made in the court room or in the jury room]. We have learned that some jurors in other cases have tried to research the law or the facts of a case so they can learn more about the case they are hearing. A juror cannot consider facts that are not in evidence. If there is anything about this case or similar cases in the news media or on the Internet, you must not read, listen to, or watch the report. Do not use the Internet or any other method to investigate any aspect of the case. This is because your verdict must be based only on the legal evidence that is presented in the courtroom. Any juror misconduct can cause your verdict to be thrown out. If you learn that any juror has violated this instruction, you must tell me or one of the attendants about it.99

The state’s provision regarding jurors consulting outside materials has also been revised to bar Internet research. There may be some words or phrases or terms used in the trial of the case that need to be defined. The Court will give to you the proper definition of these words or terms. The legal definition may be different from that which you customarily give them. If this should happen, you must accept the Court’s definition. In no event should you seek any definition of any word or phrase by consulting any book, dictionary, encyclopedia, the Internet, or any other source. It would be highly improper for you to do so.100

97. See Diane Babb Maughan, 12 Jurors and the Internet, Birmingham Bar Ass’n. Bull., Summer 2010, at 9, available at http://www.birminghambar.org/docs/bulletin-summer2010.pdf. 98. Ala. Pattern Jury Instr., Civ. 1.11 (2nd ed. 2010). 99. Ala. Pattern Jury Instr. Civ. 1.125 (2d ed. 2009). 100. Ala. Pattern Jury Instr. Civ. 1.22 (2010).

324

Volume 1, Issue 3


Jury Instructions for the Modern Age

Criminal Instructions Alabama does not have pattern criminal jury instructions.

Alaska – Civil: Archaic;  Criminal: Modern Civil Instructions The Alaska Civil Pattern Jury Instructions, which were last revised in 1999, include only the admonishment to jurors that “you must decide this case based only on the evidence presented here in court.”101 The civil instruction for recesses similarly does not mention the Internet.102

Criminal Instructions Alaska’s Criminal Pattern Jury Instructions include a list of new media sources in the admonition against jurors discussing the case or accessing information outside of court, and gives a rationale for this rule: You, as jurors, must decide this case based solely on the evidence presented here in court [unless I specifically instruct you otherwise]. This means that during the trial you must not obtain any outside information from ANY source about this case or the people involved in it. The reason for this instruction is that the parties, the court, and the public have a right to know what evidence you, as jurors, are using to decide this case. If you decide the case based on information you find on the Internet or through communicating with friends, this right will be violated. In recent years, because of the growth in electronic communications, an increasing number of cases have had to be retried, at great expense, because of juror misconduct in obtaining outside information from the Internet, blogs, e-mail, electronic messaging, social networking sites, and other sources. I need to be assured that each of you will do everything you can to prevent such an unfortunate outcome from happening in this case. So, do not look up ANY information about this case or the people, places, or subjects involved in it from any source, including any public database, dictionary, the Internet, or other reference material. Do not look for information on-line or use a search engine like Google to obtain information. Do not read, listen to, or watch any newspaper, television, or radio report or commentary about the case. You must let me or my staff know immediately if you or any other jurors see or hear news reports or other reports, comments, or information about the case. Do not discuss with anyone, including friends, family, or co-workers, any subject connected with this case. “No discussion” also means no electronic communication – no emailing, texting, instant messaging, tweeting, blogging, chatting, or posting on Facebook, MySpace, or any other social networking site. You may tell people who need to know that you have been picked for the jury and how long the case may take. But do not discuss the case in any other way.103

The cautionary instruction to avoid news coverage of the case also mentions the Internet.104

Arizona – Civil: Modern;  Criminal: Modern Civil Instructions Arizona’s civil jury instructions, last revised in 2005, include only one reference to the Internet, in the general jury admonition about juror conduct. 101. Alaska Civ. Pattern Jury Instr. 1.05 (rev. 1999), available at http://www.courts.alaska.gov/insciv/01.05.doc. 102. Alaska Civ. Pattern Jury Instr. 1A.22 (rev. 1999), available at http://www.courts.alaska.gov/ insciv/01A.22.doc. 103. Alaska Crim. Pattern Jury Instr. 1.02 (2010), available at http://www.courts.alaska.gov/ins/1.02.doc. 104. Alaska Crim. Pattern Jury Instr. 1.03 (2011), available at http://www.courts.alaska.gov/ins/1.03.doc. Reynolds Courts & Media Law Journal

325


Jury Instructions for the Modern Age Do not do any research or make any investigation about the case on your own. Do not view or visit the locations where the events of the case took place. ‘Research’ includes doing things such as looking up words in a dictionary or encyclopedia, or using treatises or similar sources with respect to any of the issues involved in the case. Research also includes searching on the internet or using other electronic devices to obtain information. The reason for this is that you have to base any decision on the evidence that is produced here in the courtroom.105

Criminal Instructions The criminal instructions, updated in 2009, include a much more extensive discussion of juror use of the Internet and social media. … Arizona law prohibits a juror from receiving evidence not properly admitted at trial. Therefore, do not do any research or make any investigation about the case on your own. Do not view or visit the locations where the events of the case took place. Do not consult any source such as a newspaper, a dictionary, a reference manual, television, radio or the Internet for information. … Do not talk to anyone about the case, or about anyone who has anything to do with it, and do not let anyone talk to you about those matters, until the trial has ended, and you have been discharged as jurors. This prohibition about not discussing the case includes using e-mail, Facebook, MySpace, Twitter, instant messaging, Blackberry messaging, I-Phones, I-Touches, Google, Yahoo, or any internet search engine, or any other form of electronic communication for any purpose whatsoever, if it relates in any way to this case. This includes, but is not limited to, blogging about the case or your experience as a juror on this case, discussing the evidence, the lawyers, the parties, the court, your deliberations, your reactions to testimony or exhibits or any aspect of the case or your courtroom experience with anyone whatsoever, until the trial has ended, and you have been discharged as jurors. Until then, you may tell people you are on a jury, and you may tell them the estimated schedule for the trial, but do not tell them anything else except to say that you cannot talk about the trial until it is over. One reason for these prohibitions is because the trial process works by each side knowing exactly what evidence is being considered by you and what law you are applying to the facts you find. As I previously told you, the only evidence you are to consider in this matter is that which is introduced in the courtroom. The law that you are to apply is the law that I give you in the final instructions. This prohibits you from consulting any outside source. If you have cell phones, laptops or other communication devices, please turn them off and do not turn them on while in the courtroom. You may use them only during breaks, so long as you do not use them to communicate about any matter having to do with the case. You are not permitted to take notes with laptops, Blackberries, tape recorders or any other electronic device. You are only permitted to take notes on the notepad provided by the court. Devices that can take pictures are prohibited and may not be used for any purpose. ...106

Arkansas – Civil: Modern;  Criminal: Modern Civil Instructions The Arkansas model jury instructions for civil trials include a lengthy “cautionary instruction” that tells jurors to not talk about the case amongst themselves before deliberations, to not talk to anyone else or let anyone else talk to them about the case, and to not read or listen to news reports about the case. The instruction then turns to the Internet and other new media: … Sixth, many of you have cell phones, computers, and other electronic devices. You must not use any device to search the internet or to find out anything about this case. You must decide this case only on the evidence presented in the courtroom. You must not communicate with anyone, including family and friends, about this case, the people and places involved, or your jury service while this case is 105. Rev. Ariz. Jury Instr. (Civ.) 4th (2005), Prelim. Inst. No. 9, available at http://www.myazbar.org/ SecComm/Committees/CIJI/CIJI-PDF/Preliminary.pdf. 106. Rev. Ariz. Jury Instr. (Crim.) 3rd (2009), Prelim. Instr. 13, available at http://www.azbar.org/media/58829/preliminary_criminal_instr.pdf.

326

Volume 1, Issue 3


Jury Instructions for the Modern Age being tried. You must not disclose your thoughts about the case before you verbally, by telephone or through any, text or internet transmission or other electronic device prior to deliberations nor should you ask anyone in person, by telephone, text, internet or electronically for advice on how to decide this case. You must not read the newspapers, watch television reports or use a computer, cell phone, the internet, any electronic device, or any other means at all, to get information, definitions or research related to this case or the people and places involved in this case. This applies whether you are in the courthouse, at home, or anywhere else. Also you should not visit places mentioned in the trial or use the internet to look at maps, descriptions or pictures to see any place discussed during the trial. You alone have been chosen by the parties and sworn by this court to try this case. This case must be tried solely upon the evidence presented to you in court and not upon any information or impression, whether correct or not, which you might acquire on your own or from other people or sources. *** Eighth, if you have a cell phone, pager, or any other electronic device, you must turn them off while in the courtroom and during deliberation. You must not use any electronic device to talk about this case, including tweeting, texting, blogging, e-mailing, or posting information on a website, social network or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, about your jury service. Unless instructed otherwise, you can use communication devices only during recesses and only concerning matters totally unrelated to this case. If you desire you will be given a telephone number at which you can be contacted while court is in session in case of an emergency. All of us are depending on you to follow these rules, so that there will be a fair and lawful resolution to this case. The parties have entrusted their case to you and to no other person or entity. If you become aware of any violation of these rules you must notify court personnel of the violation.107

The admonition regarding electronic devices is repeated in the recess instruction: Many of you have cell phones, computers, and other electronic devices. You must not use any device to search the internet or to find out anything about this case. You must decide this case only on the evidence presented in the courtroom. You must not communicate with anyone, including family and friends, about this case, the people and places involved, or your jury service while this case is being tried. You must not disclose your thoughts about the case before you verbally, by telephone or through any, text or internet transmission or other electronic device prior to deliberations nor should you ask anyone in person, by telephone, text, internet or electronically for advice on how to decide this case. You must not read the newspapers, watch television reports or use a computer, cell phone, the internet, any electronic device, or any other means at all, to get information, definitions or research related to this case or the people and places involved in this case. This applies whether you are in the courthouse, at home, or anywhere else. Also you should not visit places mentioned in the trial or use the internet to look at maps, descriptions or pictures to see any place discussed during the trial. Do not use any electronic device to talk about this case, including tweeting, texting, blogging, e-mailing, or posting information on a website, social network or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, about your jury service. Unless instructed otherwise, you can use communication devices only concerning matters totally unrelated to this case.108

Criminal Instructions The Arkansas Model Criminal Jury Instruction for commencement of trial specifically admonishes jurors to not talk about the case or anyone involved with it amongst themselves or with others (including the parties, lawyers, or witnesses), or to tell others about the case.109 107. Ark. Model Jury Instr., Civil 101 (Dec. 2010). 108. Ark. Model Jury Instr., Civil 102 (Dec. 2010). 109. Ark. Model Jury Instr., Crim. 2d 100-A, œœ 2-5 (Apr. 2010). Reynolds Courts & Media Law Journal

327


Jury Instructions for the Modern Age The criminal instructions also tell jurors, “do not read any news stories or articles about the case, or about anyone involved with it, or listen to any radio or television reports about the case or anyone involved in it.”110 An optional addition to this admonition recommends that jurors avoid the media altogether: In fact, until the trial is over, I suggest that you avoid reading any newspapers or news journals at all, and avoid listening to any TV or radio newscasts at all. I do not know whether there might be any news reports of this case, but if there are you might inadvertently find yourself reading or listening to something before you could do anything about it. If you want, you can have your spouse or a friend clip out stories and set them aside to give you after the trial is over. I can assure you, however, that by the time you have heard the evidence in this case, you will know more about the matter than anyone will learn through the news media.111

The instructions also admonish jurors to “not do any research on the Internet or otherwise; or make any investigation about the case or the parties on your own.”112 Finally, the instruction includes two options regarding cell phones and other electronic devices, depending on whether the judge has banned such devices. The first of these, for use when such devices are banned from the courtroom, is a shortened version of the admonition in the civil instructions. Eighth, [if you have a cell phone, pager, or other communication device, you must turn that device off while in the courtroom. Unless instructed otherwise, you can use those devices only during recesses. You will be given a telephone number at which you can be contacted during the trial in case or an emergency]. [OR] [do not bring cell phones, pagers, or other communication devices to the courtroom. If someone need to contact you in an emergency, the court can receive messages that it will deliver to you. If you need to contact someone, the court will make a telephone available to you].113

The model instruction for recesses and adjournments repeats the language about talking with others, and about doing research on the Internet or otherwise.114 The admonitions regarding newspaper, radio, and television coverage are listed as optional,115 as are repetitions of the instructions regarding cell phones and other electronic devices.116

Cases After a jury had awarded $12.6 million to its opponent in a fraud case, Stoam Holdings, Inc. sought a new trial after its attorneys discovered that one juror had posted eight tweets during voir dire and trial. One the tweets was, “Ooh and don’t buy Stoam. Its bad mojo [sic] and they’ll probably cease to exist, now that their wallet is 12m lighter.” 117 Another said, “I just gave away TWELVE MILLION DOLLARS of somebody else’s money.”118 The court denied the motion, holding that the tweets did not show juror bias.119 110. Id., 100-A, ¶ 6. 111. Id. 112. Id., ¶ 7. 113. Id., ¶ 9. See also id., Note on Use. 114. Id.,100-B. 115. Id., 100-B(A). 116. Id., 100-B(B). 117. Jon Gambrell, Appeal Says Juror Sent ‘Tweets’ During 12.6M Case, Associated Press, March 13, 2009. 118. Id. 119. John G. Browning, When All That Twitters Is Not Told: Dangers Of The Online Juror, 73(1) Tex. Bar J.

328

Volume 1, Issue 3


Jury Instructions for the Modern Age

California – Civil: Modern;  Criminal: Modern Civil Instructions The Judicial Council of California Civil Jury Instructions, last updated in December 2010, include a preliminary instruction that specifically addresses Internet and new media usage as part of its admonition against discussing the case: This prohibition is not limited to face-to-face conversations. It also extends to all forms of electronic communications. Do not use any electronic device or media, such as a cell phone or smart phone, PDA, computer, the Internet, any Internet service, any text or instant-messaging service, any Internet chat room, blog, or Web site, including social networking websites or online diaries, to send or receive any information to or from anyone about this case or your experience as a juror until after you have been discharged from your jury duty. *** During the trial, do not read, listen to, or watch any news reports about this case. [I have no information that there will be news reports concerning this case.] This prohibition extends to the use of the Internet in any way, including reading any blog about the case or about anyone involved with it or using Internet maps or mapping programs or any other program or device to search for or to view any place discussed in the testimony. *** Do not do any research on your own or as a group. Do not use dictionaries, the Internet, or other reference materials.120

The passages of this instruction regarding electronic communications were added in the past few years.121

Criminal Instructions The criminal jury instructions include a similar provision in the cautionary admonitions instruction:122 During the trial, do not talk about the case or about any of the people or any subject involved in the case with anyone, not even your family, friends, spiritual advisors, or therapists. Do not share information about the case in writing, by email, by telephone, on the Internet, or by any other means of communication. You must not talk about these things with the other jurors either, until you begin deliberating. *** You must not allow anything that happens outside of the courtroom to affect your decision [unless I tell you otherwise]. During the trial, do not read, listen to, or watch any news report or commentary about the case from any source. Do not do any research on your own or as a group regarding this case. Do not use a dictionary(,/or) the Internet(./)[, or <insert other relevant means of communication>]. Do not investigate the facts or law. Do not conduct any tests or experiments, or visit the scene of any event involved in this case. If you happen to pass by the scene, do not stop or investigate.

216, 219 (March 2010), available at http://trendmag2.trendoffset.com/display_article.php?id=351124. 120. Jud. Council of Cal., Civ. Jury Instrs. [hereinafter CACI], No. 100 (2010), available at http://www. courtinfo.ca.gov/jury/civiljuryinstructions/documents/caci_20110101.pdf; see also CACI 5000 (2010) (admonition at conclusion of case). 121. This is based on a comparison of the 2010 instructions with the 2005 version. See CACI No. 100 (2005), available at http://www.courtinfo.ca.gov/reference/documents/civiljuryinst.pdf. The 2005 version included the Internet in the admonition against external research. 122. Such an initial instruction is required by Cal. Penal Code § 1122(a). Reynolds Courts & Media Law Journal

329


Jury Instructions for the Modern Age [If you have a cell phone or other electronic device, keep it turned off while you are in the courtroom and during jury deliberations. An electronic device includes any data storage device. If someone needs to contact you in an emergency, the court can receive messages that it will deliver to you without delay.]123

The research admonition is reiterated in Criminal Instruction 201.124

Other As of Jan. 1, 2010, the California Superior Court in San Francisco requires that all juror questionnaires include a cover sheet containing the following statement: “You may not do research about any issues involved in the case. You may not blog, Tweet, or use the Internet to obtain or share information.”125 The requirement was implemented after a jury pool of 600 had to be excused after it became clear that several of them had researched the case on the internet, and claimed that such research was not covered by the oral admonition that they had been given.126 The Superior Court in San Diego asks jurors to sign declarations saying that they will not use personal electronic and media devices to research or communicate about a case.127

Cases In June 2007, a California appellate court reversed a trial court’s refusal to grant a motion by a convicted burglary defendant to contact the jurors in his trial, after the jury foreman discussed the jury’s deliberations in the case on his blog.128 After questioning of the jurors who did not object to being contacted did not yield any useful information, the defendant renewed his motion for a new trial. The trial court denied this motion, and the appeals court affirmed in February 2009 on the grounds that “[u]nder the totality of the circumstances shown by this record, … we conclude the evidence does not raise a “substantial likelihood” that Juror No. 8 (or any other juror) was actually biased against [the defendant].”129 In January 2008, a juror who posted a picture of the weapon in a murder trial to his blog was held in contempt by a Superior Court judge, but no penalty was imposed after the judge determined that the blogging did not result in an unfair trial.130 In 2009, a California appeals court denied an appeal by a man of convicted of torture and other crimes, including spousal and child abuse offenses, who alleged that the jury was tainted by a juror’s online search for a definition of the term “great bodily injury.” When 123. Jud. Council of Cal., Crim. Jury Instr. [CALCRIM], No. 101 (2011), available at http://www. courtinfo.ca.gov/jury/criminaljuryinstructions/calcrim_juryins.pdf. 124. See CALCRIM No. 201 (2011). 125. See S.F. Super. Ct. Rule 7.2. available at http://www.sfsuperiorcourt.org/Modules/ShowDocument. aspx?documentid=2471. The cover sheet is available at http://sfsuperiorcourt.org/Modules/ShowDocument.aspx?documentid=2486. 126. Kate Moser, Court Lays Down Law on Jury Internet Use, The [San Fran.] Recorder, Sept. 9, 2009, available at http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202433656715. 127. Browning, supra note 117, at 220. 128. People v. McNeely, No. D048692, 2007 WL 1723711 (Cal. App., 4th Dist., Div. 1 June 14, 2007) (unpublished), reh’g denied (Cal. App., 4th Dist., Div. 1 July 3, 2007), rev. denied, No. S154577 (Cal. Sept. 12, 2007). 129. People v. McNeely, No. D052606, 2009 WL 428561 (Cal. App. 4th Dist. Feb. 23, 2009) (unpublished), rev. denied, No. S171530 (Cal. May 20, 2009). 130. Raul Hernandez, Juror held in contempt for blog of murder trial, Ventura County (Cal.) Daily Star, Jan. 23, 2008, http://www.vcstar.com/news/2008/jan/23/juror-held-in-contempt-for-blog-of-murder-trial.

330

Volume 1, Issue 3


Jury Instructions for the Modern Age asked about the research, the juror said that he “‘couldn’t find any definitive information,’” which is what he told other jurors.131 While the appeals court said that this was juror misconduct, it was not sufficient grounds for declaring a mistrial. Here, the only evidence before the trial court was that while Juror No. 63 attempted to find a definition of “great bodily injury” online, he came up with no information. This fact itself tends to rebut the presumption of prejudice because it supports the reasonable conclusion that no actual harm occurred from the search because no information was actually received from an extraneous source as a result of the search.132

Another appellate decision in 2009 affirmed a trial court’s denial of a new trial motion in a murder case, even though a juror was found to have blogged extensively about the case during the trial. One of the posts included information from Wikipedia on the difference between medical examiners and coroners, but the juror/blogger denied that this information affected his opinion of the defendant’s guilt or innocence.133 “Although Juror W. indisputably discussed the case while the matter was pending in violation of the court’s admonition, and thereby committed misconduct,” the appeals court concluded, “none of the discussions were directed at appellant or the substance of the case against him.”134 In February 2011, a trial court judge, after determining that a jury foreman had been posting updates to Facebook during a criminal gang beating trial, ordered the foreman to authorize Facebook to make the postings available to the judge for his review.135 The foreman appealed, and the California Supreme Court vacated the appellate court’s refusal to act on the trial court’s order.136 The case is now fully briefed and pending before the California Court of Appeals.137

131. People v. Hamlin, 170 Cal. App. 4th 1412, 1466 n.17, 89 Cal.Rptr.3d 402, 446 n.17 (2009). 132. Id. at 1466, 89 Cal. Rptr. 3d at 445-46. The court also rejected the defendant’s argument that “[u]nless a computer crashes before the search can go through, it is impossible to conduct an internet search of ‘great bodily injury’ and obtain no results at all,” did not demonstrate that the search had influenced the juror or showed that he was biased. Id. at 1467, 89 Cal. Rptr. 3d at 446. 133. People v. Ortiz, Crim. No. B205674, 2009 WL 3211030, *4 (Cal. App., 2d Dist. 2009) (unreported). 134. Id. at *6. 135. Andy Furillo, Juror ordered to turn over Facebook postings in Sacramento gang beating case, Sacramento (Cal.) Bee, Feb. 6, 2011, http://www.sacbee.com/2011/02/05/3379139/juror-ordered-to-turnover-facebook.html. Facebook had refused to honor the trial court’s subpoena for the posts, which led the judge to consider holding the company in contempt. See Rachel Costello, Court denies juror’s request to keep Facebook post private, News Media Update, Feb. 11, 2011, http://www.rcfp.org/newsitems/ index.php?i=11705; and Andy Furillo, Facebook’s off the hook, but juror posting case could go far, Sacramento (Cal.) Bee, Apr. 2, 2011, http://www.sacbee.com/2011/04/02/3522132/facebook.html. 136. Juror No. 1 v. Super. Ct. of Sacramento County, No. C067309 (Cal. App., 3d Dist. Feb. 10, 2011) (denying petition), vacated, No. S190544 (Cal. Mar. 30, 2011) (vacating the appeals court’s denial of the petition to prohibit the order requiring disclosure, and remanding with directions to issue an order directing the superior court to show cause why the relief sought in the petition should not be granted). The juror also filed a federal lawsuit to stop the disclosure on privacy grounds, but the federal court declined to intervene. See Juror No. 1 v. California, Civil No. 11-397 (E.D. Cal. Feb. 14, 2011) (order denying temporary restraining order). For a complete narrative of these cases, see Pamela MacLean, Jurors Gone Wild, Cal. Lawyer, Apr. 2011, http://www.callawyer.com/story.cfm?eid=914907&evid=1. 137. Juror No. 1 v. Super. Ct. of Sacramento County, No. C067309 (Cal. App., 3d Dist. filed Feb. 8, 2011) (docket showing that case is fully briefed as of May 12, 2011 available at http://appellatecases.courtinfo. ca.gov/search/case/dockets.cfm?dist=3&doc_id=1970078&doc_no=C067309). Reynolds Courts & Media Law Journal

331


Jury Instructions for the Modern Age

Colorado – Civil: Modern;  Criminal: Archaic General Instructions In 2010, Colorado’s Jury System Standing Committee adopted an admonition regarding juror use of social media, to be read to all jurors at the start of both civil and criminal trials.138 If you have a cell phone, pager or personal digital assistant, please turn it off while in the courtroom and during jury deliberations. Remember you are not allowed to communicate with anyone via any means about what is happening in the trial for the duration of the proceeding until a verdict is announced in court. During the course of the trial do not conduct independent research, view or listen to media reports, or access any information via the Internet or using any electronic tool, regarding this case, its participants, this type of case, or any related subject matter.139

The courts of Colorado’s 19th District have created a sign furthering this policy, to be posted in jury deliberation rooms. It has also been distributed statewide.140 Jurors are strictly prohibited from communicating any information regarding the trial during the course of jury duty. This prohibition includes all forms of electronic communication including: • cell phones, • e-mail, • text messaging, • tweeting, • blogging, • Internet chat rooms and • communicating about the case by way of any other social networking website, such as Facebook, My Space, LinkedIn, or YouTube. During the course of the trial it is vital that you do not conduct independent research. This prohibition includes researching this case, its participants, the type of case, definitions of words used in the courtroom, or any related subject matter including: • conducting any investigation on your own, • viewing or listening to media reports, • accessing any information via the Internet or any other electronic tool, • visiting any location mentioned in the trial, and • |accessing any books, dictionaries, encyclopedias, or any other reference sources.141

138. E-mail from Karen Salaz, District Administrator, 19th Judicial District, Colorado (July 10, 2011). See also Colo. Jury System Stdg. Comm., Minutes of Feb. 18, 2010 Meeting (2010), at 2 (3d item), available at http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Committees/Jury_System_Standing_Committee/Minutes%20of%202-18-10.pdf; see also Colo. Jury System Stdg. Comm., Minutes of Apr 29, 2010 Meeting (2010), at 2 (3d item), available at http://www. courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Committees/Jury_System_Standing_Committee/Minutes%20of%204-29-10.pdf. 139. Id. 140. Id. 141. Id.

332

Volume 1, Issue 3


Jury Instructions for the Modern Age

Civil Instructions Colorado’s civil jury instructions do not address the Internet or social media in their admonition to jurors about trial publicity. Do not discuss this case among yourselves, or with anyone else, or read, view, or listen to any reports about the case in the press, radio, or television, or form or express any opinion on the outcome.142

But the instructions do include the Internet in their admonition against juror research. You are not allowed to look at, read, consult, or use any material of any kind, including any dictionaries or medical, scientific, technical, religious, or law books, the internet, or any material of any type or description in connection with your jury service. You are not allowed to do any research of any kind about this case.143

Criminal Instructions After a major revision in 2008, Colorado’s criminal instructions reference the Internet and new media only obliquely, by referring to “any other media.” Jurors and potential jurors must not discuss the case with themselves or with anyone else until instructed further by the Court. You must not read, view or listen to any reports about the case on radio or television, or in the press or any other media. You should not form or express any opinion about the outcome of this matter until the Court instructs you to begin your deliberations.144

Cases A juror in a drug possession case that ended in a mistrial because of her refusal to vote for conviction was cited and found guilty of contempt, in part for researching the penalty that would have been imposed on the drug defendant had that defendant been found guilty.145 An appeals court reversed, but did not rule on the Internet research question because the trial court had used it as a basis of the contempt finding.146 In 2003, the Colorado Court of Appeals reversed a child abuse conviction in which a juror researched on the Internet and shared with fellow jurors the pharmacological description of the drug Paxil, which the defendant had testified she was taking at the time of the alleged crime.147 “In view of the problems and dangers associated with the unsupervised use of the Internet,” the court said, “trial courts should emphasize that jurors should not consult the Internet, or any other extraneous materials, at any time during the trial, including during deliberations.”148 In affirming the reversal, the Colorado Supreme Court wrote, 142. Colo. Sup. Ct., Comm. on Civ. Jury Inst., Colo. Jury Instr., Civ. [COLJI—Civ.] 1:1 (West 4th ed., updated Apr. 2010). 143. COLJI—Civ. 1.4; see also COLJI—Civ. 1.9 (reiteration in recess instruction) and COLJI—Civ. 4:1A (reiteration at start of deliberations). 144. Colo. Jury Instr. – Criminal. [COLJI—Crim.] (2008), chap. B (Criminal Jury Orientation, Examination and Selection Process), * 4, available at http://www.courts.state.co.us/userfiles/File/Court_ Probation/Supreme_Court/Committees/Criminal_Jury_Instructions/CHAPTER_BJuryOrientation. pdf; see also COLJI—Crim.C:10 (similar language in admonition on juror conduct), available at http:// www.courts.state.co.us/userfiles/File/Court_Probation/Supreme_Court/Committees/Criminal_Jury_ Instructions/CHAPTER_CGeneralInstructions.pdf. 145. The juror insisted that her Internet research did not violate the admonition to “not to speak to anyone about the case” because “obtaining information from the Internet did not violate that instruction because it was not tantamount to ‘speaking to anyone’ about the case.” People v. Kriho, 996 P.2d 158, 170 (Colo. App. 1999). 146. Id. 147. People v. Wadle, 77 P.3d 764 (Colo. App. 2003), aff ’d, 97 P.3d 932 (Colo. 2004). 148. Id. at 771. Reynolds Courts & Media Law Journal

333


Jury Instructions for the Modern Age “it is clear there existed at least a reasonable possibility that the extraneous information to which the jury was exposed influenced the verdict.”149

Connecticut – Civil: Modern;  Criminal: Modern Both the civil and criminal jury instructions in Connecticut—which state judges may use, but are not required to use—admonish jurors not to use the Internet during trial.

Civil Instructions The civil instructions provide: You may not perform any investigations or research or experiments of any kind on your own, either individually or as a group. ... Do not look anything up on the Internet concerning information about the case or any of the people involved, including the parties, the witnesses, the lawyers, or the judge. ... Do not go to the scenes where any of the events that are the subject of this trial took place or use Internet maps or Google Earth or any other program or device to search for or view any place discussed during the case. ... The same thing is true of any media reports you may come across about the case or anybody connected with the case. If you do come across any reports in the newspaper or a magazine, on TV, or any Internet site or “blog,” you may not read or watch them because they may refer to information not introduced here in court or they may contain inaccurate information. ... You may not communicate to anyone any information about the case. This includes communication by any means, such as text messages, email, Internet chat rooms, blogs, and social websites like Facebook, MySpace, YouTube, or Twitter.150

Criminal Instructions

This language is duplicated in the criminal jury instructions.151 The criminal instructions also include clear, concise explanations of the reasons behind the limits on use of social media. In addition, you may not talk to each other about the case until I tell you to do so, and that will not be until you have heard all the evidence, you have heard the closing arguments of the attorneys, and you have heard my instructions on the law that you are to apply to the facts you find to be true. Why is that? It may seem only natural that you would talk about the case as it is going on. The problem with that is, when people start discussing things, they take positions on them and express opinions which are often hard for them to change later on. So, if you were permitted to discuss the case while it’s going on, you might reach conclusions or express opinions before you have heard all the evidence or heard the final arguments of counsel or heard the law that you must apply. Your verdicts in the case might then be improperly influenced by the conclusions or opinions you or your fellow jurors have reached before you knew about all of the evidence or the law that will help you put that evidence in the proper context for your verdicts. What happens if these rules are violated by a juror? In some cases violations of the rules of juror conduct have resulted in hearings after trial at which the jurors have had to testify about their conduct. In some cases the verdict of the jury has been set aside and a new trial ordered because of jury misconduct. So, it is very important that you abide by these rules.152

149. 97 P.3d at 937. 150. State of Conn. Jud. Branch, Conn. Civ. Jury Instr. 1.1-1 (rev. 2009), available at http://www.jud. ct.gov/JI/civil/part1/1.1-1.htm. 151. See State of Conn. Jud. Branch, Conn. Crim. Jury Instr. 1.2-10 (rev. 2009), available at http:// www.jud.ct.gov/JI/Criminal/Part1/1.2-10.htm. 152. Id.

334

Volume 1, Issue 3


Jury Instructions for the Modern Age

Delaware – Civil: Archaic;  Criminal: No Instructions Civil Instructions

Except for a statement that “You should consider only the evidence in this case,”153 Delaware’s civil jury instructions contain no admonitions regarding accessing outside information, including information from the Internet.

Criminal Instructions

Delaware does not have a current set of standard criminal jury instructions.154

District of Columbia – Civil: Archaic;  Criminal: Modern Civil Instructions The civil jury instructions for the local District of Columbia courts do not include any admonition that jurors should not discuss cases, although they do include the statement “You may consider only the evidence properly admitted in the case.”155 There is no statement regarding trial publicity, online or off.156

Criminal Instructions The District’s criminal instructions do include an admonition against discussing cases, which specifically mentions the Internet and social media. The criminal instructions also mention trial publicity in both traditional and online media. In some cases, although not necessarily this one, there may be reports in the newspaper or on the radio, internet, or television concerning the case while the trial is going on. If there should be such media coverage in this case, you may be tempted to read, listen to, or watch it. You must not read, listen to, or watch such reports because you must decide this case solely on the evidence presented in this courtroom. If any publicity about this trial inadvertently comes to your attention during trial, do not discuss it with other jurors or anyone else. Just let me or my clerk know as soon after it happens as you can, and I will then briefly discuss it with you. You may not communicate with anyone not on the jury about this case. This includes any electronic communication such as email or text or any blogging about the case. In addition, you may not conduct any independent investigation during deliberations. This means you may not conduct any research in person or electronically via the internet or in another way.157

Florida – Civil: Modern;  Criminal: Modern In 2010, Florida added jury instructions specifically addressing juror use of social media during trials.158 The new instructions include statements to be given to a general juror pool, and before the start of voir dire in civil and criminal trials.

153. Del. Patt Jury Instr., Civ. § 3.2 (2000, rev. 2006), available at http://courts.delaware.gov/Superior/ pattern/patternjury_rev_81506.pdf. 154. It appears that such instructions were last compiled in 1974. See Del. Crim. Code: Pattern Jury Instrs. (1974). 155. D.C. Std. Civ. Jury Instrs., at 6, available at http://www.dcd.uscourts.gov/dcd/sites/dcd/files/Standard-JMF.pdf. 156. Id. 157. D.C. Crim. Jury Instr. 1.202, in Richard W. Stevens, ed., Crim. Jury Instrs. for the District of Columbia (5th ed. 2002, rev. 2010). 158. In Re: Standard Jury Instructions In Criminal Cases – Report No. 2010-01; and Standard Jury Instructions In Civil Cases – Report No. 2010-01, No. SC10-51 (Fla. 2010), available at http://www.floridasupremecourt.org/decisions/2010/sc10-51.pdf (amending criminal and civil jury instructions). Reynolds Courts & Media Law Journal

335


Jury Instructions for the Modern Age

Civil Instructions The additions to Floridaâ&#x20AC;&#x2122;s civil instructions include a Qualifications Instruction that outlines the restrictions on use of electronic devices to potential jurors. Many of you have cell phones, computers, and other electronic devices. Even though you have not yet been selected as a juror, there are some strict rules that you must follow about using your cell phones, electronic devices and computers. You must not use any device to search the Internet or to find out anything related to any cases in the courthouse. Between now and when you have been discharged from jury duty by the judge, you must not provide or receive any information about your jury service to anyone, including friends, co-workers, and family members. You may tell those who need to know where you are that you have been called for jury duty. If you are picked for a jury, you may tell people that you have been picked for a jury and how long the case may take. However, you must not give anyone any information about the case itself or the people involved in the case. You must also warn people not to try to say anything to you or write to you about your jury service or the case. This includes face-to-face, phone or computer communications. In this age of electronic communication, I want to stress that you must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, about your jury service. You must not disclose your thoughts about your jury service or ask for advice on how to decide any case. After you are called to the courtroom, the judge will give you specific instructions about these matters. A judge will tell you when you are released from this instruction. All of us are depending on you to follow these rules, so that there will be a fair and lawful resolution of every case.159

The civil instructions also include an instruction reminding jurors to not use the Internet and social media when the trial participants are introduced at the start of voir dire. In order to have a fair and lawful trial, there are rules that all jurors must follow. A basic rule is that jurors must decide the case only on the evidence presented in the courtroom. You must not communicate with anyone, including friends and family members, about this case, the people and places involved, or your jury service. You must not disclose your thoughts about this case or ask for advice on how to decide this case. I want to stress that this rule means you must not use electronic devices or computers to communicate about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages to or from anyone about this case or your jury service. You must not do any research or look up words, names, [maps], or anything else that may have anything to do with this case. This includes reading newspapers, watching television or using a computer, cell phone, the Internet, any electronic device, or any other means at all, to get information related to this case or the people and places involved in this case. This applies whether you are in the courthouse, at home, or anywhere else. All of us are depending on you to follow these rules, so that there will be a fair and lawful resolution to this case. Unlike questions that you may be allowed to ask in court, which will be answered in court in the presence of the judge and the parties, if you investigate, research or make inquiries on your own outside of the courtroom, the trial judge has no way to assure they are proper and relevant to the case. The parties likewise have no opportunity to dispute the accuracy of what you find or to provide rebuttal evidence to it. That is contrary to our judicial system, which assures every party the right to

159. See Fla. Std. Jury Instr., Civil, § 200, Qualifications Instruction (2010), available at http://www. floridasupremecourt.org/civ_jury_instructions/2010/200/qualification.rtf.

336

Volume 1, Issue 3


Jury Instructions for the Modern Age ask questions about and rebut the evidence being considered against it and to present argument with respect to that evidence. Non-court inquiries and investigations unfairly and improperly prevent the parties from having that opportunity our judicial system promises. If you become aware of any violation of these instructions or any other instruction I give in this case, you must tell me by giving a note to the bailiff.160

The point is reiterated when explaining trial procedure following jury selection,161 and prior to deliberations.162

Criminal Instructions The additions to the criminal instructions mirror the additions to the civil instructions, including an instruction to the general jury pool before assignment to a particular case that uses the same language as the general qualifications instruction in the civil instructions;163 and a reiteration once a venire has been assigned to a particular case.164 The warning against use of electronic devices is also included in the instruction for the start of criminal trials: â&#x20AC;Ś The case must be tried by you only on the evidence presented during the trial in your presence and in the presence of the defendant, the attorneys and the judge. Jurors must not conduct any investigation of their own. This includes reading newspapers, watching television or using a computer, cell phone, the Internet, any electronic device, or any other means at all, to get information related to this case or the people and places involved in this case. This applies whether you are in the courthouse, at home, or anywhere else. You must not visit places mentioned in the trial or use the Internet to look at maps or pictures to see any place discussed during the trial. Jurors must not have discussions of any sort with friends or family members about the case or the people and places involved. So, do not let even the closest family members make comments to you or ask questions about the trial. In this age of electronic communication, I want to stress again that just as you must not talk about this case face-to-face, you must not talk about this case by using an electronic device. You must not use phones, computers or other electronic devices to communicate. Do not send or accept any messages related to this case or your jury service. Do not discuss this case or ask for advice by any means at all, including posting information on an Internet website, chat room or blog. 165

There is a similar admonition in the instruction when the case is submitted to the jury.166 A note repeated for each of these instructions states that the description of electronic communications devices may need to be modified as new technology develops.167

160. See Fla. Std. Jury Instr., Civil, Instr. 201.2 (2010), available at http://www.floridasupremecourt. org/civ_jury_instructions/2010/200/201(2).rtf. 161. See Fla. Std. Jury Instr., Civil, Instr. 202.2 (2010), available at http://www.floridasupremecourt. org/civ_jury_instructions/2010/200/202(2).rtf. 162. See Fla. Std. Jury Instr., Civil, § 700, Closing Instructions (2010), available at http://www.floridasupremecourt.org/civ_jury_instructions/2010/700/700.rtf. 163. Fla. Std. Jury Instr., Qualifications Instruction (2010), available at http://www.floridasupremecourt.org/jury_instructions/chapters/chapter1/QualificationsInstruction.rtf. 164. Fla. Std. Jury Instr., Crim. 1.1 (2010), available at http://www.floridasupremecourt.org/jury_instructions/chapters/chapter1/p1c1s1.1.rtf. 165. Fla. Std. Jury Instr., Crim., 2.1 (2010), available at http://www.floridasupremecourt.org/jury_instructions/chapters/chapter2/p1c2s2.1.rtf. 166. See Fla. Std. Jury Instr., Crim. 3.13 (2010), available at http://www.floridasupremecourt.org/jury_ instructions/chapters/chapter3/p1c3s3.13.rtf. 167. See, e.g., Fla. Std. Jury Instr., Crim., Qualifications Instruction (2010), Note on Use, available at http:// www.floridasupremecourt.org/jury_instructions/chapters/chapter1/QualificationsInstruction.rtf. Reynolds Courts & Media Law Journal

337


Jury Instructions for the Modern Age

Other In addition to the revisions to the jury instructions, in 2010 the Florida Bar’s Judicial Administration Rules Committee proposed a new rule on use of electronic devices in courtrooms. In addition to placing strict limits on use of these devices by jurors, the original draft of the proposed rule would have given judges and quasi-judicial officials broad authority to control use of these devices in the courthouse, including the ability to confiscate devices during judicial proceedings and to order the erasure of audio or visual recordings.168 Professional journalists were specifically exempt.169 After receiving comments regarding the proposed rule – mostly negative170 – the committee released a new proposal, which is limited to controlling jurors’ use of electronic devices. The revised proposal bars jurors from using these devices to record or transmit audio or video of court proceedings and transmit or receive text, data or information about the case or during proceedings.171 The rule also requires confiscation of the devices from jurors during deliberations, and allows it beforehand, but requires the devices be returned during recesses unless a jury is sequestered, in which case the presiding judge decides whether to return the devices during breaks.172

Cases In September 2010, a Florida appeals court ordered a new trial in a manslaughter conviction where the jury foreman searched online for the definition of “prudent”—used in the jury instructions—during a break in deliberations and shared the definition with other jurors.173 “Although here we confront new frontiers in technology, that being the instant access to a dictionary by a smartphone, the conduct complained of by the appellant is not at all novel or unusual,” the appeals court wrote in its opinion. “It has been a longstanding rule of law that jurors should not consider external information outside of the presence of the defendant, the state, and the trial court.”174

Georgia – Civil: Archaic;  Criminal: Archaic In March 2010, the Atlanta Journal-Constitution reported that the Council of Superior Court Judges of Georgia was drafting jury instructions that would prohibit communication about cases online, and discourage jurors from doing independent online research.175 While the revised instructions were scheduled to be adopted in July 2010,176 it appears that no action was taken on the proposals.177

168. Jennifer A. Mansfield, Criticism Submitted to Florida Bar on Proposed Regulation of Electronic Devices in Courtrooms, Media Law Letter, Feb. 2010, at 28. 169. Id. 170. Id. 171. Fla. Bar Jud. Admin. R. Comm,, Proposed Rule 2.451(b)(3), available at https://flabar.org/TFB/TFBResources.nsf/Attachments/3316CFA89D374EF385257802006552D2/$FILE/Final%20Rule%20 2.451%20for%20E-vote%20with%20proof%20corrections.pdf. 172. Fla. Bar Jud. Admin. R. Comm,, Proposed Rule 2.451(b)(1)-(2), id. 173. Tapanes v. State, 43 So.3d 159 (Fla. App., 4th Dist. 2010). 174. Id. at 163. 175. Andria Simmons, Georgia courts to bar jurors from Internet, Atlanta J.-Const., Mar. 30, 2010, http:// www.ajc.com/news/georgia-courts-to-bar-420308.html. 176. Id. 177. These changes are not among those listed from the Council’s rules change announcements from March and August 2010, and the Georgia Suggested Pattern Jury Instructions available on Westlaw, current through July 2010, contain no such language.

338

Volume 1, Issue 3


Jury Instructions for the Modern Age

Civil Instructions Georgia’s existing pattern jury instruction for civil cases refers to “books,” “documents,” and the “news media” without further explanation. You may not visit any scenes depicted by the evidence. You may not utilize any books or documents not in evidence during your deliberations. You may not read or listen to any accounts of the trial that might appear in the news media. You may not discuss this case with anyone other than your fellow jurors during deliberations.178

Criminal Instructions

The existing criminal instructions repeat the same language from the civil instructions. 179

Cases In February 2010, a Fulton county judge declared a mistrial and fined a juror $500 for doing online research during a rape case.180 In 2005, a Georgia appeals court held that a trial court was not required to declare a mistrial after a juror used MapQuest to research the distance between two locations that played a role in a child molestation trial and shared that information with fellow jurors, because the information was not dispositive to the jury’s guilty verdict.181

Hawaii – Civil: Archaic;  Criminal: Modern Criminal Instructions In 2009, the Hawaii Supreme Court amended its standard criminal jury instructions to specifically address juror use of the Internet and social media. The criminal instructions now include the following language in the preliminary instruction after a jury is selected and seated: You must not investigate the case in any way. This means that you must not visit any places mentioned during this trial, conduct experiments, consult any dictionaries, encyclopedias, web sites or other reference materials. Also, do not read, listen to, or watch anything about this case from any source, such as a television or radio broadcast, newspaper article or internet transmission. Your decision must be based only on the evidence you receive in this courtroom and the court’s instructions on the law.182

The admonition for recesses is more explicit: 1. Do not talk to anyone, including your fellow jurors, friends or members of your family about anything having to do with this trial, except to speak to court staff. This means that you must not discuss this case with anyone until the verdict is received or you are excused from jury service. No discussion also means no e-mailing, text messaging, tweeting, blogging or any other form of communication. … 6. Because of the requirement that your verdict must be based only on the evidence received in the courtroom and instructions on the law, you must not read, listen to or watch any news reports about this trial, if there are any, regardless of whether the report is from the newspaper, radio, television, internet or any other source. 178. Ga. Jury Instr., Civil [GA-JICIV] 00.100 (2010). 179. Ga. Jury Instr., Crim. [GA-JICRIM] 0.01.00 (2010). 180. Id. 181. Brown v. State, 275 Ga. App. 281, 284 620 S.E.2d 394, 398 (Ga. App. 2005) (“Of the jurors who actually recalled receiving the information, all of them testified that they were unaffected by the information.”). 182. Haw. Pattern Jury Instr., Crim., No. 1-01 (2010). Reynolds Courts & Media Law Journal

339


Jury Instructions for the Modern Age 7. Do not research this case on your own or as a group by using a dictionary, encyclopedia, map, or reference materials, including online or other electronic sources. You are not permitted to search the Internet, for example, using Google, or any other search engine or web site to look for information about this case or about the participants in the trial. The participants in a trial include the judge, lawyers, witnesses and the defendant. The Court understands that in your daily life it may be a common occurrence for you to look for more information about a product or an event, but the moment you try to gather information about this case or the participants, is the moment you contaminate the process you promised to uphold. 8. Do not share information, opinions, or anything else about this case with others, personally or in writing, or through computers, cell phone messaging, personal electronic and media devices or other forms of wireless communications. This includes, for example, communicating about this case through e-mail, instant messaging, tweeting, text messaging, or using the Internet in any way. Also, do not post or look at information about this case on a blog, forum, social network site, chat room, discussion board or any other web site. 9. If you have a cell phone or other electronic device, keep it turned off while you are in the courtroom. Turned off means that the phone or other device is actually off and not in a silent or vibrating mode. After each recess, please double check to make sure your device is turned off. If someone needs to contact you in an emergency, the court can receive messages and deliver them to you without delay. The court’s phone number will be provided to you.183

But the pattern instruction for the end of criminal trials, regarding conduct of deliberations, admonishes jurors only to avoid discussions and “news accounts” about the case, without mentioning the Internet or social media at all.184

Civil Instructions Hawaii’s civil instructions have not been similarly amended to mention Internet and social media. For example, the pretrial admonition against independent investigation or research states that jurors must not “visit the scene on your own, conduct experiments, or consult dictionaries, encyclopedias, textbooks, or other reference materials for additional information,” but does mention the Internet or social media.185

Idaho – Civil: Archaic;  Criminal: Modern Civil Instructions Idaho’s civil instructions include a general admonition not to consult outside sources or conduct independent investigations or research, but do not mention the Internet or social media.186 The comment to this admonition, however, advises that “[i]t is perhaps preferable to use the elements of this instruction as a guide for a more informal explanation to the jury of the necessary conduct expected of them, including reasons and examples as appropriate.”187

Criminal Instructions Idaho’s criminal instruction for recesses during voir dire and during trial is much more detailed, and mentions various social media activities: 183. Hawaii Pattern Jury Instr., Crim., No. 2-01 (2010). See In re Publication and Distribution of the Hawai’i Pattern Jury Instrs. (Haw. 2009) (revising Crim. Instr. No. 2-01, et. al.), available at http:// www.courts.state.hi.us/docs/legal_references/jury_instruct6.pdf. 184. See Hawaii Pattern Jury Instr., Crim., No. 8.03 (2010). 185. See, e.g., Hawaii Pattern Jury Instr., Civ., No. 2.4 (2010). 186. See Idaho Civ. Jury Instr. [IDJI] 1.03 (2010). Idaho’s civil jury instructions are available at http:// www.isc.idaho.gov/rules/cv_juryinst.pdf. 187. Id., Comment.

340

Volume 1, Issue 3


Jury Instructions for the Modern Age During the course of this trial, [including the jury selection process,] you are instructed that you are not to discuss this case among yourselves or with anyone else, including any use of email, text messaging, tweeting, blogging, electronic bulletin boards, or any other form of communication, electronic or otherwise. Do not conduct any personal investigation or look up any information from any source, including the Internet. Do not form an opinion as to the merits of the case until after the case has been submitted to you for your determination.188

The instruction regarding juror conduct goes into more detail, and explains the rationale behind the restrictions. Do not discuss this case during the trial with anyone, including any of the attorneys, parties, witnesses, your friends, or members of your family. “No discussion” also means no emailing, text messaging, tweeting, blogging, posting to electronic bulletin boards, and any other form of communication, electronic or otherwise. *** Do not make any independent personal investigations into any facts or locations connected with this case. Do not look up any information from any source, including the Internet. *** Do not read or listen to any news reports about this case or about anyone involved in this case, whether those reports are in newspapers or the Internet, or on radio or television. In our daily lives we may be used to looking for information on-line and to “Google” something as a matter of routine. Also, in a trial it can be very tempting for jurors to do their own research to make sure they are making the correct decision. You must resist that temptation for our system of justice to work as it should. I specifically instruct that you must decide the case only on the evidence received here in court. If you communicate with anyone about the case or do outside research during the trial it could cause us to have to start the trial over with new jurors and you could be held in contempt of court. While you are actually deliberating in the jury room, the bailiff will confiscate all cell phones and other means of electronic communications. Should you need to communicate with me or anyone else during the deliberations, please notify the bailiff.189

Other The state’s Handbook for Jurors is also archaic, telling jurors that they “may not discuss the case with anyone during the course of the trial,”190 and, under the heading “News, Television, and Radio Reports,” that they “are not allowed to read, watch, or listen to media stories relating to the trial to which they are assigned.”191

Illinois – Civil: Modern;  Criminal: Archaic Civil Instructions Illinois’ civil instructions were revised in 2009 to specifically address the Internet in the general cautionary instruction: [6] The use of cell phones, text messaging, Internet postings and Internet access devices in connection with your duties violates the rules of evidence and you are prohibited from using them. 188. Idaho Crim. Jury Instr. [ICJI] 002 (2010). Idaho’s criminal jury instructions are available at http:// www.isc.idaho.gov/idaho_courts_e.htm. 189. ICJI 108 (2010). 190. Idaho Sup. Ct. Jury Comm., Idaho Supreme Court Handbook For Jurors (n.d.), at 7, available at http://www.isc.idaho.gov/jurybook.pdf. 191. Id. Reynolds Courts & Media Law Journal

341


Jury Instructions for the Modern Age [7] You should not do any independent investigation or research on any subject relating to the case. What you may have seen or heard outside the courtroom is not evidence. This includes any press, radio, or television programs and it also includes any information available on the Internet. Such programs, reports and information are not evidence and your verdict must not be influenced in any way by such material.192

While the instructions themselves do not supply a rationale for these directives, a comment to point six does provide an explanation: The practice of instructing jurors not to discuss the case until deliberation is widespread. The use of Web search engines, wireless handheld devices, and Internet-connected multimedia smartphones by jurors in any given case has the potential to cause a mistrial. It is critical to the administration of justice that these electronic devices not play any role in the decision making process of jurors.193

The Illinois Supreme Court’s committee on civil jury instructions is reportedly looking into strengthening these instructions to cover social media.194 It has already released a preliminary instruction, based on the federal U.S. Judicial Conference version.195

Criminal Instructions The state’s criminal instructions have not been updated. While Illinois has criminal instructions admonishing jurors “not to converse with anyone on any subject connected with this case;” “not read or listen to any outside comments or news accounts of this case;” and “not view or go to the place where the offense was allegedly committed,”196 the instructions do not mention the Internet or social media.

Other The Illinois courts have published A Handbook for Illinois Jurors: Petit Jury, which explains the court system and the role and responsibilities of jurors. The handbook includes a section admonishing jurors not to discuss or do independent research about a case, although it does not mention the Internet or social media. Jury Conduct During Trial Don’t Make An Independent Investigation Jurors are expected to use the experience, common sense, and common knowledge they possess, but are not to rely upon private sources of information.  It follows, therefore, that you should never inspect the scene of any occurrence involved in the case except under supervision of the Court. Don’t Talk To Participants During Trial Do not talk to any of the parties, witnesses, or the attorneys about anything.  It may be what you say to a trial participant is a simple “good morning” or some remark about the weather, but your conversation may be misinterpreted by someone who may see you talking but cannot hear what is being said.  To avoid misunderstandings, therefore, say nothing.

192. Ill. Pattern Instr. – Civ. 1.01 (2010). 193. Ill. Pattern Instr. – Civ. 1.01[6], Comment (2010). 194. See Jasmine Villaflor Hernandez & Jessica LeeAnn Cummings, Loose-Lipped Lawyers in the Facebook Age: What Courts Can Do About Unauthorized Electronic Communication, 99 Ill. B.J. 344, 346 (2011). 195. Id. See also U.S. Jud. Conf., Comm. on Ct. Admin. & Case Mgmt., Proposed Model Jury Instrs., supra note 29. 196. Ill. Pattern Jury Instr. – Crim. 26.08 (4th ed. 2009) (admonishment during trial); Ill. Pattern Jury Instr. – Crim. 26.09 (4th ed. 2009) (admonition for recesses).

342

Volume 1, Issue 3


Jury Instructions for the Modern Age Don’t Discuss The Case During Trial Jurors are not to discuss the case among themselves until they have heard all of the evidence, the arguments of the attorneys, and the Court’s instructions.  After this you will go to the jury room to discuss the case and reach your verdict.  You may, of course, converse with your fellow jurors about anything not connected with the case when the Court is not in session. During the trial you must not discuss the case with your family, friends or others.  The reason for this is plain.  You must base your verdict only upon evidence.  The opinions or comments that friends, relatives, or other outsiders may offer are not proper evidence in the case.  So, if you are asked to discuss the case by persons outside the courtroom, you should simply say that the law does not permit you to do so.  If anyone persists in discussing the case or tries to influence you in any manner, it is your legal duty to report this to the judge immediately.  YOU SHOULD AVOID NEWSPAPERS OR RADIO AND TELEVISION BROADCASTS which may feature accounts of the trial or information about someone’s participation in it.  These may be one-sided or incomplete and are not evidence. After you have been released from all service as a juror you may, but are not required to, discuss the case with lawyers, investigators or other persons.  It is not proper for an attorney or his or her representative to make inquiry of you until such time as you have been finally excused.  If you prefer not to discuss the case, you should so state to the person inquiring.197

Indiana – Civil: Modern;  Criminal: Modern Civil Instructions Indiana Model Civil Jury Instructions discuss the use of the Internet and social media in detail, and give a lengthy explanation of why their use is prohibited. * * * Your decision must be based only on the evidence presented during this trial and my instructions on the law. Therefore, from now until the trial ends, you must not: Conduct research on your own or as a group, Use dictionaries, the Internet, or any other resource to gather any information about the issues in this case, Investigate the case, conduct any experiments, or attempt to gain any specialized knowledge about the case, or Receive assistance in deciding the case from any outside source. You also must not: Use laptops or cell phones in the courtroom or in the jury room while discussing the case, Consume any alcohol or drugs that could affect your ability to hear and understand the evidence, Read, watch, or listen to anything about this trial from any source whatsoever, including newspapers, radio, television, or the Internet, Listen to discussions among, or receive information from, other people about this trial, or Visit or view the scene of any event involved in this case. If you happen to pass by the scene, do not stop or investigate. Finally, you must not: Talk to any of the parties, their lawyers, any of the witnesses, or members of the media. If anyone tries to talk to you about this case, you must tell the bailiff or me immediately. You may discuss the evidence with your fellow jurors during the trial, but only in the jury room, and only when all of you are present. Even though you are permitted to have these discussions, you must not make a decision about the outcome of this case until your final deliberations begin. Until you reach a verdict, do not communicate about this case or your deliberations with anyone else.

197. Admin. Office of Ill. Cts., A Handbook for Illinois Jurors: Petit Jury (2009) (emphasis in original), available at http://www.state.il.us/court/circuitcourt/Jury/Jury.pdf. Reynolds Courts & Media Law Journal

343


Jury Instructions for the Modern Age In this age of instant electronic communication and research, I want to emphasize that in addition to not talking face to face with anyone else about the case, you must not communicate with anyone or post information about the case, or what you are doing in the case, by any means, including telephone, text messages, email, internet chat rooms, blogs, or social websites, such as Facebook, MySpace, or Twitter. You also must not Google or otherwise search for any information about the case, or the law that applies to the case, or the people involved in the case, including the parties, witnesses, lawyers, or Judge. During the trial, you may tell people who need to know that you are a juror, and you may give them information about when you will be required to be in court. But you must not talk with them or others about anything else related to the case. After your service on this jury is concluded, you are free to talk with anyone about the case or do whatever research you wish. I want you to understand why these rules are important. Our law does not permit jurors to talk about the case with anyone except fellow jurors. The law also does not permit jurors to allow anyone to talk to them about the case. The reason for this is that only jurors are authorized to render a verdict. Only you have been found to be fair, and only you have promised to be fair â&#x20AC;&#x201C; no one else has been so qualified. Our law does not permit you to visit a place discussed in the testimony because you cannot be sure that the place is in the same condition as it was on the day in question. Also, even if it were in the same condition, once you go to a place to evaluate evidence in light of what you see there, you become a witness, not a juror. As a witness, you may now have an erroneous view of the scene that may not be subject to correction by either party. That is not fair. Finally, our law requires that you not read or listen to any news accounts of the case, and that you not attempt to research any fact, law, or person related to the case. Your decision must be based solely on the testimony and other evidence presented in this courtroom. It would not be fair for you to base your decision on some reporterâ&#x20AC;&#x2122;s view or opinion, or upon information that you acquire outside the courtroom from a source that cannot be challenged or cross-examined by the parties. These rules are designed to help guarantee a fair trial, and our law accordingly provides for serious consequences if the rules are not followed. I trust that you understand and appreciate the importance of following these rules and, in accord with your oath and promise, I know that you will do so.198

Criminal Instructions Indianaâ&#x20AC;&#x2122;s Pattern Jury Instructions for criminal trials use different language, but make the same admonition and include a similar explanation of the reasoning behind these restrictions. You have been selected as jurors and you are bound by your oath to try this case fairly and honestly. You are permitted to discuss the evidence among yourselves in the jury room during recesses from trial but only when all jurors and alternates are present. You must not talk or communicate about this case with anyone else. You should keep an open mind. You should not form or express any conclusion or judgment about the outcome of the case until the Court submits the case to you for your deliberations. You must focus your attention on the court proceedings and reach a verdict solely upon what you see and hear in this court. As jurors, you must not do any independent investigation about the case and you must not be influenced in any way by information, opinions, or publicity outside the courtroom. Until you have returned your verdict in court and I have released you from your service, do not talk to any of the parties, their lawyers, any witnesses, or members of the media. If anyone tries to talk about the case in your presence, you should tell the bailiff immediately and privately. During your 198. Ind. Model Civ. Jury Instrs. 101 (2011).

344

Volume 1, Issue 3


Jury Instructions for the Modern Age attendance in the courtroom, during any discussions about the case in the jury room, or during deliberations in the jury room, you shall not use any computers, laptops, cellular telephones, or other electronic communication devices unless specifically authorized by the court. During the trial, there will be periods of time when you will be allowed to separate, such as for recesses, lunch periods, and overnight. At those times, you must not use computers, laptops, cellular telephones, or other electronic communication devices or any other method to: investigate, conduct research, or otherwise gather information regarding the case; conduct experiments or attempt to gain any specialized knowledge about the case; receive assistance in deciding the case from any outside sources; read, watch, or listen to anything about the case from any source; listen to discussions among or receive information from other people about the case; or communicate with any of the parties, their lawyers, any of the witnesses, members of the media, or anyone else about the case, including by posting information, text messaging, e-mailing, or participating in Internet chat rooms, blogs, or social websites which could contain information about the case. You also must not visit or view the scene of any event involved in this case. If you happen to pass by the scene, do not stop or investigate. You must also not consume any alcohol or drugs that could affect your ability to hear and understand the evidence. The reason for these restrictions is to ensure that your decision is based only on the evidence presented during this trial and the Courtâ&#x20AC;&#x2122;s instructions on the law. (Short form admonishment at every recess:) During the recess, you may discuss the case among yourselves only while you are all together in the jury room. Do not discuss the case under any other circumstance. You must not form or express any opinion or conclusion about the outcome of the case until it is finally submitted to you for your deliberations. (Long form admonishment at the conclusion of each day of trial:) During the overnight recess, do not discuss the case under any circumstance. You must not form or express any opinion or conclusion about the outcome of the case until it is finally submitted to you for your deliberations. During the recess, you must not use computers, laptops, cellular telephones, or other electronic communication devices or any other method to: investigate, conduct research, or otherwise gather information regarding the case; conduct experiments or attempt to gain any specialized knowledge about the case; receive assistance in deciding the case from any outside sources; read, watch, or listen to anything about the case from any source; listen to discussions among or receive information from other people about the case; or communicate with any of the parties, their lawyers, any of the witnesses, members of the media, or anyone else about the case, including by posting information, text messaging, e-mailing, or participating in Internet chat rooms, blogs, or social websites which could contain information about the case.199

In addition to the changes to the jury instructions, Indianaâ&#x20AC;&#x2122;s jury rules were amended, effective July 1, 2010, to ban juror use of all electronic communications devices. The court shall instruct the jurors before opening statements that until their jury service is complete, they shall not use computers, laptops, cellular telephones, or other electronic communication devices while in attendance at trial, during discussions, or during deliberations, unless specifically authorized by the court. In addition, jurors shall be instructed that when they are not in court they shall not use computers, laptops, cellular telephones, other electronic communication devices, or any other method to: 199. Ind. Patt. Jury Instrs., Crim., Instr. 1.01 (2011). Reynolds Courts & Media Law Journal

345


Jury Instructions for the Modern Age (1) conduct research on their own or as a group regarding the case; (2) gather information about issues in the case; (3) investigate the case, conduct experiments, or attempt to gain any specialized knowledge about the case; (4) receive assistance in deciding the case from any outside source; (5) read, watch, or listen to anything about the case from any source; (6) listen to discussions among, or received information from, other people about the case; or (7) talk to any of the parties, their lawyers, any of the witnesses, or members of the media, or anyone else about the case, including posting information, text messaging, email, Internet chat rooms, blogs, or social websites.200

The new rules also provide for the court to collect electronic devices from jurors during deliberations: The court shall instruct the bailiff to collect and store all computers, cell phones or other electronic communication devices from jurors upon commencing deliberations. The court may authorize appropriate communications (i.e. arranging for transportation, childcare, etc.) that are not related to the case and may require such communications to be monitored by the bailiff. Such devices shall be returned upon completion of deliberations or when the court permits separation during deliberations. Courts that prohibit such devices in the courthouse are not required to provide this instruction. All courts shall still admonish jurors regarding the limitations associated with the use of such devices if jurors are permitted to separate during deliberations.201

Cases The Indiana Supreme Court adopted the new rules after it considered a case in which a juror took a cell phone call during deliberations. While the court denied a new trial in the case, it recognized the problem that jurors’ use of electronic devices poses, and recommended that trial courts act to limit or prohibit use of such devices during trial. [The plaintiff, who lost at trial] presented her claim of error due to the juror’s cell phone use in her motion to correct error. It was denied by the trial court, which concluded that “[n] othing about these events comprise[s] misconduct in any form.” On appeal, Ms. Henri has not established that the alleged receipt of a cell phone call with the apparent approval of the bailiff constituted misconduct, and has shown neither gross misconduct nor probable harm. Reversal and a new trial are not warranted on this issue. We additionally observe that permitting jurors, other trial participants, and observers to retain or access mobile telephones or other electronic communication devices, while undoubtedly often helpful and convenient, is fraught with significant potential problems impacting the fair administration of justice. These include the disclosure of confidential proceedings or deliberations; a juror’s receiving improper information or otherwise being influenced; and a witness’s or juror’s distraction or preoccupation with family, employment, school, or business concerns. These and other detrimental factors are magnified due to swift advances in technology that may enable a cell phone user to engage in text messaging, social networking, web access, voice recording, and photo and video camera capabilities, among others. The best practice is for trial courts to discourage, restrict, prohibit, or prevent access to mobile electronic communication devices by all persons except officers of the court during all trial proceedings, and particularly by jurors during jury deliberation.202

200. Ind. Jury R. 20(b) (2010), available at http://www.in.gov/judiciary/rules/jury/#_Toc243295750. 201. Ind. Jury R. 26(b) (2010), available at http://www.in.gov/judiciary/rules/jury/#_Toc243295756. 202. Henri v. Curto, 908 N.E.2d 196, 202-03 (Ind. June 17, 2009) (vacating 891 N.E.2d 135 [Ind. App. 2008]).

346

Volume 1, Issue 3


Jury Instructions for the Modern Age

Iowa – Civil: Archaic;  Criminal: Archaic Civil Instructions Iowa’s civil jury instructions were last revised in 2004, and do not address use of the Internet or social media, or even juror exposure to traditional media. They include only general statements that The following are not evidence: … 4. Anything you saw or heard about this case outside the courtroom.203

Criminal Instructions Like the civil instructions, Iowa’s criminal jury instructions have not been revised since 2004. The only statement regarding extrinsic evidence is the same as the civil instructions.204

Kansas – Civil: Archaic;  Criminal: Modern Civil Instructions The civil instructions in Kansas do not mention any social media or Internet sites by name. But they do give some of the rationales for the restrictions on jurors’ communications and activities. There are a few general rules of conduct with which all members of the jury panel should be familiar. (a) Keep an open and attentive mind throughout the trial. Do not make up your mind or attempt to reach a decision until the conclusion of the entire case and its submission to you for deliberation. Before that time do not discuss the case among yourselves. At no time discuss the case with anyone else or permit others to discuss it in your presence. As an additional precaution, do not converse with the attorneys, parties, or witnesses during the trial. Should anyone attempt to discuss the case with you, report the incident to the bailiff. (b) To keep an open mind, do not listen to or read news accounts of the trial proceedings. Often such accounts are based upon incomplete information and give a distorted view of the case. (c) Do not inspect any particular place or thing in controversy unless so directed by the Court. The scene or thing may have changed. You are to reach your verdict from the evidence and testimony presented in Court.205

Criminal Instructions The state’s criminal pattern jury instructions, meanwhile, have been revised to specifically mention a number of social Internet sites and services. As jurors chosen to try this case, you must base your decision only on the evidence presented here in open court during this trial and my instructions on the law. Therefore, from now until I dismiss you from jury service you must not: • Conduct any research on your own or with anyone else about the issues of this case. • Use dictionaries, the internet, any book or any other source to look up an information about the issues of this case. • Investigate the issues, conduct experiments, or try to gain any specialized knowledge about the case. • Receive help from any outside source in deciding the case. • Listen to discussions among other people about this case or receive any information from them. 203. Iowa Civ. Jury Instr. 100.4 (2004), available at www.lb8.uscourts.gov/researchdirectory/.../iowacrim-jury-instr.doc. 204. Iowa Crim. Jury Instr. 100.5 (2004), available at www.lb8.uscourts.gov/researchdirectory/.../iowaciv-jury-instr.doc. 205. Pattern Instr. Kan. 4th, Civ. 101.10 (4th ed. 2008). Reynolds Courts & Media Law Journal

347


Jury Instructions for the Modern Age • Visit or view the scene of any event involved in this case. If you happen to pass by the scene, do not stop or examine it. • Talk to the parties, their lawyers, any of the witnesses, or members of the media about this case. • Listen to, read or view any media coverage of the trial. I caution you not to talk with anyone about this case nor tell by any method of communication what you are doing as a juror. I mean face-to-face conversations, as well as electronic communications including e-mails and posting comments on internet chat rooms, blogs, or any social networking website such as Facebook, MySpace, or Twitter. Also, you must not use Google or some similar search engine to do research about the issues of the case, the law, the parties, the witnesses, the lawyers, or the judge. Our courts have made these rules to assure fair trials. If you do learn something about the case from a source outside the trial, do not tell any such information to the other jurors. Tell the bailiff as soon as possible, so I can be told about that fact and take any necessary action.206

Cases The Kansas Court of Appeals recently affirmed a trial court’s denial of a mistrial based on juror misconduct, after a juror appeared to be sending text messages from the jury box during a trial that ended in a conviction for aggravated burglary and attempted aggravated robbery. The trial judge did not question the juror, and denied the motion, because no one had actually observed the juror texting, although the bailiff had seen the juror texting during jury selection.207 The appeals court held that while “it may have been the better practice for the trial court to have made the inquiries, we are unable to conclude that no reasonable person would take the view adopted by the district court.”208 Thus, the appeals court concluded, “[t]he trial court did not abuse its discretion in denying [the defendant’s] motion for a mistrial on the basis of juror misconduct.”209 The court then recommended that courts in Kansas adopt jury rules like those in Indiana, which ban electronic devices,210 and that the state’s jury instructions should specifically mention various forms of modern electronic communications, as was done in New York.211 206. Pattern Inst., Kan. 3d, Crim. 51.01-B (2009). 207. As related by the appeals court, Defense counsel stated that he observed the juror slumped down in her seat below the rail in front of the jury box, but that he did not know what she was doing. He said he moved for a mistrial “grudgingly, because [he] favored this jury” and that he was “satisfied with the other jurors,” who had “been attentive and participated fully in the case. The prosecutor stated that she did not notice the juror texting, but that she did not look at the jury during trial. She added, “So I don’t know if you want to bring her out here and ask her or what.” The judge noted that his bailiff had advised him that juror number one was texting during jury selection, and that he had noticed the juror’s hands were below the rail and that her focus was down towards her lap during the first day of the trial, although the judge could not see if the juror was text messaging. State v. Mitchell, --- P.3d ----, 2011 WL 1330804, at *2-*3 (Kan. Ct. App. Apr. 8, 2011). 208. Id., 2011 WL 1330804, at *4. 209. Id. 210. Id. See also Ind. Jury R. 20(b) (2010), available at http://www.in.gov/judiciary/rules/jury/#_ Toc243295750 (banning juror use of all electronic communications devices); and Ind. Jury R. 26(b) (2010), available at http://www.in.gov/judiciary/rules/jury/#_Toc243295756 (providing for the court to collect electronic devices from jurors during deliberations). 211. Id. The court referred to the “the general instruction on juror communication,” but did not otherwise specify which Kansas instruction should be amended. Presumably the court was referring to Pattern

348

Volume 1, Issue 3


Jury Instructions for the Modern Age

Kentucky – Civil: Archaic;  Criminal: Archaic Unlike other states, which often seek specificity in their jury instructions, “[Kentucky’s] approach to [jury] instructions is that they should provide only the bare bones, which can be fleshed out by counsel in their closing arguments if they so desire.”212 The state’s Supreme Court recently reaffirmed this standard, which, it said “is buttressed by a long line of Kentucky cases which call for a substantially similar approach.”213 Thus, instead of specific instructions, the compilations of civil and criminal jury instructions for Kentucky both suggest language for admonitions against outside research, to be given prior to recesses.

General Instructions Kentucky law requires that, prior to any recess during trial or deliberations, the jury “shall be admonished by the court that it is their duty not to converse with, nor allow themselves to be addressed by, any other person on any subject of the trial; and that, during the trial, it is their duty not to form or express an opinion thereon, until the case is finally submitted to them.”214 The same statute provides that “[n]o officer, party, or witness to an action pending, or his attorney or attorneys shall, without leave of the court, converse with the jury or any member thereof upon any subject after they have been sworn.”215

Criminal Instructions The requirement for a pre-recess admonition is repeated in Kentucky’s criminal procedure rules: The jurors, whether permitted to separate or kept in charge of officers, must be admonished by the court that it is their duty not to permit anyone to speak to, or communicate with, them on any subject connected with the trial, and that all attempts to do so should be immediately reported by them to the court, and that they should not converse among themselves on any subject connected with the trial, nor form, nor express any opinion thereon, until the cause be finally submitted to them. This admonition must be given or referred to by the court at each adjournment.216

Louisiana – Civil: Archaic;  Criminal: Archaic Civil Instructions Louisiana does not have a set of jury instructions, civil or criminal, with the official imprimatur of the courts.217 But there is a set of generally accepted instructions in Cheney C.

Instr. Kan. 4th, Civil 101.10 (2008), which does not contain such specific references. The court’s recommendation to adopt the New York language was based on a description of the New York changes in People v. Jamison, 24 Misc. 3d 1238(A), 899 N.Y.S.2d 62 (Table) 2009 WL 2568740, 2009 N.Y. Slip Op. 51800(U) (N.Y. Sup. Ct., Kings County Aug. 18, 2009) (unpublished). The New York rule is N.Y. Crim. Instr. 2d [NY CJI 2d], Jury Admonitions (rev. May 5, 2009), http://www.nycourts.gov/cji/1-General/ CJI2d.Jury_Admonitions.pdf. See infra note 243 and accompanying text. 212. Cox v. Cooper, 510 S.W.2d 530, 535 (Ky. 1974). 213. Bayless v. Boyer, 180 S.W.3d 439, 450 (Ky. 2005) (citations omitted). 214. Ky. Rev. Stat. 29A.310(1) (2011). See also 2-13 Palmore & Cetrulo, Ky. Jury Instrs. § 13.04, Admonitions (2011). 215. Ky. Rev. Stat. 29A.310(2). 216. Ky. R. Crim. Pro. 9.70. 217. Cheney C. Joseph & P. Raymond Lamonica, 17 La. Civ. L. Treatise, Crim. Jury Instrs. § 1.01 (2d ed. 2010). But see Louisiana Supreme Court looks to simplify jury instructions for civil cases, New Orleans Times-Picayune, Jan. 8, 2011, http://www.nola.com/politics/index.ssf/2011/01/louisiana_supreme_ court_looks.html. Times-Picayune, Jan. 8. 2011, .. Reynolds Courts & Media Law Journal

349


Jury Instructions for the Modern Age Joseph and P. Raymond Lamonica’s Louisiana Civil Law Treatise.218 Their opening instruction for civil trials includes an admonition not to consult outside material, and a short rationale statement, but books are the only medium specifically mentioned. I should also point out to you that anything you may have seen or heard outside the courtroom is not evidence and should be disregarded. You should decide this case solely on the evidence presented here in the courtroom. That also means that you should not conduct any research on these matters yourselves, such as reading books that might help you understand this case. Since not all of the jurors would have access to the same materials, this independent effort on your part would not be fair to the parties to this litigation.219

The introductory civil instructions also include an admonition against discussing the case prior to deliberations.220 This is repeated in the civil instructions immediately prior to deliberations. If you recess during deliberations, or if your deliberations should last more than one day, you must follow all of the instructions that I have given you about your conduct during the trial. You must not discuss the case with anyone outside of the jury room, even another juror. You may only discuss the case with your fellow jurors in the jury room and only when all of your fellow jurors are present.221

Criminal Instructions There is no such admonition in the criminal instructions, nor is there an admonition in the criminal instructions against discussing the case outside of deliberations.222

Maine – Civil: Modern;  Criminal: Modern General Instructions Maine’s Jury Instruction Manual contains an instruction, meant for both civil and criminal trials, which admonishes jurors to not communicate about the case in any way, specifically mentioning the Internet and social media. At this time, I want to remind you of some things that are important to assure that this is a fair trial and that you, as jurors, are perceived as having been fair and impartial in hearing the case and reaching your verdict: First, do not talk among yourselves about this case, or about anyone involved with it, until the end of the trial when you go to the jury room to decide on your verdict; Second, do not talk or communicate with anyone else about this case, until the trial has ended and you have been discharged as jurors. “Anyone else” includes members of your family, your friends, people at your workplace, or anyone else with whom you might communicate. You may tell them that you are a juror, but do not tell them anything about the case until after you have been discharged. When I ask you not to communicate, that means, beyond talking directly to people, that you may not communicate anything about this case or your participation in it using any means of communication including e-mail, cell phones, text messaging, Twitter or any blog, internet chat room, or social networking websites such as Facebook, YouTube, My Space, or LinkedIn;

218. See 17 La. Civ. L. Treatise, Criminal Jury Instructions (2d ed. 2010) and H. Alston Johnson III, 18 La. Civ. L. Treatise, Civil Jury Instructions (2d ed. 2010). Note that the word “civil” in the title of the treatise is a reference to Louisiana’s history as a “civil law” jurisdiction; that the treatise is “intended to cover the entire field of the civil law.” A.N. Yiannopoulos, Louisiana Civil Law: A Lost Cause?, 54 Tul. L. Rev. 830, 845 (1980). 219. 18 La. Civ. L. Treatise, Civ. Jury Instr. § 1.01 (2d ed. 2010). 220. Id. 221. 18 La. Civ. L. Treatise, Civ. Jury Instrs. § 2.15 (2d ed. 2010). 222. See 17 La. Civ. L. Treatise, Crim. Jury Instrs. (2d ed. 2010).

350

Volume 1, Issue 3


Jury Instructions for the Modern Age Third, do not let anyone talk to you or communicate with you by any means, about the case or about anyone who has anything to do with it. If someone should try to talk to you or communicate with you about the case, please report it to a court officer immediately; Fourth, during the trial do not talk with or speak to any of the parties, lawyers, or witnesses involved in this case--you should not even pass the time of day with any of them. If a person from one side of the lawsuit sees you talking to a person from the other side--even if it is simply to pass the time of day--an unwarranted and unnecessary suspicion about your fairness might be aroused. If any lawyer, party, or witness does not speak to you when you pass in the hall, ride the elevator or the like, it is because they are not supposed to talk or visit with you; [Fifth, do not read any news stories or articles about the case or about anyone involved with it, or listen to any radio or view any internet, website, or other electronic or television reports about the case or about anyone involved with it;] Sixth, do not do any research, such as consulting dictionaries or other reference materials or internet materials, and do not make any investigation about the case on your own; and Finally, do not make up your mind about the issues until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence. Keep an open mind until then.223

While the initial instruction does not explain the rationale for these restrictions, the admonition for recesses does so. Members of the jury. At each recess I have emphasized how important it is that you do not discuss the case or otherwise have any contact about the case. I have kept repeating these points because they are so vital to assure the State (plaintiff ) and defense a fair trial. Before we break for the evening, let me discuss in more detail why it is so important. I know you are going to go home, there will be family, friends; they will be interested in what you are doing. But it is absolutely essential that you not discuss the case with them for two basic reasons. First, there is still more of this case to come. Until the case is finally completed, you must keep an open mind about it. I know all of you will want to do that, but sometimes, when we discuss something, we tend to take positions on the matter, and once we have taken a position it is a little more difficult, in our own mind, to back away from that position. This concern never arises, however, if you do not discuss the case or communicate about it in any way, either among your fellow jurors or with anyone else until it is finally completed. Second, it is important that you not discuss or communicate about the case so that no one can suggest that you have prejudged this case, or that you have been influenced in any way by anything that has occurred or has been said outside of this courtroom. No one can make those suggestions if you do not discuss the case. As I have indicated before, you must decide the case based on what you hear and see in this courtroom and in this courtroom alone. For that reason, beyond your obligation not to discuss or communicate about this case, it is essential that you not conduct any independent investigation of the facts or issues that relate to this case. Please do not investigate the scene of events at issue here and please do not do any reading or research about issues in this case. Any such activity would be an improper gathering of evidence outside of the trial process. Also, please do not read anything that may appear about this case in the newspaper, and please try to avoid anything about this case that may be presented on radio or television or the internet. There may be things in such reports that are not proper for you to hear or view. Further, any news reports of this trial, no matter how competently prepared, are necessarily going to be brief summaries of the events. But your impressions of this trial must be your own. You must not be influenced by highlights of events which represent someone elseâ&#x20AC;&#x2122;s belief of what has been important. Certainly you will want to read about the trial when it is over. Have relatives and friends save copies of newspapers for that

223. Donald G. Alexander, 1-2 Maine Jury Instruction Manual, § 4-2A (4th ed., 2001). Reynolds Courts & Media Law Journal

351


Jury Instructions for the Modern Age purpose. There is nothing that inhibits you from reading about this case once it is finished, but please do not have any contact or engage in any communication, in any way, regarding this case outside of the courtroom, until it is finished, after you have reached your verdict. With those cautions, I would wish you a good evening, we will reconvene tomorrow morning at [ ].224

Maryland – Civil: Archaic;  Criminal: Archaic Maryland has not updated its pattern jury instructions to account for social media and the Internet.

Civil Instructions The pattern civil instructions only admonish jurors to “not discuss the case with anyone who is not on the jury,” and to “not visit the scene of any incident mentioned in the testimony or seek advice from friends or acquaintances as to any issues in this case or otherwise conduct investigation outside the courtroom.”225 Jurors are also given a short explanation that states the standard rule, but it does not address the rationale behind it. The reason for this is that you must decide the case only on the evidence which you have heard and seen in the courtroom and on nothing else.226

Criminal Instructions The criminal pattern instructions tell jurors not to “Do not research or investigate the case on your own. You must base your decision only on the evidence presented in this courtroom.”227 The criminal instructions also include two instructions regarding media coverage: one for prior to trial, and another to be used prior to deliberations. They both mention traditional media, but neither of the instructions specifically address the Internet or social media: There may be news coverage of this case. For that reason, do not watch or listen to any television or radio news broadcasts. Do not read anything from any source about this case, about crime in general or about criminal sentencing [or the death penalty]. If anything occurs contrary to these instructions, please write me a note, as soon as possible, and do not discuss it with anyone else.228 You must completely disregard any newspaper, television or radio reports that you may have read, seen or heard concerning this case. Such reports are not evidence. You must not be influenced in any manner by publicity.229

The admonition against discussing the case also fails to address new media: Do not discuss this case with anyone or let anyone discuss this case with you or in your presence. This includes other jurors, courtroom personnel, friends and relatives, spectators and reporters. In addition, you should avoid any contact with the parties, witnesses and lawyers involved in this case. If anyone tries to discuss this case with you or if anything questionable occurs, please write me a note, as soon as possible, and do not discuss it with anyone else.230

224. Id., § 4-19. 225. Md. Inst. for Continuing Prof. Ed. of Lawyers, Md. Civil Pattern Jury Instr. 1.01(a)(3) (2009). 226. Id. 227. Md. Inst. for Continuing Prof. Ed. of Lawyers, Md. Crim. Pattern Jury Instr. [MPJI-Cr] 1.00 (2007). 228. MPJI-Cr 1:02(A) (2007) (for use prior to trial). 229. MPJI-Cr 1:02(B) (2007) (for use prior to deliberations). 230. MPJI-Cr 1:02(B) (2007) (for use prior to recesses and upon daily adjournments).

352

Volume 1, Issue 3


Jury Instructions for the Modern Age

Cases The Maryland Court of Special Appeals reversed two jury verdicts in 2009 because of social media use by jurors during trial. In Wardlaw v. State, the court concluded that the trial court’s failure to question the jurors about the influence of an individual juror’s Internet research on “oppositional defiant disorder” required a reversal.231 A different panel of the same court reached the same conclusion in Clark v. State, in which a bailiff found in the jury room printouts from Wikipedia on various scientific issues in the trial.232 Issues of jurors’ use of the Internet arose in two Maryland cases in a single month, November 2009. In the corruption trial of Baltimore mayor Sheila Dixon, the defense initially sought a new trial after Dixon was convicted, because five jurors had become friends and discussed the case on Facebook.233 And although a juror in a murder trial admitted to researching the case on the Internet, the court instructed the jury to base their verdict only on the evidence in court, and the jury acquitted the defendant.234 A rule adopted by the Maryland Court of Appeals in 2010 allows cell phones and other devices capable of transmitting, receiving or recording information in the state’s courts, but bans the devices from jury deliberation rooms and from courtrooms without permission of the presiding judge.235 As originally proposed, the rule would have generally banned most cell phones and other electronic devices from courthouses.236

Massachusetts – Civil: Archaic;  Criminal: Archaic Massachusetts has not updated its pattern jury instructions to account for social media and the Internet.

Civil Instructions In the Massachusetts model civil instructions, the instruction regarding trial publicity is similar to the criminal instruction: During the time that you serve on this jury, there may be reports about this case in the newspapers or on radio or television. You may be tempted to look at or listen to them. Please do not do so. The law requires that the evidence you consider in reaching your verdict meet certain standards; for example, a witness may testify about events [he/she] has personally seen or heard but not about matters told to [him/her] by others. Also, witnesses must be sworn to tell the truth and must be available for questions from the other side. News reports about the case are not subject to these standards, and if you look at or listen to such reports, you may be exposed to information, true or not, which unfairly favors one side and which the other side is unable to respond to.

231. 185 Md. App. 440, 971 A.2d 331 (Md. Ct. Special App. 2009). 232. No. 0953/08 (Md. Ct. Special App. Dec. 3, 2009) (unreported); see Andrea Siegel, Judges Confounded by Jury’s Access to Cyberspace, Balt. Sun, Dec. 19, 2009, http://articles.baltimoresun.com/2009-12-13/ news/bal-md.ar.tmi13dec13_1_deliberations-period-florida-drug-case-jurors. 233. Julie Bykowicz, 5 Dixon jurors recalled as witnesses, Balt. Sun, Dec. 30, 2009, http://articles.baltimoresun.com/2009-12-30/news/bal-md.dixon30dec30_1_juror-misconduct-new-trial-arnold-mweiner. Dixon eventually reached a plea agreement that included her resignation. 234. Lisa Beisel, Jury acquits man in attempted murder, The [Annapolis, Md.] Capital, Nov. 7, 2009, http://www.hometownannapolis.com/news/top/2009/11/07-17/Jury-acquits-man-in-attempted-murder.html?ne=1. 235. Md. Ct. R. 16-110 (2010), available at http://mdcourts.gov/reference/rule16-110.pdf. 236. Tricia Bishop, New rule could end tweets from trials statewide, Balt. Sun, Feb. 22, 2010, http://articles. baltimoresun.com/2010-02-22/news/bal-md.twitter22feb22_1_cell-phones-trials-tweets. Reynolds Courts & Media Law Journal

353


Jury Instructions for the Modern Age In fairness to both sides, therefore, please avoid such news reports. Put them aside immediately if they come to your attention. Your sworn obligation is to decide this case solely on the evidence presented in the courtroom.237

Criminal Instructions After instructing jurors not to discuss the case with anyone during the trial, including fellow jurors and the jurors’ families, the preliminary instruction in Massachusetts’ model criminal instructions includes an optional instruction with an admonition to avoid coverage of the case; both mention only traditional media. As I have told you, you must decide this case solely on the evidence presented in the courtroom. You must completely disregard any newspaper, television or radio reports about this case which you might encounter. It would be unfair to consider such reports, since they are not evidence and the parties will have no opportunity to challenge their accuracy or to explain them. Please try to avoid such news reports. If any come to your attention, it is your sworn responsibility to put them aside immediately and to direct your attention elsewhere.238

The instruction regarding trial publicity uses similar language but adds an explanation for the rationale of the rule. During the time that you serve on this jury, there may be reports about this case in the newspapers or on radio or television. You may be tempted to look at or listen to them. Please do not do so. Due process of law requires that the evidence you consider in reaching your verdict meet certain standards; for example, a witness may testify about events he has personally seen or heard but not about matters told to him by others. Also, witnesses must be sworn to tell the truth and must be available for questions from the other side. News reports about the case are not subject to these standards, and if you look at or listen to such reports, you may be exposed to information, true or not, which unfairly favors one side and which the other side is unable to respond to. In fairness to both sides, therefore, please avoid such news reports. Put them aside immediately if they come to your attention. Your sworn obligation is to decide this case solely on the evidence presented in the courtroom.239

The text of the recess instruction does not include an admonition against jurors undertaking independent research about a case, although a note to the instruction states that, “The judge may also wish to caution jurors not to conduct their own research or investigations (including Internet or dictionary searches).”240

Cases Massachusetts had some of earliest appeals based on juror use of the Internet. In Commonwealth v. McCaster, an appeals court upheld a drug conviction in which the defense agreed to proceed with 11 jurors rather than 12 after three jurors who were found to have consulted outside sources during deliberations were removed and replaced with

237. Mass. Continuing Legal Ed., Inc., Mass. Super. Ct. Civ. Pract. Jury Inst. [CIVJIII MA-CLE] (2009), Instr. 13-1. 238. Massachusetts Continuing Legal Ed., Inc., Crim. Model Jury Instructions for Use in the Dist. Ct. [MJI MA-CLE], Instr. 1.120 (2009). 239. MJI MA-CLE 1.260 (2009). 240. MJI MA-CLE 1.240, Note 2 (2009); see also Com. v. Rodriguez, 63 Mass. App.Ct. 660, 678 n.11, 828 N.E.2d 556, 568 n.11 (Mass. App.Ct. 2005) (instruction to jurors to not to do their own research and investigation “obviously encompassed Internet research as well.”).

354

Volume 1, Issue 3


Jury Instructions for the Modern Age two alternates. One of these jurors researched the chemical composition of cocaine online; the other two jurors spoke to two police officers and a friend, respectively.241 In the midst of the prosecution’s case in a rape trial, a juror posted the following message on an Internet listserv stating that she was “stuck in a 7 day-long Jury Duty rape/assault case ... missing important time in the gym, working more hours and getting less pay because of it! Just say he’s guilty and lets [sic] get on with our lives!”242 Two members of the listserv responded: one was an attorney in New York who wrote that the message was inappropriate, and recommended that the juror inform the judge of the situation. The juror did not inform the judge in the rape case, but the New York attorney informed defense counsel.243 The trial court initially denied a defense motion for postverdict voir dire of the jury, and was reversed.244 On remand the trial court questioned the juror, and determined that “there is nothing in the evidence before the Court to indicate that [the juror] was ever at any time exposed to any extraneous matters” and that “there is no basis for any further action in this matter.”245 The Supreme Judicial Court remanded again, ordering the trial judge to conduct a more probing investigation.246 The judge again reached the same conclusion, and the appeals court affirmed.247 In a 2005 decision, the Massachusetts Appeals Court reversed a cocaine trafficking conviction. Although the reversal was primarily based on the trial court’s improper removal of a juror for speaking to relatives about the case, the appeals court also noted that another juror’s research of the Massachusetts statute regarding impaneling, sequestering, and discharge of jurors “reinforces our conclusion that the verdicts cannot stand.”248 More recently, in a 2011 priest rape trial, a juror who was also editor of a local newspaper was removed after he posted several tweets during the proceedings, including one stating, “Sucks that you can’t tweet from the jury box. What’s the fun in that?”249 The juror later blogged about the experience, saying that “The judicial system – at least as represented by the Berkshire Superior Court in Pittsfield, Mass. – is light years behind the curve when it comes to the role of social media in fomenting and perpetuating democracy.”250

Michigan – Civil: Modern;  Criminal: Modern Civil Instructions Michigan’s Model Civil Jury Instructions were amended in 2009 to specifically address juror use of the Internet and other resources during trial, and provide an explanation of the rationale behind the rules.

241. 46 Mass. App. Ct. 752, 710 N.E.2d 605 (1999). 242. Com. v. Guisti, 434 Mass. 245, 249-50, 747 N.E.2d 673, 678 (Mass. 2001). 243. Id. at 250, nn.6 & 7, 747 N.E.2d at 678, nn.6 & 7. 244. Id. at 253, 747 N.E.2d at 681. 245. Com. v. Guisti, 449 Mass. 1018, 1018, 867 N.E.2d 740, 740 (Mass. 2007). 246. Id. at 1018-19, 867 N.E.2d at 741. 247. Id. at 1019, 867 N.E.2d at 742. 248. Com. v. Rodriguez, 63 Mass. App. Ct. 660, 828 N.E.2d 556 (2005). The statute researched by the juror was Mass Laws ch. 234, § 26B. Id. at 678, 828 N.E.2d at 568. 249. Bob Gardinie, Rape trial of ex-priest now before jury: Deliberations set to start in case; juror dismissed after using “Twitter,” Albany (N.Y.) Times-Union, Feb. 9, 2011, http://www.timesunion.com/local/article/Rape-trial-of-ex-priest-now-before-jury-1004872.php; see also Rosemary Armao, Big mouth in the jury box, City Brights Blog, Albany (N.Y.) Times-Union, Feb. 14, 2011, http://blog.timesunion. com/armao/big-mouth-in-the-jury-box/286/. 250. Seth Rogovoy, Twitter Rubs Up Against the Judicial System, The Rogovoy Report, http://rogovoy. com/news1824.html. Reynolds Courts & Media Law Journal

355


Jury Instructions for the Modern Age (2) Until I discharge you as jurors, you may not read, listen to, or watch any news reports about this case. Under the law, the evidence you consider to decide the case must meet certain standards. For example, witnesses must swear to tell the truth, and the lawyers must be able to cross-examine them. Because news reports do not have to meet these standards, they could give you incorrect or misleading information that might unfairly favor one side. So, to be fair to both sides, you must follow this instruction. (3) While you are in the courtroom and while you are deliberating, you are prohibited altogether from using a computer, cellular telephone, or any other electronic device capable of making communications. You may use these devices during recesses, but even then you may not use them to obtain or disclose the kind of information I will describe next. (4) Until you are discharged as jurors on this case, even when you are not in court, you may not use a computer, cellular phone, any electronic device capable of making communications, or any other method, to get any information about this case. Information about this case means: (a) any information about a party, witness, attorney, or court officer; (b) any news accounts about this case; (c) any information on any topics raised in the case, or testimony offered by any witness; and (d) any other information that you might think would be helpful in deciding the case. *** (6) You must not do any investigations on your own or conduct any experiments of any kind. This includes using the Internet for any purpose regarding this case.251

These changes were made after the Michigan Supreme Court revised its court rules to require such an instruction.252 (2) The court shall instruct the jurors that until their jury service is concluded, they shall not (a) discuss the case with others, including other jurors, except as otherwise authorized by the court; (b) read or listen to any news reports about the case; (c) use a computer, cellular phone, or other electronic device with communication capabilities while in attendance at trial or during deliberation. These devices may be used during breaks or recesses but may not be used to obtain or disclose information prohibited in subsection (d) below; (d) use a computer, cellular phone, or other electronic device with communication capabilities, or any other method, to obtain or disclose information about the case when they are not in court. As used in this subsection, information about the case includes, but is not limited to, the following: (i) information about a party, witness, attorney, or court officer; (ii) news accounts of the case; (iii) information collected through juror research on any topics raised or testimony offered by any witness; (iv) information collected through juror research on any other topic the juror might think would be helpful in deciding the case.253

251. Mich. Sup. Ct. Comm. on Model Civ. Jury Instrs,, Mich. Model Civ. Jury Instr. [Mich. M Civ. JI] 2.06 (2009), available via http://courts.mi.gov/mcji/MCJI.htm. The 2009 changes incorporated former M Civ JI 2.07 (“Jurors Not to Consider Information Received outside Presence of Court”) and M Civ JI 2.12 (“Caution about Publicity in Cases of Public Interest”) into M Civ JI 2.06. 252. See Tresa Baldas, For jurors in Michigan, no tweeting (or texting, or Googling) allowed, Nat’l L. J., July 1, 2009, http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202431952628. 253. Mich. Ct. R. 2.511(H)(b) (as amended eff. Sept. 1, 2009). See Amendment of Rule 2.511 of the Michigan Court Rules, ADM File No. 2008-33 (Mich. order June 30, 2009), available at http://courts.michigan. gov/supremecourt/Resources/Administrative/2008-33.pdf. See also Baldas, id.

356

Volume 1, Issue 3


Jury Instructions for the Modern Age

Criminal Instructions The criminal jury instructions prepared by the Michigan State Bar do not have the official sanction of the courts, and their use “remains discretionary with the capable trial judges of this state.”254 Nevertheless, the instructions have been updated to account for new technologies, although they do not identify specific web sites and services. (1) The only information that yon will receive about this case will come to you in this courtroom. You must not consider any information that comes from anywhere else. [You must not read newspaper headlines or articles relating to the trial. Also you must not watch or listen to television and radio comments or accounts of the trial while it is in progress.] (2) Until your jury service is concluded, you are not to discuss the case with others, including other jurors, except as otherwise authorized by the court. You are not to read or listen to any news reports about the case. You may also not use a computer, cellular phone, or other electronic device with communication capabilities while in attendance at trial or during deliberation. These devices may be used during breaks or recesses but may not be used AT ANY TIME to obtain or disclose (a) information about a party, witness, attorney, or court officer, (b) news accounts of the case, or (c) information collected through juror research on any topics raised or testimony offered by any witness or by any exhibit. (3) [You must not visit the scene of the occurrence that is the subject of this trial. If it should become necessary that you view or visit the scene, you will be taken as a group under court supervision. You must not consider as evidence any personal knowledge you have of the scene.] (4) You must not do any investigations on your own or conduct any experiments of any kind. This includes using the Internet for any purpose regarding this case. (5) If you discover a juror has violated my instructions, you should report it to me.255

Cases In August 2010, a Michigan juror was removed from the jury in a criminal trial and punished for contempt after posting a message on Facebook during trial stating, “actually excited for jury duty tomorrow. It’s gonna be fun to tell the defendant they’re GUILTY.” Macomb County Circuit Court Judge Diane Druzinski found the juror, Hadley Jons, guilty of contempt of court, and ordered her to pay a $250 fine and to write an essay about the constitutional right to a fair trial.256

Minnesota – Civil: Modern;  Criminal: Modern Civil Instructions One of Minnesota’s admonitions against juror use of the Internet, which mentions several specific sites and services, is contained in Minnesota’s preliminary civil instruction. Now a few words about your conduct as jurors: ***

254. See People v. Vaughn, 447 Mich. 217, 235 n.13, 524 N.W.2d 217, 226 n.13 (1994), abrogated on other grounds by People v. Carines, 460 Mich. 750, 597 N.W.2d 130 (Mich. 1999). 255. Mich. Crim. Jury. Instr. [CJl2d] 2.16 (2d ed,, 1991, supp. 2011). 256. Woman Sentenced Over Facebook Posting, ClickOnDetroit (WDIV-TV, Detroit), Aug. 29, 2010, http://www.clickondetroit.com/news/24806080/detail.html. Reynolds Courts & Media Law Journal

357


Jury Instructions for the Modern Age Do not do your own investigation. Do not ask people about this case. Do not refer to any newspapers, books, magazines, the internet, or other sources of information to answer questions of fact or of law raised by the evidence or by the court’s instructions. When you go home during the trial, do not talk to your family, friends, or others about the case. You may tell them you are a juror on a civil case and that is all that you should tell them. Do not report your experiences as a juror while the trial and deliberations are going on. Do not e-mail, blog, tweet, text or post anything to Facebook, MySpace, or other social networking sites about this trial. Do not visit any “chat rooms” where this case may be discussed. *** Remember you cannot consider anything you hear or learn about this case outside this courtroom. These rules are important. If these rules are not complied with, the whole trial may need to be redone and we will have to start over from the beginning.257

The instruction for recesses repeats the previous admonition in summary form. While you are adjourned, there are some rules you must follow: *** 4 You must not refer to any newspapers, books, magazines, the internet, or other sources of information to answer questions of fact or of law raised by the evidence or by the court’s instructions. 5 You must not e-mail, blog, tweet, text or post anything to Facebook, MySpace, or other social networking sites about this trial. Do not visit any “chat rooms” in order to discuss this case. These rules are important. If these rules are not complied with, the whole trial may need to be redone and we will have to start over from the beginning.258

Criminal Instructions Minnesota’s criminal jury instructions have been updated to specifically reference several social media services and websites in their admonitions against jurors commenting on or researching cases. The preliminary criminal instruction provides: There are things you should not do during this trial. You are not investigators. …Do not research anything about the case, including the issues, evidence, parties, witnesses, location, or the law, through any form of written, print, electronic or Internet media. *** You do not have to stay away from people and refuse to speak to them. Do whatever you wish, but do not talk about this case, and do not talk at all to anyone involved in it. Do not read about this case in the newspapers or listen to news about it on radio or television. Do not e-mail, blog, tweet, text or post anything to your Facebook, MySpace, or other social networking sites about this trial. Do not visit any “chat rooms” where this case may be discussed.259

The “plain language” version of this instruction repeats these admonitions,260 and adds a mention of the possible consequences of failure to follow the instruction: … Do not e-mail, blog, tweet, text or post anything to your Facebook, MySpace, or other social networking sites about this trial. Do not visit any “chat rooms” where this case may be discussed. 257. 4 Minn. Prac., Jury Instr. Guides—Civil [CIVJIG] 10.15 (5th ed. 2010). 258. CIVJIG 10.40 (2010 5th ed.). 259. 10 Minn. Prac., Jury Instr. Guides—Crim. [CRIMJIG] 1.02A (5th ed. 2010). 260. A note to the instructions reminds judges that “[e]ach judge will probably find jurors respond best to a statement about the process and the case that is phrased as naturally as possible by the judge.” 10 Minn. Prac., Jury Instr. Guides--Criminal A, ch. 1, note 1 (5th ed. 2010).

358

Volume 1, Issue 3


Jury Instructions for the Modern Age Do not read or listen to news reports about the case. Do not do your own investigation. Do not ask people about this case. Do not visit any of the locations mentioned in the trial. Do not research anything about the case, including the issues, evidence, parties, witnesses, location, or the law, through any form of written, print, electronic or Internet media. If you do not follow these instructions, you may jeopardize the trial. This may require the whole trial to be redone and we will have to start over.261

The plain language version is repeated in the recess instruction.262

Cases In a recent decision, a Minnesota appeals court affirmed a trial court’s denial of a hearing on whether Facebook postings by a prosecutor affected the jury in a trial where the defendant was convicted of three counts of attempted first-degree murder, one count of first-degree assault, and two counts of second-degree assault.263 The Facebook comments, posted on the day that the case was submitted to the jury, discussed one of the jurors and said that the prosecutor was “keep[ing] the streets of Minneapolis safe from the Somalias [sic].”264 But the appeals court found no evidence that jurors saw the comments, placing faith in the instructions they received during trial.265 Here, the jury was instructed throughout the trial not to research the case, the issues, or anyone involved in the case on the Internet. Appellant presented evidence in the form of two affidavits—one by each of his trial attorneys—stating that the prosecutor had posted the alleged comments on her public Facebook page. But appellant did not present evidence that any juror had been exposed to the comments. Absent evidence of juror exposure, appellant did not establish a prima facie case of juror misconduct.266

Mississippi – Civil: Modern;  Criminal: Modern Civil Instructions Misssissippi’s civil jury instructions discuss Internet use in the context of recesses and adjournments, using the same language in both the initial and recess instructions. When you go home during the trial, do not talk to your family, friends, or others about the case. You may tell them you are a juror on a case and that is all that you should tell them. Do not discuss your experiences as a juror while the trial and deliberations are going on. Do not e-mail, blog, tweet, text or post anything to your Facebook, MySpace, Twitter, or other social networking sites about this trial. Do not visit any “chat rooms” where this case may be discussed.267

The Mississippi civil instructions also include an admonition against juror research that has been updated to include the Internet. Until you are discharged from serving on this jury, you are not to read, listen to, or watch any news reports about this case. You must not do any research on your own or as a group. You must not use dictionaries, a computer, your phone, the Internet, or use any other research materials to learn anything about this case. You are not to contact anyone, including a family doctor, accountant, or at 261. CRIMJIG 1.02B (5th ed. 2010). 262. CRIMJIG 2.08 (5th ed. 2010). 263. State v. Usee, — N.W.2d —, 2011 WL 2437271 (Minn. App. June 20, 2011). 264. Id., 2011 WL 2437271, at *6. 265. Id. at *7. 266. Id. 267. Miss. Prac. Model Jury Instr. Crim. § 1:2.50 (2010) (introductory instruction); see also Miss. Prac. Model Jury Instr. Civ. § 1:15.50 (recess instruction) (using same language). Reynolds Courts & Media Law Journal

359


Jury Instructions for the Modern Age torney, to ask him/her anything about this case. You must not visit or view the scene(s) of any event(s) involved in this case. You must decide this case based only on the evidence presented in this trial and the instructions of law that I will give you.268

Criminal Instructions

Similar language is used in some of the state’s criminal jury instructions.269 But other criminal instructions have not been updated, and still admonish jurors to “not read any newspaper articles about the case and you must not listen to any news broadcasts or watch any news telecasts about this case.”270

Missouri – Civil: Modern;  Criminal: Modern Civil Instructions

Missouri updated its general civil jury instruction in 2007 to bar Internet research,271 and again in 2009 to explicitly include web services in the prohibition against juror research or communication.272 The instruction also relates the possible consequences of failing to obey this admonition.273 (7) OUTSIDE INFLUENCES During the trial, you should not remain in the presence of anyone who is discussing the case when the court is not in session. Otherwise, some outside influence or comment might influence a juror to make up his or her mind prematurely and be the cause of a possible injustice. For this reason, the lawyers and their clients are not permitted to talk with you until the trial is completed. (8) PROHIBITION OF JUROR RESEARCH OR COMMUNICATION ABOUT THIS CASE Your deliberations and verdict must be based only on the evidence and information presented to you in the proceedings in this courtroom. Rules of evidence and procedure have developed over many years to make sure that all parties in all cases are treated fairly and in the same way and to make sure that all jurors make a decision in this case based only on evidence allowed under those rules and which you hear or see in this courtroom. It would be unfair to the parties to have any juror influenced by information that has not been allowed into evidence in accordance with those rules of evidence and procedure, or to have a juror influenced through the opinion of someone who has not been sworn as a juror in this case and heard evidence properly presented here. Therefore, you must not conduct your own research or investigation into any issues in this case. You must not visit the scene of any of the incidents described in this case. You must not conduct any independent research or obtain any information of any type by reference to any person, textbooks, 268. Miss. Prac. Model Jury Instr. Civil § 1:15.60 (2010). 269. See Miss. Prac. Model Jury Instr. Crim. § 1:2.50 (2010) (recess admonition); Miss. Prac. Model Jury Instr. Crim. § 1:2.70 (2010) (research admonition). 270. Miss. Prac. Model Jury Instr. Crim. § 1:1 (2010) (preliminary instruction). 271. In re Revisions to MAI-Civil (Mo. May 1, 2007), slip. op. at 5, available at http://www.courts.mo.gov/ file.jsp?id=7658. 272. In re Revisions to MAI-Civil, 2009 Mo. LEXIS 544, 5-6 (Mo. Nov. 23, 2009), at *5-6, available at http://www.courts.mo.gov/file.jsp?id=41859. 273. The Missouri instructions distinguish between instructions and admonitions. “[D]irections or admonitions given by a trial judge to a jury during the course of trial are not instructions. Examples of such directions or admonitions include a direction not to visit the scene of an accident or an oral repetition of the admonition to refrain from discussing the case during a recess. Considerable discretion is afforded to the trial judge, subject to appropriate requests or objections of counsel, to determine the scope and frequency of such directions or admonitions.” Mo. Approved Jury Instr. (Civil) [MAI Civil] 2.01, note B (6th ed. 2010, supp. 2011).

360

Volume 1, Issue 3


Jury Instructions for the Modern Age dictionaries, magazines, the use of the Internet, or any other means about any issues in this case, or any witnesses, parties, lawyers, medical or scientific terminology, or evidence that is in any way involved in this trial. You are not permitted to communicate, use a cell phone, record, photograph, video, e-mail, blog, tweet, text, or post anything about this trial or your thoughts or opinions about any issue in this case to any other person or to the Internet, “facebook”, “myspace”, “twitter”, or any other personal or public web site during the course of this trial or at any time before the formal acceptance of your verdict by me at the end of the case. If any of you break these rules, it may result in a miscarriage of justice and a new trial may be required.274

A note to this admonition advises that judges may also wish to admonish jurors regarding use of cell phones and other electronic devices: The trial court has considerable discretion regarding the use of cell phones or other electronic devices in the courthouse and during trial. Judicial discretion may be exercised by oral admonition, the addition of a paragraph regarding such devices at the end of MAI 2.01, or using a separate instruction.275

Criminal Instructions Missouri modified its approved criminal instructions in 2008 to address juror use of the Internet.276 After these modifications, the instruction for the first recess and for adjournment states, It is the Court’s duty to instruct you now upon a matter about which you will be reminded at each recess or adjournment of Court. Until this case is given to you to decide, you must not discuss any subject connected with the trial among yourselves, or form or express any opinion about it, and, until you are discharged as jurors, you must not talk with others about the case, or permit them to discuss it with you or in your hearing. Your decision must be based only on the evidence presented to you in the proceedings in the courtroom. You should not research this case on the Internet or by any other means. (You should not read, view, or listen to any newspaper, radio, or television report of the trial.)277

Montana – Civil: Archaic;  Criminal: Modern Civil Instructions Montana’s civil pattern instructions do not mention the Internet. Instead they include a general admonition that “the only evidence you will consider in this case must come to you while you are together as a jury in the courtroom, in the presence of the judge, the attorneys and the parties.”278 The instruction then tells jurors not to discuss the case, and states, “[i]t is necessary to avoid even the appearance of unfairness or improper conduct.”279 You should not read newspaper headlines or articles relating to the trial. You must not watch or listen to television and radio comments or accounts of the trial while it is in progress. You must not make any investigations on your own, view any material objects not presented in court or conduct any experiments of any kind. [I would particularly warn you against inspecting the accident scene involved in this lawsuit.]

274. MAI Civil 2.01, §8 (6th ed. 2010, supp. 2011). 275. Id., note F (6th ed. 2010, supp. 2011). 276. See In re: Revisions, additions and withdrawals to MACH-CR and MAI-CR 3d (Mo. May 20, 2008), available at http://www.courts.mo.gov/file.jsp?id=10320 (modifying Mo. Approved Instr. (Crim.) 300.04 [3d ed. 1987] [MAI-CR 3d] [admonition to avoid coverage of case] and MAI-CR 3d 302.01 [instruction on what is evidence]). 277. Mo. Approved Jury Instr. (Crim.) [MAI-CR] 300.04 (2011). 278. Montana Pattern Instr., Civil [MPI Civil] 1.04 (2007). 279. Id. Reynolds Courts & Media Law Journal

361


Jury Instructions for the Modern Age Failure to observe these precautions might require the retrial of this case, which would result in log delay, considerable expense to the county and the parties and a waste of your time and effort.280

Criminal Instructions Montana’s criminal jury instructions admonish jurors not to consult the Internet, and name a number of sites specifically by name: Fourth, during this trial you may not make any investigation of this case or inquiry outside of the courtroom on your own. You may not go to any place mentioned in the testimony without explicit order from me to do so. You must not consult any books, dictionaries, encyclopedias, research online, using Google, Yahoo, Bing, or any other Internet search engine, or use other reference materials or other sources of information unless I specifically authorize you to do so. Fifth, do not read about the case in the newspapers. Do not listen to radio or television broadcasts about the trial. News accounts may be incomplete or may contain matters that are not proper evidence for your consideration. This prohibition extends to all forms of communication, whether in person, written, or through any electronic device or media, such as the telephone, a cell or smart phone, BlackBerry, PDA, computer, the Internet, any Internet service, any text or instant messaging service, and any Internet chat room, blog, or website such as Facebook, MySpace, YouTube, and Twitter. You must base your verdict solely on what is presented in Court. You are now sworn jurors in this case, and you will hear the evidence and thus be in a better position than anyone else to know the true facts.281

Nebraska – Civil: Modern;  Criminal: Modern Civil Instructions Nebraska’s civil jury instruction to be given before trial was amended in 2010 to warn jurors against using any evidence other than what was presented in court, including their personal knowledge and experience. The instruction also bars use of various named web sites, and prohibits all use of cell phones and other devices in the courtroom. (4) In determining what the facts are, you must rely solely upon the evidence that is presented here within the four walls of this courtroom and that general knowledge that everyone has. Other than that general knowledge that everyone has, you must disregard your personal knowledge of any of the facts in this case. Do not use any electronic device in any way to discover or share any information about this case. This includes cell phones, Blackberries, computers, and other electronic devices. This includes searching, blogging, emailing, texting, using Facebook, Twitter, My Space, LinkedIn, or any similar social network. Do not conduct any of your own independent research about this case. Do not consult dictionaries, other reference materials, or electronic devices to obtain any information about this case—about the parties, the issues, the locations, or any thing else that has to do with this case. [Do not go near any of the places discussed in this case.] Do not pay any attention to any news reports regarding this case. Any information obtained outside of this courtroom, whether through reference materials, newspapers, television, [or] computers or other electronic devices, [or visits to the places involved in this case,] could be misleading, inaccurate, or incomplete. For example, information found in newspapers or books, or on the internet, may be wrong. [The places involved in this case may have changed.] In addition, relying on any of this information would be unfair because the parties would not have the opportunity to refute, explain, or correct it.

280. Id. 281. Mont. Crim. Jury Instr. [MCJI] 1-101 (2009), available at http://www.doj.mt.gov/resources/criminaljury/chapter1.pdf.

362

Volume 1, Issue 3


Jury Instructions for the Modern Age (5) You are not allowed to use a computer, cell phone, or other electronic device at all while you are in the courtroom and during your deliberations near the end of the trial. You may use such devices during breaks or recesses, but you may not use them to obtain or disclose information about this case or any of the people involved in this case. *** Again let me remind you that you must not discuss this case with anyone, not even with each other, until near the end of the trial when I tell you to do so and you go into the jury room to discuss your verdict. You must not send, search for, or receive any communication about this case, whether in person, on the phone, through any electronic device, or in any other way until such time as I instruct you that you may do so. You must not make up your minds regarding this case until after submit it to you for your consideration and your verdict 282

A lengthy comment to this instruction, under the heading â&#x20AC;&#x153;The Problem Of Electronic Devices,â&#x20AC;? recommends that the court undertake a post-recess inquiry into whether the jurors followed the pre-recess electronic-devices admonition. In 2010 the Committee added admonitions to this pattern instruction regarding juror use of electronic devices. The problems include jurors using such devices to do independent research and to communicate with others, outside the courtroom or in, about the trial. A large part of the Committeeâ&#x20AC;&#x2122;s approach to this problem is an attempt to educate jurors about the problem and how seriously the court (and the lawyers) takes the problem. The Committee recommends that this education begin immediately. *** As noted above, the admonitions regarding electronic devices attempt to educate jurors to the problem. There may be more that individual judges can do in this regard and the Committee suggests that judges consider and try whatever they think is necessary to accomplish this goal. One thing that judges might consider is instructing jurors on the consequences of violating these electronic-device admonitions: mistrials, new trials, waste of time, money, and resources. *** The world of electronic devices is particularly fast moving. Please be alert to new devices and new problems (such as the at-one-time new problems of jurors reading news reports off of small, handheld devices, jurors taking in-court photographs with their phones, and intimidating text messages being sent to jurors).283

The recess admonition reminds jurors to avoid on- and off-line information about the case. Do not read, watch, or listen to any reports about this case in the newspaper, on television, on the radio, on your computer, or on any other electronic device. If any information about this case does come to your attention, you must immediately disregard it.]284

A comment to this instruction recommends that the court undertake a post-recess inquiry into whether the jurors followed the pre-recess electronic-devices admonition. A part of the whole point of the electronic-device admonitions is to educate jurors about the problems these devices present and how serious the court and the lawyers consider these problems to be. The Committee believes that these post-recess questions will help convey to the jury just how serious the court is about the admonitions.285 282. 1 Neb. Prac., Neb. Jury Inst., Civ. [NJI2d Civ.] 1.00 (2d ed., 2010-11). 283. NJI2d Civ. 1.00, Comment II (2010-2011). 284. NJI2d Civ. 1.00A (2010-2011). 285. Id., Comment B. Reynolds Courts & Media Law Journal

363


Jury Instructions for the Modern Age The instruction prior to deliberation briefly reiterates this admonition. [While you are in the jury room, do not attempt to contact anyone outside of the jury room on your own. Do not call anyone, text anyone, or use Facebook, Twitter, My Space, or any other social network to communicate with anyone. If you need to get a message to anyone outside of the jury room, for example, to tell a family member that you will be home late, let (here designate appropriate person) know [in writing].]286

Criminal Instructions The language from the civil instructions is largely repeated in the Nebraska criminal jury instructions.287

Nevada – Civil: Archaic;  Criminal: No Instructions Civil Instructions Nevada’s newly-published civil jury instructions tell jurors not to speak to fellow jurors, attorneys and court personnel about cases, or to “undertake any investigation of the case on your own, or endeavor to research legal or factual issues on your own.”288 “To do so,” the jurors are told, “might contaminate your verdict.”289 There is no further explanation, and no mention of social media or the Internet.

Criminal Instructions Nevada’s criminal procedure law requires that judges admonish the jury that “[n]o juror may declare to any fellow jurors any fact relating to the case as of the juror’s own knowledge.”290 But Nevada does not have a modern set of jury instructions for criminal cases.291

Cases A Las Vegas man convicted of sexual assault and possession of child pornography in 2007 sought a new trial, but the district court denied the motion. The defense had argued that the man was unaware that the photographs that he had downloaded from the Internet depicted children under 16 years old, and three jurors said that they had undertaken their own tests to see if they could determine the age of various young women. One did this online, by looking at various pornographic web sites, while the other two conducted their experiments by observing people at church and at a mall. The court held that the Internet research was improper, but that “the average hypothetical juror would [not] be influenced by what that juror did.”292 The Nevada Supreme Court affirmed.293 In an unpublished decision in September 2010, the Nevada Supreme Court reversed the conviction in another sexual assault case where the jury foreperson conducted inde 286. NJI2d Civ. 5.01 (2010-2011). 287. See 1 Neb. Prac., Neb. Jury Inst. Crim. [NJI2d Crim.] 1.0 (2d ed., 2010-11) (preliminary instruction); NJI2d Crim. 1.1 (2010-11) (recess instruction); and NJI2d Crim. 9.0 (2010-11) (pre-deliberation instruction). 288. Civil Subcomm. of the State Bar of Nev., Nev. Jury Instrs., Gen’l Instr..2 (2011). 289. Id. 290. Nev. Rev. Stat. § 175.121 (2010). 291. In the early 2000s, the Nevada Bar Association established a committee to draft such instructions. 292. K.C. Howard, Juror misconduct cited, Las Vegas Rev.-J., Dec. 1, 2007, http://www.lvrj.com/ news/11993056.html. 293. Zana v. State. 216 P.3d 244, 248-49 (Nev. 2009). See also Zana v. State, — P.3d —, 2010 WL 4065818 (Nev. Sep. 29, 2010) (ordering hearing on habeas corpus petition).

364

Volume 1, Issue 3


Jury Instructions for the Modern Age pendent research online on the physical effects of sexual assault, and shared her research with fellow jurors.294

New Hampshire – Civil: Archaic;  Criminal: Modern Civil Instructions New Hampshire’s civil instructions restrict jurors from talking about a case, but do not mention social media. The instructions also do not explicitly prohibit outside research, on the Internet or otherwise. You are instructed not to discuss this case among yourselves or with anyone else; keep an open mind throughout the proceedings and do not decide the case individually or as a group until such time as all of the evidence has been presented at which time you will retire to the deliberation room to decide this case by your verdict. The purpose of this instruction is to ensure that you will decide this case based solely upon all of the evidence presented within the confines of this courtroom (and what you observed on the view) and not based upon conversations you may have with someone unrelated to the case or on some outside influence that has no relevance or valid connection to this case.295

Jurors are also instructed that they may base their decision only on evidence presented in court, again with no mention of the Internet or social media. You should decide the facts based on the evidence, that is, the testimony of the witnesses, the exhibits which will accompany you to the jury deliberation room, and what you observed during the course of the view. In deciding the facts, you should consider the evidence as well as the reasonable inferences you draw therefrom. You must not decide the facts on the basis of anything said by counsel not supported by the evidence or anything you may have read or heard about this case, or cases such as this, outside this courtroom or on the basis of any sympathy, prejudice, bias, or fear or favor for or against either party.296

Criminal Instructions While a committee of the New Hampshire Bar Association has drafted new criminal jury instructions for use in the state, they have not yet been formally approved.297 Unlike the prior instructions, which do not discuss extrinsic evidence in any detail,298 the draft instructions include the Internet in the pre-trial admonition to avoid trial publicity. Sixth, do not read about this case in the newspapers or on the internet or listen to any radio or television reports about the case or about anyone who has anything to do with it. If a newspaper head-line or news broadcast about the case catches your eye or ear, do not examine the article or watch or listen to the broadcast any further. The reporter may not have listened to all of the testimony, may be getting information from people who you will not see here in court under oath and subject to crossexamination, may emphasize an unimportant point, or may simply be wrong. In fact, until the trial is over, I suggest that you avoid reading any newspapers and avoid listening to any TV or radio newscasts at all. I do not know whether there might be any news reports of this case, but if there are, you might inadvertently find yourself reading or listening to something be-fore you could do 294. Lockwood v. State, Nos. 50864, 52615 (table), 2010 WL 3529416 (text) (Sept. 3, 2010) (superseding No. 50864, 2009 WL 4281270 [Nev. Nov. 23, 2009]). 295. N.H. Civ. Jury Instr. § 0.2 (2011). 296. N.H. Civ. Jury Instr. § 2.2 (2011). 297. Crim. Jury Instr. Drafting Comm., N.H. Bar Assn., Criminal Jury Instructions: Drafting Committee Version (Sept. 2010), at 2, available at http://www.nhbar.org/uploads/pdf/CJI.pdf. 298. The prior criminal instructions, adopted in 2005, speak only in general terms about what is evidence that a jury may consider in a case. See N.H. Crim. J. Inst. (1985) 1.01 – 1.03, 1.04a (2005), available at http://www.nhbar.org/legal-links/cji-1985.asp. Reynolds Courts & Media Law Journal

365


Jury Instructions for the Modern Age anything about it. If you want, you can have your spouse or a friend clip out any stories and set them aside to give you after the trial is over. I can assure you, however, that by the time you have heard the evidence Thus, you will know more about the matter than anyone will learn through the news media. If you inadvertently learn anything about this case, please let me know immediately. You must base your verdict solely and exclusively on the evidence received in court during the trial. Seventh, do not do any research, such as consulting dictionaries or other reference materials, and do not make any investigation about the case on your own.299

The admonition to “not watch or listen to any news reports concerning this trial on television or on radio and … not read any news accounts of this trial in a newspaper or on the internet” is repeated the in draft recess instruction.300

Cases In 2006, the New Hampshire Supreme Court rejected a rape convict’s appeal on the grounds that four blog posts by a juror violated the defendant’s right to an impartial jury.301 One of the comments mentioned the juror’s upcoming jury duty (Lucky me, I have Jury Duty! Like my life doesn’t already have enough civic participation in it, now I get to listen to the local riff-raff try and convince me of their innocence”),302 while the others generally conveyed the juror’s opinions regarding the police, drunk driving, and the death penalty for juveniles.303 The trial court’s individual voir dire of Juror 2 was comprehensive and thorough. … The trial court concluded that Juror 2 fairly and impartially reviewed the evidence and applied the law as instructed and was, therefore, qualified to sit on the jury panel. We cannot say that the trial court’s findings are against the weight of the evidence. Moreover, the record supports the trial court’s determination that the remaining jurors were not affected by the existence of Juror 2’s blog.304 In October 2009 a juror pleaded guilty to a violation and agreed to reimburse the court $1,200 in two days of payments to jurors after he told fellow jurors that the defendant in a sexual assault trial had prior convictions for molesting children, a fact that the juror found online.305 “If it’s someone’s third offense for driving while intoxicated, shouldn’t you know?” the juror said in a press interview. “If it’s a fourth theft charge, shouldn’t you know? Everybody should (be concerned) that jurors are not told everything.”306 299. N.H. Bar Ass’n. Crim. Jury Instr. Drafting Comm., Crim. Jury Instrs., supra, at 12. 300. Id. at 13. 301. State v. Goupil, 154 N.H. 208, 908 A.2d 1256 (2006). 302. Id. at 214, 908 A.2d at 1262. 303. As described by the court, Once he was seated on the defendant’s jury, but prior to the start of the trial, Juror 2 wrote: “After sitting through 2 days of jury questioning, I was surprised to find that I was not booted due to any strong beliefs I had about police, God, etc.” Prior to trial, Juror 2 also posted: (1) a photograph depicting a woman’s deformed face after she was hit by a drunk driver; and (2) a statement containing his views on a United States Supreme Court decision ruling against the death penalty for juveniles [Roper v. Simmons, 543 U.S. 551 (2005)]. During the defendant’s trial, Juror 2 made a blog entry that referenced an unrelated shooting incident in Atlanta. Id. at 214, 908 A.2d at 1262-63. 304. Id. at 220, 908 A.2d at 1267. 305. Annmarie Timmins, Juror behind mistrial pleads, pays $1,200, Concord [N.H.] Monitor, Oct. 10, 2009, http://www.concordmonitor.com/article/juror-behind-mistrial-pleads-pays-1200. 306. Annmarie Timmins, Juror becomes a defendant, Concord [N.H.] Monitor, Mar. 26, 2009, http:// www.concordmonitor.com/article/juror-becomes-defendant.

366

Volume 1, Issue 3


Jury Instructions for the Modern Age

New Jersey – Civil: Modern;  Criminal: Modern Civil Instructions New Jersey revised its preliminary civil jury charge in 2010 to admonish jurors to not research or communicate about the cases they are sitting on via the Internet and social media. While this case is pending, you are not to conduct any research or make any investigations on your own about the case. That is not your job. Your job is to decide the case based solely upon the evidence presented to all of you here in the court room. You should not review or seek out information about the issues in the case, the parties, the attorneys or the witnesses, either in traditional formats such as newspapers, books, advertisements, television or radio broadcasts or magazines or through the internet or other computer research. You also should not attempt to communicate with others about the case, either personally or through computers, cell phones, text messaging, instant messaging, blogs, Twitter, Facebook, Myspace, personal electronic and media devices or other forms of wireless communication. You should not go on the Internet or participate in or review any websites, Internet “chat rooms” or “blogs” nor should you seek out photographs or documents of any kind that in any way relate to this case. Why is this restriction imposed? You are here to decide this case based solely on the evidence — or lack of evidence — presented in this courtroom. Many of you regularly use the Internet to do research or to examine matters of interest to you. The information you are accessing is not evidence. One of the problems is that what you are examining may be wrong, incomplete, or inaccurate. That material may be outdated. Indeed, there often is no way to determine whether the information that we see on the Internet is correct. We must insist that, as a juror, you must not be influenced by any information outside of this courtroom. Otherwise, your decision may be based on material which only you, and none of your fellow jurors, know. This would unfairly and adversely impact the judicial process. We must make certain that all of you hear the same evidence. We must also make certain that each party has a fair opportunity to refute or explain evidence offered against it or that may be unfavorable to its case.307

An additional preliminary instruction specifically bars usage of cell phones and other electronic devices in courtrooms. If you have a cell phone, pager or other communication device, you must turn that device off while in the courtroom. When serving on a trial, you must turn off cell phones and other communication devices and cannot use them for any purpose when in the courtroom or the jury room. You will be given a telephone number at which you can be contacted during the trial. Unless instructed otherwise by me, the trial judge, you can use those devices only when outside the courtroom or jury room during recesses. When you are permitted to use such devices, you must remember, as I have instructed you, you may not use them in any way to conduct your own research or make any investigations about this case on your own, or to communicate with anyone about this case.308

Criminal Instructions In New Jersey’s criminal instructions, the preliminary instructions regarding voir dire have been modified to inform jurors that they will be asked “several questions that ask about your television and internet viewing habits, favorite news sources, and the like.”309

307. N.J. Model Civ. Jury Charges [NJ-JICIV] 1.11C (1998, rev. 2010), available via http://www.judiciary.state.nj.us/civil/civindx.htm. 308. NJ-JICIV 1.11I (2004, rev. 2007), available via http://www.judiciary.state.nj.us/civil/civindx.htm. 309. N.J. Model Crim. Jury Charges [NJ-JI CRIM], Non-2C Charges, Preliminary Instructions to the Jury (rev. 2010), available at http://www.judiciary.state.nj.us/criminal/charges/non2c017.pdf. Reynolds Courts & Media Law Journal

367


Jury Instructions for the Modern Age The criminal instructions for the start of trial include a lengthy discussion of Internet use by jurors: During the trial from time to time there shall be recesses. During any of those recesses I direct you not to discuss the case among yourselves, and when we recess overnight, you must not discuss the case or the testimony with any members of your family or any other persons or provide an account of your juror service to others, including through any electronic means, such as shared internet websites. Thus, for example, do not talk face to face or use any electronic device, such as the telephone, cell or smart phone, Blackberry, iPhone, PDA, computer, the Internet, e-mail, any text or instant message service, any Internet chat room, blog or website such as Facebook, MYSpace, YouTube, or Twitter, to communicate to anyone any information about this case. The reason of course is that you should not begin any deliberations until the entire case has been concluded, i.e., until you have heard all of the witnesses, the final arguments of counsel, and my instructions as to the law. It would be improper for any outside influence to intrude upon your thinking. If anyone should attempt to discuss the case with you, you should report the fact to me or my staff immediately. If you have a cell phone, pager, or any device that is capable of providing internet access and any device that may be used to record or transmit sound or images, whether video images or still images, you must turn that device off while in the courtroom. Similarly, you must turn off these communication devices and cannot use them for any purpose while in the jury deliberation room. You will be given a telephone number at which you can be contacted during the trial. Unless I otherwise instruct, you may only use these communication devices when you are outside the jury deliberation room during recesses. Please be mindful of these instructions at all times. *** Your deliberations should be based on the evidence in the case without any outside influence or opinions of relatives or friends. Additionally, I must instruct you not to read any newspaper articles, or search for, or research information relating to the case, including any participants in the trial, through any means, including electronic means. Do not do any research on the Internet, in libraries, in the newspapers, or any other manner – or conduct any investigation about this case. Do not visit or view any place discussed in this case and do not use Internet maps or Google Earth or any other program or device to search for or view any place discussed in the testimony. Also do not research any information about this case, the law, or – again – the people involved, including the parties, the witnesses, the lawyers, the judge, or the court personnel. Additionally, do not read any news stories or articles, in print, on the Internet, or in any blog about this case. I do not know if there will be any newspaper or other media coverage of this trial, but you are instructed to completely avoid reading, viewing or listening to any newspaper or media accounts or listening to anyone else discuss them. I am sure that you can understand why this instruction is so important. Newspaper and media accounts are not evidence, are often based upon second or third hand information, purely hearsay, not always accurate and not subject to examination by the attorneys. I have no way to monitor you in this area but must rely upon your good faith and the fact that you have been sworn to comply with the instructions of the court so that both sides may receive a fair trial. Because this instruction is so important, it is my duty to remind you of it at the end of each day’s proceedings.310

Cases In an aggravated manslaughter case, a juror reported to the judge that another juror had announced to her fellow jurors that she had researched the defendants, the victims, and the possible sentence for conviction on the Internet, but had not revealed the results of her research. The complaining juror added that the other juror had also read—and tried to hide— 310. NJ-JI CRIM Non-2C Charges, Instructions After Jury Is Sworn (rev. 2011), available at http:// www.judiciary.state.nj.us/criminal/charges/non2c014.pdf. See also Super. Ct. of N.J., Policy Regulating Jurors’ Use of Electronic Devices During Juror Service (memorandum, Mar. 17, 2010), available at http://www.judiciary.state.nj.us/jury/juror_wireless_use.pdf.

368

Volume 1, Issue 3


Jury Instructions for the Modern Age a newspaper in the jury room, and had announced at the start of deliberations that she had already made her decision, and held up a piece of paper with her decision. While the juror in question denied doing research on the Internet and said that she had seen only a headline about the case in the newspaper, four jurors confirmed that the juror said either that she had done research online or knew where such research could be done online. But only one of these jurors recalled the emotional juror mentioning anything she found in that research; the juror said that she had mentioned the possible sentence for the original murder charges in the case. The trial court replaced that juror in question with an alternate, based on the juror’s failure to admit her apparent violation of the court’s instructions. But he denied a mistrial, holding that the remaining jurors were not tainted. The appeals court disagreed with this assessment, concluding that “juror 14’s misconduct tainted the jury as a whole.”311 As this article went to press, a judge declared a mistrial after jurors deliberating in a criminal case accusing a pastor of sexual assault of a teenage girl in his congregation reported to the court that one juror had handed out the results of his Wikipedia research on the definition of a legal term. The jury had been repeatedly admonished not to do online research.312

New Mexico – Civil: Modern;  Criminal: Modern Civil Instructions New Mexico’s civil instruction on juror conduct was amended in 2011 to admonish jurors not to do Internet research.313 After the changes, it reads as follows: Your job is to find and determine the facts in this case, which you must do solely upon the evidence received in court. There are a number of important rules governing your conduct during the trial. *** Fifth, do not consider anything you may have read or heard about the case outside the courtroom. During the trial and your deliberations, avoid news accounts of the trial, whether on radio, television, in the newspaper, on the internet or elsewhere. If you happen to see or hear any news account of the trial, please report that fact to a member of the staff. Sixth, do not attempt any research, tests, experiments, visits to any locations involved in this case, or other investigation, including on the internet. It would be difficult or impossible to duplicate conditions shown by the evidence; therefore, your results would not be reliable. Such conduct also runs contrary to the rule that your verdict must be based solely upon the evidence presented to you. Nonetheless, in your deliberations, you need not ignore your backgrounds, including professional, vocational, and educational experience. Seventh, because you are only to consider the evidence presented in the trial in this case, you may not use your computer or phone or other electronic device at any time to do any research on any issue arising in the trial or jury deliberations, or to comment on what is happening in the trial or jury deliberations. Specifically, you may not text-message or go to or use any social networking sites, including, but not limited to, Facebook, MySpace, LinkedIn, Twitter, and/or YouTube. Don’t use internet dictionaries, Wikipedia, or any other source of information. You may rely only on the evidence presented in the trial in this case.314 311. New Jersey v. Scott, 2009 WL 2136273, 2009 N.J. Super. Unpub. LEXIS 1901 (N.J. Super., App. Div. July 20, 2009), certification certif. denied, 200 N.J. 504, 983 A.2d 1111 (N.J. Nov. 10, 2009) (table). 312. Kibret Markos, Mistrial declared in Mahwah pastor’s sex-assault case, The [Bergen County, N.J.] Record, July 7, 2011, http://www.northjersey.com/news/crime_courts/Mistrial_declared_in_pastors_sex-assault_case.html. 313. See N.M. Uniform Jury Instr. – Civ. [NMUJI – Civ.] 13-110 (2011) (as modified by 2011 N.M. Ct. Order 0011 [eff. March 25, 2011]), available at http://www.nmcompcomm.us/nmrules/ NMRules/13-110_1-19-2011.pdf. 314. NMUJI – Civ. 13-110 (2011) (as modified by 2011 N.M. Ct. Order 0011 [eff. March 25, 2011]), available Reynolds Courts & Media Law Journal

369


Jury Instructions for the Modern Age The civil recess instruction tells jurors to report any exposure to “news accounts of this trial,” but does not mention any specific types of media, including no mention of the Internet.315

Criminal Instructions New Mexico’s criminal jury instruction on juror conduct, which already included the Internet in the admonition to avoid coverage of the case, was amended in 2011 to give more specifics about prohibited activities online. You must decide the case solely upon the evidence received in court. You must not consider anything you may have read or heard about the case outside the courtroom. During the trial and your deliberations, you must avoid news accounts of the trial, whether they be on radio, television, the internet or in a newspaper or other written publication. … You must decide the case solely upon the evidence received in court. You must not consider anything you may have read or heard about the case outside the courtroom. During the trial and your deliberations, you must avoid news accounts of the trial, whether they be on radio, television, the internet or in a newspaper or other written publication. You must not visit the scene of the incident on your own. You cannot make experiments with reference to the case. You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in this case, and the individuals or corporations involved in the case. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Do not try to find out information from any source outside the confines of this courtroom. Until you retire to deliberate, you may not discuss this case with anyone, even your fellow jurors. After you retire to deliberate, you may begin discussing the case with your fellow jurors, but you cannot discuss the case with anyone else until you have returned a verdict and the case is at an end. I know that many of you use cell phones, the internet, and other tools of technology. You also must not talk to anyone about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone or any other device that can access the internet through email, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, such as        (insert current examples of social networking sites, such as Facebook, My Space, LinkedIn, or YouTube). During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, computer, or any other device that can access the internet; the internet, any internet service, or any text or instant messaging service; or any internet chat room, or by way of any other social networking websites, such as        (insert current examples of social networking sites, such as Facebook, My Space, LinkedIn, YouTube, or Twitter), to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.316

The recess instruction for criminal trials was similarly amended,317 but a separate juror conduct instruction for use in juvenile criminal proceedings has not been updated to include language regarding the Internet.318 at http://www.nmcompcomm.us/nmrules/NMRules/13-110_1-19-2011.pdf. 315. NMUJI – Civ. 13-201 (2005). 316. N.M. Uniform Jury Instr. – Crim. [NMUJI – Crim.] 14-101 (2011) (as modified by 2011 N.M. Ct. Order 0013 [eff. March 25, 2011]), available at http://www.nmcompcomm.us/nmrules/ NMRules/14-101_1-24-2011.pdf. 317. NMUJI – Crim.14-114 (2010, modified 2011) (as modified by 2011 N.M. Ct. Order 0013 [eff. March 25, 2011]), available at http://www.nmcompcomm.us/nmrules/NMRules/14-114_1-24-2011.pdf. 318. NMUJI – Crim. 14-9002 (2001).

370

Volume 1, Issue 3


Jury Instructions for the Modern Age

New York – Civil: Modern;  Criminal: Modern Civil Instructions New York’s jury instructions for civil trials admonish jurors to not discuss or research the case online, and specifically mention several Internet sites and services. Since this case involves something that happened at a particular location, you may be tempted to visit the location yourself. Please do not do so. Even if you happen to live near the location, please avoid going to it or past it until the case is over. In addition, please do not attempt to view the scene by using computer programs such as Google Earth. Viewing the scene either in person or through a computer program would be unfair to the parties, since the location as it looked at the time of the accident and as it looks now may be very different. This case involves a location as it existed at the time of the accident, not as it exists today. Thus, you should rely on the evidence that is presented here in court to determine the circumstances and conditions under which the accident occurred. Also, in making a visit without the benefit of explanation, you might get a mistaken impression on matters not properly before you, leading to unfairness to the parties who need you to decide this case based solely upon the evidence that is relevant to this matter.319

One of the instructions is almost apologetic for these restrictions, and explains the rationale for them. … Please do not discuss this case either among yourselves or with anyone else during the course of the trial. Do not do any independent research on any topic you might hear about in the testimony or see in the exhibits, whether by consulting others, reading books or magazines or conducting an internet search of any kind. All electronic devices including any cell phones, Blackberries, iphones, laptops or any other personal electronic devices must be turned off while you are in the courtroom and while you are deliberating after I have given you the law applicable to this case. [In the event that the court requires the jurors to relinquish their devices, the charge should be modified to reflect the court’s practice] It is important to remember that you may not use any internet services, such as Google, Facebook, Twitter or any others to individually or collectively research topics concerning the trial, which includes the law, information about any of the issues in contention, the parties, the lawyers or the court. After you have rendered your verdict and have been discharged, you will be free to do any research you choose, or to share your experiences, either directly, or through your favorite electronic means. For now, be careful to remember these rules whenever you use a computer or other personal electronic device during the time you are serving as a juror but you are not in the courtroom. While this instruction may seem unduly restrictive, it is vital that you carefully follow these directions. The reason is simple. The law requires that you consider only the testimony and evidence you hear and see in this courtroom. Not only does our law mandate it, but the parties depend on you to fairly and impartially consider only the admitted evidence. To do otherwise, by allowing outside information to affect your judgment, is unfair and prejudicial to the parties and could lead to this case’s having to be retried. Accordingly, I expect that you will seriously and faithfully abide by this instruction.320

Criminal Instructions

New York’s official criminal jury instructions321 include a set of “Jury Admonitions In Preliminary Instructions” that incorporate specific – and adamant – prohibitions against juror use of the Internet during trial, and an admirable explanation of why these restrictions are necessary. 319. Comm. on Pattern Jury Instr., Ass’n of Justices of the Supreme Ct. of the State of N.Y., N.Y. Pattern Jury Instr.—Civil [NY PJI-Civ.] 1:10 (2011). 320. NY PJI-Civ. 1:11 (2011). 321. New York law specifically requires that the jury be instructed prior to trial and recesses about “its baReynolds Courts & Media Law Journal

371


Jury Instructions for the Modern Age Our law requires jurors to follow certain instructions in order to help assure a just and fair trial. I will now give you those instructions. *** 4. Do not visit or view the premises or place where the charged crime was allegedly committed, or any other premises or place involved in the case. And you must not use internet maps or Google Earth or any other program or device to search for and view any location discussed in the testimony. 5. Do not read, view or listen to any accounts or discussions of the case reported by newspapers, television, radio, the internet, or any other news media. 6. Do not attempt to research any fact, issue, or law related to this case, whether by discussion with others, by research in a library or on the internet, or by any other means or source. In this age of instant electronic communication and research, I want to emphasize that in addition to not conversing face to face with anyone about the case, you must not communicate with anyone about the case by any other means, including by telephone, text messages, email, internet chat or chat rooms, blogs, or social websites, such as Facebook, MySpace or Twitter. You must not provide any information about the case to anyone by any means whatsoever, and that includes the posting of information about the case, or what you are doing in the case, on any device, or internet site, including blogs, chat rooms, social websites or any other means. You must also not Google or otherwise search for any information about the case, or the law which applies to the case, or the people involved in the case, including the defendant, the witnesses, the lawyers, or the judge. Now, ladies and gentlemen, I want you to understand why these rules are so important: Our law does not permit jurors to converse with anyone else about the case, or to permit anyone to talk to them about the case, because only jurors are authorized to render a verdict. Only you have been found to be fair and only you have promised to be fair – no one else has been so qualified. Our law also does not permit jurors to converse among themselves about the case until the Court tells them to begin deliberations because premature discussions can lead to a premature final decision. Our law also does not permit you to visit a place discussed in the testimony. First, you cannot always be sure that the place is in the same condition as it was on the day in question. Second, even if it were in the same condition, once you go to a place discussed in the testimony to evaluate the evidence in light of what you see, you become a witness, not a juror. As a witness, you may now have an erroneous view of the scene that may not be subject to correction by either party. That is not fair. Finally, our law requires that you not read or listen to any news accounts of the case, and that you not attempt to research any fact, issue, or law related to the case. Your decision must be based solely on the testimony and other evidence presented in this courtroom. It would not be fair to the parties for you to base your decision on some reporter’s view or opinion, or upon information you acquire outside the courtroom. These rules are designed to help guarantee a fair trial, and, our law accordingly sets forth serious consequences if the rules are not followed. I trust you understand and appreciate the importance of following these rules and, in accord with your oath and promise, I know you will do so.322 sic functions, duties and conduct,” and that “[s]uch instructions must include, among other matters, admonitions that the jurors may not converse among themselves or with anyone else upon any subject connected with the trial; that they may not read or listen to any accounts or discussions of the case reported by newspapers or other news media;[and] that they may not visit or view the premises or place where the offense or offenses charged were allegedly committed or any other premises or place involved in the case…” N.Y. Crim. Pro. Law [NY CPL] § 270.40 (2011); see also NY CPL § 310.10 (2011) (extending requirement to recesses). 322. N.Y. Crim. Instr. 2d [NY CJI 2d], Jury Admonitions (rev. May 5, 2009), http://www.nycourts.gov/

372

Volume 1, Issue 3


Jury Instructions for the Modern Age The recess instruction repeats much of this language.323

Cases In 2007, New York’s Appellate Division held that while a juror’s obtaining weather information from the Internet was misconduct, it was immaterial and did not create a substantial risk of prejudice requiring the court to set aside a drug sale conviction.324 In 2009, a trial court denied a defense motion to set aside a guilty verdict in a rape case based on a juror who conducted Internet search research on the defense attorney, and who also discussed the case with others during trial.325 In a 2010 case, a juror sent a “friend” request on Facebook to a fireman who testified in the case in which she was sitting. While the trial judge called the juror’s action “unquestionably a serious breach of her obligations as a juror and a clear violation of the court’s instructions,” she rejected a defense motion to set aside convictions for criminally negligent homicide and reckless endangerment on that basis.326 In June 2011, a juror in a rape trial pleaded guilty to criminal contempt and was fined $1,000 after he sent two e-mails to a friend who was a prosecutor in another county, causing the judge to declare a mistrial. The first e-mail, with the subject “Juror #5 reporting to you live,” described the physical conditions of the jury deliberation room. The second said that the jury was deadlocked five to seven in favor of acquittal.327

North Carolina – Civil: Modern;  Criminal: Modern Civil Instructions The recess admonition in North Carolina’s civil instructions includes the Internet and social media in the admonitions against discussing and accessing information about a case. The instruction also gives a rationale for the restrictions. Members of the jury, we will now take a (state length) recess. During this recess [and any other recess that we have while this trial is in progress], I instruct you that it is your duty to carefully observe the cautions I am now going to give you. During the course of the trial you should not talk with each other about the case. You may only talk with each other about the case at the end of the trial when you go to the jury room to consider your verdict. It may be difficult for you to understand why you may not discuss this case among yourselves until it is finally submitted to you. It would be unfair to discuss the case among yourselves before you receive everything necessary to reach an informed decision. Until you are instructed to begin deliberations on your verdict, you should not form or express any opinion about the case. You should not talk or have contact of any kind with any of the parties, attorneys or witnesses. You should not talk to anyone else or allow anyone else to talk with you or in your presence about the case. If anyone cji/1-General/CJI2d.Jury_Admonitions.pdf. Note that the Internet version of NY CJI 2d is the official version; see NY CJI 2d, Preface, http://www.nycourts.gov/cji/0-TitlePage/1-Preface.html. 323. NY CJI 2d, Jury Separation During Deliberations (rev. Dec. 17, 2009), http://www.nycourts.gov/cji/1General/CJI2d.Jury_Separation_Rev.pdf; see also NY CPL § 310.10 (2011) (extending requirement to recesses). 324. People v. Lara, 44 A.D.3d 488, 843 N.Y.S.2d 311 (N.Y. Sup. Ct., App. Div. 2007). 325. People v. Jamison, 24 Misc.3d 1238(A), 899 N.Y.S.2d 62 (table), 2009 WL 2568740, 2009 N.Y. Slip Op. 51800(U) (text) (N.Y. Sup. Ct. 2009) (unreported). Among the outsiders with whom the juror discussed the case was an attorney, who reported the incident to the court. Id. at *2. 326. People v. Rios, 26 Misc.3d 1225(A), 907 N.Y.S.2d 440 (table), 2010 WL 625221 (N.Y. Supp.), 2010 N.Y. Slip Op. 50256(U) (text) (unreported) (N.Y. Sup. Ct. 2010) (setting aside convictions on other grounds). 327. Thomas Zambito, Juror gets $1000 fine for sending email during rape case, causing mistrial, N.Y. Daily News, June 15, 2011, http://www.nydailynews.com/ny_local/2011/06/15/2011-06-15_juror_ gets_1000_fine_for_sending_email_during_rape_case_causing_mistrial.html. Reynolds Courts & Media Law Journal

373


Jury Instructions for the Modern Age attempts to communicate with you about the case you must notify the bailiff immediately. If that person persists, simply walk away and notify the bailiff. In this age of instant electronic communication and research, I want to emphasize that in addition to not speaking face-to-face with anyone about the case, you should not engage in any form of electronic communication about the trial, including but not limited to: Twitter, blogging, Facebook, text messaging, instant messaging, computer gaming, and any other such means of electronic communication. Any such discussion could lead to a mistrial and would severely compromise the partiesâ&#x20AC;&#x2122; right to a fair trial. You should explain this rule prohibiting discussion of the case to your family and friends. (When the trial is over) (When your jury duty is completed), you will be released from this instruction. At that time, you may, but are not required to, discuss the case and your experiences as a juror. You should avoid watching, reading or listening to any accounts of the trial that might come from any news media. That is, you should not read, listen, or watch anything about it that might be in the newspaper, or on the Internet, radio, or television. Media reports may be incomplete or inaccurate. You may only consider and decide this case upon the evidence received at the trial. If you acquire any information from an outside source, you must not report it to other jurors and you must disregard it in your deliberations. In addition, you should report the outside source of information to the bailiff or to the court at the first opportunity. While the trial is going on, you must not go to (state place where case arose) or make any independent inquiry or investigation about this matter, including, but not limited to, any Internet or other kind of research. You are prohibited from performing your own experiments as well. This case involves the scene and events as it existed at the time, not as it exists today. Viewing the scene, pictures or other materials without the benefit of explanation in court is unfair to the parties who need you to decide this case solely upon the evidence that is admitted in this case. If you base your verdict on anything other than what you learn in this courtroom, that could be grounds for a mistrial-which means that all of the work that you and your fellow jurors put into this trial will be wasted, and the lawyers, the parties, and a judge will have to do this all over again. If you communicate with others in violation of my orders, you could be held in contempt of court. Thatâ&#x20AC;&#x2122;s why this is so important. After you have rendered your verdict, or have been otherwise discharged by me, you will be free to do any research you choose, or to share your experiences either directly or through your favorite electronic means. You must keep all cell phones turned off when you are in the courtroom or the jury room. While the trial is in progress, you may only talk on a cell phone during a recess outside of the jury room. If, during the trial, issues arise that would affect your ability to pay attention and sit as a fair and impartial juror, you may explain the matter to the bailiff who will inform me. At any time if you cannot hear a witness, an attorney, or me, please make that fact known immediately by raising your hand.328

The instruction for subsequent recesses reiterates these admonitions: Members of the jury, we will now take a (state length) recess. I remind you to observe during this recess the rules that I gave you earlier. Do not talk or communicate with each other or with anyone else about any matter connected with this case or allow anyone to talk about it in your presence. Do not talk to or have any contact with any of the parties, attorneys or witnesses. Do not conduct any investigation, or receive or attempt to receive any reports or information related to this case from any source, including the media, the Internet, social networking or any other means. Do not form or express any opinion about this case. [Do not go to any location mentioned in the evidence. If your routine course of travel to or from the courthouse takes you past any such location, remember that you must not conduct any independent investigation about any matter connected with this trial.]329

But there is no general civil instruction regarding use of the Internet and social media during trial. 328. N.C. Pattern Instr., Civ. 100.20 (2010). 329. N.C. Pattern Instr., Civ. 100.21 (2010).

374

Volume 1, Issue 3


Jury Instructions for the Modern Age

Criminal Instructions North Carolina’s criminal instruction includes an admonition against Internet use. The admonitions to be given to a jury in a criminal case are specified in N.C. Gen. Stat. § 15A-1236, which requires that judges tell jurors to not discuss the case or express any opinion about the case “except in the jury room after their deliberations have begun;” to not participate in or listen to a discussion about the case with others, including parties, witnesses, or counsel; and “[t]o avoid reading, watching, or listening to accounts of the trial.”330 These admonitions are expressed in the instruction to a jury once it has been impaneled. This instruction has been updated to mention a number of specific social media services. Finally, before you retire to consider your verdict, you must obey the following rules: First, you must not talk about the case amongst yourselves. The only place this case may be discussed is in the jury room and then only after you begin your deliberations. Second, you must not talk about this case with anyone else (including members of your families) or allow anyone else to talk with you or say anything in your presence about this case. If anyone communicates or attempts to communicate with you or in your presence about this case, you must notify the bailiff of that fact immediately. In this age of instant electronic communication and research, I want to emphasize that in addition to not speaking face-to-face with anyone about the case, you should not engage in any form of electronic communication about the trial, including but not limited to: Twitter, blogging, Facebook, text messaging, instant messaging, and any other such means of electronic communication. Third, you must keep all cell phones turned off when you are in the courtroom or the jury room. Fourth, while you sit as a juror in this case, you are not to form an opinion about the guilt or innocence of the defendant, nor are you to express to anyone any opinion about the case until I tell you to begin your deliberations. Fifth, you must not talk or communicate in any way with any of the parties, attorneys, or witnesses involved in the case. This rule applies inside as well as outside the courtroom, and it prohibits any type of conversation, whether about the evidence in this case or about the weather, or just to pass the time of day. Sixth, you must not read or listen to any news media coverage of this case or trial, including television, newspaper, radio, or Internet accounts. Newspaper, radio, television, and Internet accounts may be inaccurate, or they may contain references to matters which are not proper for your consideration. Your verdict must be based solely on the evidence presented during this trial and no other source. Seventh, you must not visit the scene or place that is the subject matter of this trial or make any independent inquiry or investigation about this matter. You may not conduct any research, including Internet research, to look for any information regarding the case. Each of you must obey each of these rules to the letter. Unless you do so, there is no way the parties can be assured of absolute fairness and impartiality. It is your duty, while the trial is in progress, or while it is in recess, or while you are in the jury room, to see that you remain a fair and impartial trier of the facts. If you violate these rules, you violate an order of the court and this is contempt of court and could subject you to punishment as provided by law.331

The admonitions for first and subsequent recesses use the same language as the civil instructions.332

330. N.C. Gen. Stat. § 15A-1236 (2010). 331. N.C. Patt. Instr., Crim. [N.C.P.I. Crim.] 100.25 (2010). 332. N.C.P.I. Crim. 100.31 (2010) (first recess); N.C.P.I. Crim. 100.33 (2010) (subsequent recesses). Reynolds Courts & Media Law Journal

375


Jury Instructions for the Modern Age The criminal instructions also include an instruction for grand juries telling them that their oath “precludes now and forevermore any comment or publicity on what goes on in the grand jury room.”333 But this instruction does not specifically address use of any specific media of communication, including the Internet or social media.334

North Dakota – Civil: Archaic;  Criminal: Archaic Civil Instructions North Dakota’s civil pattern jury instructions do not contain any specific provisions relating to jurors’ responsibility to avoid discussion and media coverage of cases.335 The overview for the instructions adds, “Following the instructions on damages, the Judge instructs the Jury on the handling of the evidence they have received and finally with regard to their duties in retirement and in the forms of verdict to be considered.”336 Courts are also instructed to give instructions on “the conduct of the Jurors in retirement.”337

Criminal Instructions North Dakota’s criminal instructions also fail to admonish jurors regarding discussing or reading media coverage of cases.338 The introductory commentary states, “the Jurors should be instructed [on] handling the evidence – such as Weight of Evidence and Credibility of Witnesses, Impeachment of Witnesses, and Presumptions.”339 The state’s court rules also require that “[i]mmediately after the jury is sworn the court may give instructions concerning … jury duties and conduct … [and] … elementary legal principles governing the proceedings.”340

Ohio – Civil: Modern;  Criminal: Modern Civil Instructions Included in Ohio’s preliminary jury instructions for civil trials are a series of admonitions to the jury about their activities and interaction with the media during trial, including use of the Internet and social networks. 1. FAIR AND ATTENTIVE. … Do not discuss this case among yourselves or with anyone else. This includes family, friends, and the media. You must not post anything about this case on the internet or any electronic device including cell phones. This would include blogs and social networking such as MySpace, Facebook, Twitter, and others. Any such discussion, if discovered, could lead to a mistrial and would severely compromise the parties’ right to a fair trial. …

333. N.C.P.I. Crim. 100.10(7) (2010). 334. Id. 335. See N.D. Pattern Jury Instr. – Civ. [NDJI - Civil] (2008), available via http://www.sband.org/Pattern_Jury_Instructions/index.asp. 336. NDJI – Civil (2008), Overview, ¶ 10, available at http://www.sband.org/Pattern_Jury_Instructions/ overview.asp. 337. Id. 338. N.D. Pattern Jury Instr. – Criminal [NDJI – Criminal] (2008), available via http://www.sband. org/Pattern_Jury_Instructions/index.asp. 339. NDJI – Crim. (2008), Overview, ¶ 6, available via http://www.sband.org/Pattern_Jury_Instructions/ overview.asp. 340. N.D. R. Crim. Pro. 30(b)(3)(A),(C) (2006, 2011 supp.), available at http://www.ndcourts.gov/court/ rules/criminal/rule30.htm; see also N.D. R. Civ. Pro. 51(b)(3)(A),(C) (2005, 2011 supp.), available at http://www.ndcourts.gov/court/rules/CIVIL/rule51.htm.

376

Volume 1, Issue 3


Jury Instructions for the Modern Age 2. AMONG YOURSELVES. Perhaps more difficult for you to understand is that you may not discuss this case among yourselves until it is finally submitted to you. … It would be unfair to discuss the case among yourselves before you receive everything necessary for your decision. 3. DO NOT DISCUSS OUTSIDE COURT. You should explain this rule prohibiting discussion of the case to your family and friends. When (the trial is over) (your jury duty is completed), you will be released from this instruction. At that time, you may, but are not required to, discuss the case and your experiences as a juror. 4. REPORT VIOLATION. You are instructed not to talk with the attorneys, parties, witnesses, or anyone else during the trial. Likewise, they must not talk with you. You must also not talk with anyone else about this case during the trial. If anyone should attempt to discuss the case with you, report the incident to me or to the bailiff immediately. 5. WARNING. Do not investigate or attempt to obtain additional information about this case from any source outside the courtroom. (This includes visiting the scene of the event or viewing pictures obtained on your own, including those obtained on the internet, such as Google Earth. This case involves the scene as it existed at the time, not as it exists today. Viewing the scene, pictures, or other materials without the benefit of explanation in court is unfair to the parties who need you to decide this case solely upon the evidence that is admitted in this case.) You are prohibited from performing your own experiments and conducting your own research, including internet research. Such information may be incomplete, inaccurate, or irrelevant to the issues in this case. It is vital that you carefully follow these instructions. The reason is simple. The law requires that you consider only the testimony and evidence you hear and see in this courtroom. 6. NEWSPAPER, RADIO, AND TV. You may consider and decide this case only upon the evidence received at the trial. If you acquire any information from an outside source, you must report it to the bailiff immediately. You are instructed not to read, view, or listen to any report in the newspaper, radio, or television on the subject of this trial; do not permit anyone to read or comment upon them to you or in your presence. Media reports may be incomplete or inaccurate. You may consider and decide this case only upon the evidence received at the trial. If you acquire any information from an outside source, you must not report it to other jurors and you must disregard it in your deliberations. In addition, you should report the outside source of information to the bailiff or to the court at the first opportunity. *** 8. VIOLATION. Any violation of these orders may require a new trial and may subject those involved to sanctions, including contempt of court.341

Criminal Instructions These same admonitions constitute the preliminary instruction for criminal trials, with the “fair and attentive” admonition labeled a “required admonition,”342 which must be given under a provision of Ohio’s criminal procedure code.343 The criminal recess instruction repeats the required and other admonitions in shorter form.344 In addition, the instructions for the sentencing phase in aggravated murder cases include a reminder to jurors “not to watch, read, listen to, or discuss news media accounts of this case.”345 341. Ohio Judicial Conf., 1 Ohio Jury Instr., Civ. [OJI CV] 301.07 (2011). 342. Ohio Judicial Conf., 2 Ohio Jury Instr., Crim. [OJI CR] 401.09 (2011). 343. See Ohio Rev. Code § 2945.34 (2011). 344. OJI CR 401.11 (2011). 345. OJI CR 503.011 (2011). Reynolds Courts & Media Law Journal

377


Jury Instructions for the Modern Age In May 2010, the Ohio Bar Association, which has its own set of jury instructions, revised its admonition to cover not only the Internet and social media, but also to caution jurors against using notions of the law gleaned from popular television programs: 2. WARNING ON OUTSIDE INFORMATION. In addition, you absolutely must not try to get information from any other source. The ban on sources outside the courtroom applies to information from all sources such as family, friends, the Internet, reference books, newspapers, magazines, television, radio, a computer, a Blackberry, iPhone, smart phone, and any other electronic device. This ban on outside information also includes any personal investigation, including visiting the site, looking into news accounts, talking to possible witnesses, re-enacting the allegations in the (Complaint)(Indictment), or any other act that would otherwise affect the fairness and impartiality that you must have as a juror. 3. WARNING ON OUTSIDE INFLUENCE. The effort to exclude misleading outside influences information also puts a limit on getting legal information from television entertainment. This would apply to popular TV shows such as Law and Order, Boston Legal, Judge Judy, older shows like L.A. Law, Perry Mason, or Matlock, and any other fictional show dealing with the legal system. In addition, this would apply to shows such as CSI and NCIS, which present the use of scientific procedures to resolve criminal investigations. These and other similar shows may leave you with an improper preconceived idea about the legal system. As far as this case is concerned, you are not prohibited from watching such shows. However, there are many reasons why you cannot rely on TV legal programs, including the fact that these shows: (1) are not subject to the rules of evidence and legal safeguards that apply in this courtroom, and (2) are works of fiction that present unrealistic situations for dramatic effect. While entertaining, TV legal dramas condense, distort, or even ignore many procedures that take place in real cases and real courtrooms. No matter how convincing they try to be, these shows simply cannot depict the reality of an actual trial or investigation. You must put aside anything you think you know about the legal system that you saw on TV. 4. WARNING ON OUTSIDE CONTACT. Finally, you must not have contact with anyone about this case, other than the judge and court employees. This includes sending or receiving e-mail, Twitter, text messages or similar updates, using blogs and chat rooms, and the use of Facebook, MySpace, LinkedIn, and other social media sites of any kind regarding this case or any aspect of your jury service during the trial. If anyone tries to contact you about the case, directly or indirectly, do not allow that person to have contact with you. If any person persists in contacting you or speaking with you, that could be jury tampering, which is a very serious crime. If anyone contacts you in this manner, report this to my bailiff or me as quickly as possible.346

Other After a Feb. 11, 2010 workshop on new media technologies and the courts, Ohio Supreme Court Justice Judith Ann Lanzinger said that the court was probably going to have to reexamine the state’s rules on broadcasting of court proceedings.347  The current rule, which was last revised in 1997, limits use of “visible audio recording equipment” to “news media reporters with the prior permission of the judge.”348 In the meantime, some courts in Ohio have acted on their own. In February 2011, the Ohio Common Pleas Court in Erie County banned most cell phones from its courthouse in Sandusky, with exceptions for lawyers, judges, court personnel, law enforcement of 346. Ohio St. Bar Ass’n. Jury Instrs., Jury Admonition, available at http://tinyurl.com/3aj4xqq. 347. Laura A. Bischoff, Judges combat Twitter, Facebook use by jurors during trials, Dayton [Ohio] Daily News, Feb. 12, 2010, http://www.daytondailynews.com/news/ohio-news/judges-combat-twitter-facebook-use-by-jurors-during-trials-544464.html; Social media may change Ohio courts broadcast rule, Associated Press, Feb. 11, 2010, available at http://www.daytondailynews.com/news/ohio-news/ social-media-may-change-ohio-courts-broadcast-rule-543739.html. 348. Ohio Sup. R. 12 (2011), available at http://www.sconet.state.oh.us/LegalResources/Rules/superintendence/Superintendence.pdf.

378

Volume 1, Issue 3


Jury Instructions for the Modern Age ficers, and journalists.349 The Lucas County courthouse imposed a similar ban in 2008, with similar exceptions.350

Cases A man convicted of drowning his wife in a bathtub sought a new trial in March 2011, arguing, among other errors, that during the trial the sister of a juror had “liked” a Facebook page supporting his conviction, which caused it to appear in the “newsfeed” of the juror’s Facebook home page.351 He also argued that the juror’s posting on Facebook of a video featuring a bathtub on her Facebook page was also evidence of misconduct.352 The juror denied this, saying in an affidavit that “I followed the Court’s instructions and did not communicate any information about the case or do any research. I avoided reading any information about the case from any source, including social media, electronic communications, the Internet or any other media. … To my knowledge and understanding, I complied with Judge Bronson’s instructions and did not form or express any opinions about the case, until the jury began deliberations.”353 The motion was denied.354

Oklahoma – Civil: Modern;  Criminal: Modern Civil Instructions Oklahoma’s cautionary instruction for civil juries was revised in 2008 to mention the Internet in the admonition against reading or viewing coverage of the case. The instruction also gives a brief rationale for the restriction. It is your duty to determine the facts of this case from the evidence produced in open court. You should consider only the evidence introduced while the court is in session. … Do not read newspaper reports or obtain information from the internet about this trial or the issues, parties or witnesses involved in this case, and do not watch or listen to television or radio reports about it. Do not attempt to visit the scene or investigate this case on your own. The reasons for these rules are that it is essential that you should keep your minds free and open at all 349. Richard Payerchin, Erie County Courthouse bans all cell phones, laptops, iPods, Morning Journal, Feb. 3, 2010, http://www.morningjournal.com/articles/2010/02/03/news/erie_huron/mj2249546.txt. I have criticized other courts’ cell phone policies with similar “double standards.” See Eric P. Robinson, New York Attorneys Want Devices in Federal Court, But Only for Themselves, Citizen Media L. Proj. Blog, July 27, 2009, http://www.citmedialaw.org/blog/2009/new-york-attorneys-want-devices-federal-court-only-themselves. 350. Erica Blake, 1st day of ban on cell phones clicks at Lucas County courthouse, Toledo [Oh.] Blade, July 2, 2008, http://www.toledoblade.com/local/2008/07/02/1st-day-of-ban-on-cell-phones-clicksat-Lucas-County-courthouse.html. 351. Jessica Noll, Widmer defense: Juror exposed to anti-Widmer Facebook page, WCPO.com, Mar. 23, 2011, http://www.wcpo.com/dpp/news/widmer-defense%3A-juror-exposed-to-anti-widmer-facebookpage-. If granted, the new trial would have been the fourth in the case. The conviction in the first trial was vacated after it was discovered that several jurors had conducted experiments to test some of the factors in the case. See Denise G. Callahan, Defense asks judge to acquit Ryan Widmer, Dayton [Oh.] Daily News, Mar. 5, 2011, http://www.daytondailynews.com/news/dayton-news/defense-asks-judgeto-acquit-ryan-widmer-1097620.html. The second trial ended in a hung jury. Id. 352. Id. 353. Id. 354. Docket, Ohio v. Widmer, Case No. 08CR25254 (Ohio C.P. Ct., Warren County decision Mar. 25, 2011) (denying motion for new trial), docket available at http://www.co.warren.oh.us/clerkofcourt/search/ detail.asp?A5CRCD=08CR25254. The defendant has filed an appeal of his conviction. Reynolds Courts & Media Law Journal

379


Jury Instructions for the Modern Age times throughout this trial and that you should not be influenced by anything except the evidence you hear and see in the courtroom.355

But the admonition against discussing the case does not mention social media.356

Criminal Instructions

After amendments in January 2011,357 the instructions for criminal trials mention electronic communication in the admonitions against discussing the case. They are a bit more specific in the admonitions against independent research. The first of these is in the instructions prior to voir dire. From this point until the conclusion of this trial, do not discuss this case with any other person, including family and friends. You should not read or listen to any media discussing this case nor research this case through the internet or any other tools of technology. Nor should you use any of these means to communicate to others about the case. It is important that this case be decided solely on the evidence you receive in this courtroom.358 There is a lengthier discussion of these restrictions in the instructions given to the seated jurors at the start of trial. Throughout the trial you should remain alert and attentive. Do not form or express an opinion on the case until it is submitted to you for your decision. Do not discuss this case among yourselves until that time. Do not tell anybody about the case, discuss this case with anyone else, or permit anyone else to discuss this case in your presence. This includes either in person or by electronic, telephonic or any other means. Do not talk to the attorneys, the defendant(s), or the witness(es). If anyone should attempt to discuss this case with you, report the incident to me or to the bailiff immediately. This case must be decided solely upon the evidence presented to you in this courtroom, free from any outside influence. This means that during the trial you must not conduct any independent research about the case, the matters in the case, the individuals, witnesses, attorneys, or organizations in the case. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about the case or to help you decide the case. Do not read newspaper reports or obtain information from any other source about this trial or the issues, parties or witnesses involved in this case, and do not watch or listen to television or radio reports about it. Do not attempt to visit the scene or investigate this case on your own.359 355. Ok. Uniform Jury Instr. â&#x20AC;&#x201C; Civ. 1.4 (rev. 2008), available at http://www.oscn.net/applications/oscn/ DeliverDocument.asp?CiteID=454076. 356. The admonition reads: During all recesses and adjournments, while this case is in progress, you must not discuss this case, or anything about this case, with anyone, and you must not allow anyone to discuss it with you. This rule applies not only to court employees, the attorneys involved in this case, and others you may meet in the courthouse, but also to your husband and wife, other members of your family, your friends and anyone else you may meet. If during the trial anyone talks to you or tries to talk to you about this case, you must immediately report it to me, or the [(clerk of the court)/bailiff ], who will report to me. Do not, before this case is finally submitted to you for a decision, talk to your fellow jurors about this case, or anything about this case, or form or express any opinion about it. Id. 357. See In re Adoption of the 2010 Revisions to the Oklahoma Uniform Jury Instructions-Criminal (Second Edition), 2011 OK CR 2 (Ok. Crim. App. Jan. 25, 2011), available at http://www.okcca.net/online/ files/opinions/2011%20OK%20CR%202.pdf. The instructions mentioned electronic media prior to the 2011 amendments; the changes were mainly to form and organization. 358. Ok. Uniform Jury Instr. â&#x20AC;&#x201C; Crim. [OUJI-CR 2d] 1.4 (2 ed. 2008, supp. 2010), available at http:// www.oscn.net/applications/OCISWeb/DeliverDocument.asp?CiteID=80989. 359. OUJI-CR 2d 1.8 (2 ed. 2008, supp. 2010), available at http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=80994.

380

Volume 1, Issue 3


Jury Instructions for the Modern Age A separate introductory instruction for delinquency hearings does not mention the Internet as a means of communication or research: Throughout the trial you should remain alert and attentive. Do not form or express an opinion on the case until it is submitted to you for your decision. Do not discuss this case among yourselves until that time. Do not discuss this case with anyone else or permit anyone else to discuss this case in your presence. Do not talk to the attorneys, [Name of Child], or the witness(es). If anyone should attempt to discuss this case with you, report the incident to me or to the bailiff immediately. Do not read, or view or listen to any news report of this trial. This case must be decided solely upon the evidence presented to you in this court, free from any outside influence.360

Other

Oklahoma also has a separate set of jury instructions for juvenile trials,361 which have a less extensive discussion of Internet and social media use by jurors than the civil or criminal instructions. Do not read newspaper reports or obtain information from the internet about this trial or the issues, parties or witnesses involved in this case, and do not watch or listen to television or radio reports about it. Do not attempt to investigate this case on your own. The reasons for these rules are that it is essential that you should keep your minds free and open at all times throughout this trial and that you should not be influenced by anything except the evidence you hear and see in the courtroom.362

In addition, immediately prior to deliberations, the jurors in juvenile cases are reminded, “You should not consider any matter of fact or of law except what has been given to you while this court is or has been in session.”363

Cases In 2006, the Oklahoma Supreme Court affirmed the trial court’s grant of a new trial after a defense verdict in a medical malpractice case in which a juror had done Internet research on a medical procedure at issue in the case, and regarding the plaintiff ’s medications.364

Oregon – Civil: Modern;  Criminal: Modern Civil Instructions Oregon’s Uniform Civil Jury Instructions were revised in 2011 to more explicitly prohibit jurors from using the Internet or using other electronic tools to find information about a case; or communicating about the case via cell phone, e-mail, text messaging, etc.365 The revised instruction, Ore. Uniform Civ. Jury Instr. 5.01, mentions a number of social media services by name, and includes some explanation of the rationale for the restrictions. 360. OUJI-CR 2d 13.9 (2008), available at http://www.oscn.net/applications/OCISWeb/DeliverDocument.asp?CiteID=81555. 361. For a discussion of when such instructions are used, see In Re Oklahoma Uniform Jury Instructions for Juvenile Cases, 2005 OK 12, 116 P.3d 119 (Ok. 2005), available at http://www.oscn.net/applications/ OCISWeb/DeliverDocument.asp?CiteID=441790. 362. Ok. Jury Instr. – Juv. 1.5 (2005), available at http://www.oscn.net/applications/OCISWeb/DeliverDocument.asp?CiteID=441799. 363. Id. 364. Thompson v. Krantz, 2006 OK CIV APP 60, 137 P.3d 693 (Okla. Civ. App. 2006). 365. See Beverly Michaelis, Oregon Adopts Social Media Jury Instruction, Ore. L. Pract. Mgmt. Blog, Jan. 26, 2011, http://oregonlawpracticemanagement.wordpress.com/2011/01/26/oregon-adopts-social-media-jury-instruction/. Reynolds Courts & Media Law Journal

381


Jury Instructions for the Modern Age You must decide this case based only on the evidence received here in this courtroom. You are not allowed to do any independent research on any idea, location, or person connected to this case. You are not allowed to check dictionaries or other reference sources. You are not allowed to search the Internet, Web sites, or blogs, or use any other electronic tools to get information about this case or to help you decide this case. The law forbids you from seeking information from any source outside this courtroom. Until you retire to deliberate, you may not discuss this case with anyone, including each other, friends, or even members of your family. When you deliberate, you may discuss the case with each other, but you may not discuss the case with anyone else until after you return a verdict and the case is at an end. I hope that you find this case interesting, and I know that many of you use cell phones, smartphones, Blackberries, iPhones, the Internet, and other tools of technology. Communicating with others about the case before it ends is strictly prohibited no matter what form you might use. You may not communicate by cell phone, email, Blackberry, iPhone, text messaging, on Twitter, through any blog or Web site, Internet chat room, or by way of any other social networking Web sites, including Facebook, My Space, LinkedIn, and YouTube. Please understand why the law limits such communication. The lawyers and parties have chosen you, and only you, as the people they want to make this very important decision for them. The lawyers did not choose anyone else in your family or social circle, or anyone in the virtual world of the Internet. They chose you. Anything outside the courtroom that may influence one of you is a potential virus to the group’s work. It is not fair to the parties to have people they never met, with backgrounds they do not know, influencing the decision in this case. That is why the law does not allow it.366

A comment to this instruction notes that “[t]he technological tools referenced in this instruction may be adjusted to delete obsolete technological tools and add newly popularized tools as public usage preferences evolve.”367

Criminal Instructions Oregon’s Uniform Criminal Jury Instructions mention the Internet and social media after a revision in 2009. Do not make any independent personal investigations into any facts or locations connected with this case. Do not look up any information from any source. Do not communicate any private or special knowledge about any of the facts of this particular case to your fellow jurors. Decide the case only on the evidence received here in court. Do not read any news stories, listen to any radio or television reports, or read or listen to anything on the Internet about this case or about anyone involved in this case. In this age of instant electronic communication and research, I want to emphasize that in addition to not speaking face-to-face with anyone about the case, you must not communicate with anyone about the case by any other means, including by telephone, text messages, e-mail, Internet chat, blogs, or social networking Web sites. You must not provide any information about the case to anyone by any means whatsoever, and that includes the posting of information about the case, or what you are doing in the case, on any device or Internet site, including blogs, chat rooms, social networking Web sites, or any other means. In addition to conventional research, you also must not use any Internet search engine-such as Google and all of the others-to look for any information about the case, the law that applies to the case, or the people involved in the case, including the defendant, the witnesses, the lawyers, or the judge. Do not use any map program or mapping system to attempt to view or locate any of the locations that may be discussed in this case. In short, do not communicate with anyone by any means concerning what you see or hear in the courtroom, and do not try to find out more about this case, by any means, other than what you learn in the courtroom.368 366. Ore. Uniform Civ. Jury Inst. [UCJI] 5.01 (2011). 367. Id., Comment. 368. Ore. Uniform Crim. Jury Inst. [UCrJI] 1004 (2009).

382

Volume 1, Issue 3


Jury Instructions for the Modern Age A note to this revised instruction explains that “The paragraphs concerning electronic communication and research were added following several incidents across the country in which jurors were blogging or doing Internet research during trials and deliberations.”369

Pennsylvania – Civil: Modern;  Criminal: Modern Civil Instructions Pennsylvania’s Suggested Standard Civil Jury Instructions admonish jurors not to speak to each other, or to others, about the case, and to not read, listen to or watch news stories about the case. The instructions have been updated to mention the Internet, and give a bit of the rationale behind these admonitions, but have not been updated to include the social media. This case is very important to all the parties involved. They are entitled to your full attention throughout the trial and to your fair and impartial consideration of the case. It is important, therefore, that to ensure fairness, you as jurors follow the following rules: a. You must not talk among yourselves about this case, or about anyone involved with it, until the end of the case when you go to the jury room to decide on your verdict. It may be tempting--however, please realize that some people are more easily influenced than others. It is only fair to allow each juror the opportunity to keep an open mind throughout the entire trial. Do not make up your mind about the verdict until you have heard all the witnesses and, of course, have been advised about the applicable law, which I do not present until the end of the trial. b. You must not talk with anyone in the courthouse about this case, or about anyone involved with it, until the trial has ended and you have been discharged as jurors. When you are outside the courtroom, do not let anyone tell you anything about the case, or about anyone involved with it [until the trial has ended and your verdict has been accepted by me]. If someone should try to talk to you about the case [during the trial], please report it to me. During the trial you should not talk with or speak to any of the parties, lawyers, or witnesses involved in this case—you should not even pass the time of day with any of them. It is important not only that you do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the lawsuit sees you talking to a person from the other side-even if it is simply to pass the time of day-an unwarranted and unnecessary suspicion about your fairness might be aroused. If any lawyer, party, or witness does not speak to you when you pass in the hall, ride the elevator, or the like, remember it is because they are not supposed to talk or visit with you, either. [That is why you are asked to wear your juror tags. It denotes you are someone very special who is not to be approached in any way.] c. You must not talk with anyone outside the courthouse or at home. Do not discuss this case with anyone not on the jury. This includes your family and friends. When you go home, you may tell your family or best friend you have been selected as a juror in a civil case and the expected length of the trial. You should not tell them anything more about the case. Even though a further explanation by you may begin innocently, once you finish talking, the other person is not going to just stand there and say nothing. That person will say something and that response may influence your thinking. Your thinking should be influenced only by what you learn in the courtroom. [No matter what kind of case, you will see someone downtown you know over lunch today perhaps. Some friends feel compelled to tell you what your verdict should be, not having heard any of the evidence nor knowing what the law is. So please ask them to respect your role as a juror and the oath you have taken.] d. You must not watch or listen to any news programs, or read any news stories or articles about the case, or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it. [In fact, until the trial is over, I suggest that you avoid reading any newspapers or news journals at all, and avoid listening to any TV or radio newscasts at all. I do not know whether there might be any news reports of this case, but if there are, you might inadvertently

369. UCrJI 1004, Comment (2009). Reynolds Courts & Media Law Journal

383


Jury Instructions for the Modern Age find yourself reading or listening to something before you could do anything about it.] e. You must not conduct any independent research or investigation about the case on your own. You must decide all questions of fact in this case from the evidence received in this trial and not from any other source. You must not make any independent investigation of the facts or the law or consider or discuss facts as to which there is no evidence. This means, for example, that you must not on your own visit the scene, conduct experiments, or consult reference works for additional information. Also, you must not perform computer research or consult the Internet for information. You must decide this case solely on the evidence presented at trial and the law given to you by the court. f. Keep an open mind. Do not make up your mind during the trial about what the verdict should be. Keep an open mind until after you have gone to the jury room to decide the case and you and your fellow jurors have thoroughly discussed the evidence.370

The subcommittee’s note to this instruction discusses “[t]he danger created when a juror communicates with persons outside the courthouse, or conducts independent research or an investigation of issues raised during a trial…”371

Criminal Instructions The admonition against discussion of or exposure to outside information contained in Pennsylvania’s criminal instructions has been revised to mention the Internet and other electronic media. 1. Our system of criminal law allows you to consider only the evidence, arguments, and legal instructions that are presented during the course of the trial. You must avoid anything that might result or appear to result in your being exposed to outside information or influence. Therefore, you should not communicate with anyone else about the case or listen to others talk about the case until the trial is completely over and I discharge you. By “communicate,” I mean more than just not talking face-toface with other people about the case. Please do not communicate with anyone about the case by cell phone, text message, e-mail, or by posting information about the case or what you are doing as a juror on any website. You cannot even discuss the case with members of your family, close friends, court personnel, or other members of the jury. Thus, you should not have any conversations, even casual conversations, with the defendant, counsel for both sides, any witnesses, or other members of the jury. 2. Do not read, listen to, or watch anything about the case in newspapers or magazines, or on radio or television, or the Internet. 3. Do not try to get information relevant to the case on your own. Do not make any investigation, do any research, visit the scene, or conduct any experiment. Do not conduct any Internet search about the facts of the case, the participants, or the law regarding these matters. 4. Your only information about this case should come to you while you are all together, acting as a jury, in the presence of me, the attorneys, and the defendant. [Please report to me promptly if you ever suspect that you have been exposed to improper outside information or influence or that someone has deliberately tried to expose you to that sort of thing.]372

The admonition against discussion of or exposure to outside information during recesses is much more simple, and is expressed in just one general sentence that does not get into specifics. During this recess, do not discuss the case with anyone. Do not allow any information about the case to come to your attention from any source outside the courtroom.373

370. Pa. Bar Inst., Pa. Sugg. Std. Civ. Jury Instr. [Pa. SSJI (Civ.)], 1.52 (3d ed. 2008, rev. 2010). 371. Id., subcommittee’s note (citing Pratt v. St. Christopher’s Hospital, 866 A.2d 313 [Pa. 2005] [affirming reversal of defense verdict in medical malpractice action in which a juror alleged that other jurors had spoken to relatives and friends in the medical profession, as well as to personal physicians, concerning whether the defendant physician acted within the standard of care]). 372. Pa. Bar Inst., Pa. Sugg. Std. Crim. Jury Instr. [Pa. SSJI (Crim.)] 2.06 (2008, rev. 2010). 373. Pa. SSJI (Crim.) 2.06A (2008, rev. 2010).

384

Volume 1, Issue 3


Jury Instructions for the Modern Age

Cases In a 2011 murder case, a court declared a mistrial after discovering that a juror had done online research about the injuries suffered by the victim, and told the judge that she had relied on that information in deliberations.374 According to the jury foreperson, the juror who did the research “interpreted jury instructions as only applying to specific information about the Cherry case, not research on general aspects or injuries.”375 The district attorney declined to prosecute the juror, saying that the juror “did not willfully violate the court’s instructions, but rather misunderstood them.”376

Rhode Island – Civil: Archaic;  Criminal: No Instructions General Instructions While there is no instruction regarding the Internet and social media in Rhode Island’s formal civil instructions, in 2009 Superior Court Presiding Justice Joseph F. Rodgers Jr. distributed an instruction on the question to all judges of the court. The revised policy warns jurors against talking about the case “either personally or through computers, cell phone messaging, personal electronic and media devices or other forms of wireless communication.” It also forbids conducting Internet searches about the case, or participating in chat rooms or blogs mentioning the case.377

Rodgers added that similar language would be added to the handbook given to jurors in Rhode Island.378 But the current version of the pamphlet, titled Called for Jury Service: Why Me?, includes only general information about extrinsic information, and does not mention the Internet or social media.379

Civil Instructions Rhode Island’s model civil jury instructions have not been revised since 2003. Thus the only instruction touching on juror use of the Internet is a non-specific statement regarding what constitutes evidence. Anything you might see or hear outside the courtroom or when the court is not in session is not evidence and must be ignored by you even if what you see or hear is something done or said by one of the parties, their attorneys or even a witness in the case. Only the evidence that has been presented here in the courtroom is to be considered by you in deciding the facts of this case.380

Criminal Instructions Rhode Island does not have a recent set of model instructions for criminal trials. Local practice is to use instructions from prior cases in Rhode Island’s federal district court, 374. Michael R. Sisak, Judge Dismisses Juror, Declares Mistrial, The [Wilkes-Barre, Pa.] Citizen’s Voice, Jan. 14, 2011, http://citizensvoice.com/news/update-judge-dismisses-juror-declares-mistrial-1.1090158. The jury had reached a verdict on one count, and was split on the other count. Id.. 375. Id. 376. Andrew Staub, Attorney: “Juror No. 11” will not face charges, The [Wilkes-Barre, Pa.] Citizen’s Voice, Feb. 11, 2001, http://citizensvoice.com/news/attorney-juror-no-11-will-not-face-charges-1.1103141. 377. Talia Buford, New juror policy accounts for new technology, Providence [R.I.] Journal, May 17, 2009, http://www.projo.com/news/content/TWITTER_AND_THE_JURY_05-17-09_C7EA4AE_ v24.3549604.html. 378. Id. 379. R.I. Judiciary, Called for Jury Service: Why Me?, available at http://www.courts.ri.gov/JuryService/PDF/SuperiorJuryBooklet.pdf. 380. R.I. Model Civ. Jury Instr. 101 (2003). Reynolds Courts & Media Law Journal

385


Jury Instructions for the Modern Age which are compiled on the court’s web site.381

Cases The 2004 retrial of Destie B. Ventre for murder (after his conviction was reversed for inadequate jury instructions on self-defense) ended in a mistrial after a juror researched the definitions of “murder,” “manslaughter,” and “self-defense” online and shared the information with fellow jurors.382

South Carolina – Civil: Modern;  Criminal: Modern The civil and criminal jury instructions compiled by the South Carolina Courts Administration are “merely suggestions,” and “are not required and have not been sanctioned or approved by the South Carolina Supreme Court.”383

Civil Instructions South Carolina’s civil instructions mention the Internet only in the admonition against exposure to coverage of the case. During the trial, do not read, listen to, or watch any news reports about this case. This includes anything that may be in the newspapers or on the internet, radio, or television. You must not consider anything you may have read or heard about the case outside the courtroom, whether before or during the trial. It is important that you keep an open mind and not decide any issue in the case until all of the evidence has been presented, the parties have made their closing arguments, and I have instructed you on the law in this case.384

The recess instruction, however, is not this specific, telling jurors only to “not read, watch, or listen to any news reports about this trial.”385

Criminal Instructions

The state’s criminal instructions repeat the admonition from the civil instructions.386

Other In addition to the scant provisions in the civil and criminal jury instructions, the South Carolina Supreme Court has banned use of “audible pagers, cell phones, and any other personal communication devices” in all courtrooms in the state.387 This ban applies to all

381. See U.S. District Ct. for the Dist. of R.I., List of Current Criminal Jury Instructions, http:// www.rid.uscourts.gov/menu/judges/jurycharges/jurychargelist.asp. 382. Mike McKinney, Federal Hill murder case resolved after 9 years, Newsblog, Providence [R.I.] Journal, Oct. 12, 2007, http://newsblog.projo.com/archives/2007/10/federal_hill_mu.html. A retrial after the mistrial ended in another conviction, which was also reversed. Finally, Ventre pleaded guilty and was sentenced in 2007. Id. 383. S.C. Civ. Jury Charges, Acknowledgment and Caveat (n.d. [2007?]), http://www.charlestonbar.org/ CM/ArchivedNewsletters/CivilCharges.doc. 384. S.C. Civ. Jury Charges, ch. 3, General Charge (n.d. [2007?]), http://www.charlestonbar.org/CM/ArchivedNewsletters/CivilCharges.doc. 385. S.C. Civ. Jury Charges, ch. 4, Recesses (n.d. [2007?]), http://www.charlestonbar.org/CM/ArchivedNewsletters/CivilCharges.doc. 386. S.C. Crim. Jury Charges, ch. 3, General Charge (n.d. [2007?]), http://www.charlestonbar.org/CM/ ArchivedNewsletters/GSInstructions2.doc. 387. Order No. 2000-08-25-01, (S.C. Aug. 25, 2000), http://www.sccourts.org/courtOrders/displayOrder. cfm?orderNo=2000-08-25-01.

386

Volume 1, Issue 3


Jury Instructions for the Modern Age individuals in the courtroom, including attorneys, jurors, staff members, litigants, witnesses, or members of the general public.388 In 2009, the court ordered that all jurors be specifically admonished not to use these devices to discuss the case or to conduct online research. The court shall instruct jurors selected to serve on a jury that until their jury service is concluded, they shall not: (a) discuss the case with others, including other jurors, except as otherwise authorized by the court; (b) read or listen to any news reports about the case; (c) use a computer, cellular phone, or other electronic device with communication capabilities while in attendance at trial or during deliberation. These devices may be used during lunch breaks, but may not be used to obtain or disclose information prohibited in subsection (d) below; (d) use a computer, cellular phone, or other electronic device with communication capabilities, or any other method, to obtain or disclose information about the case when they are not in court. Information about the case includes, but is not limited to the following: (i) information about a party, witness, attorney, or court officer; (ii) news accounts of the case; (iii) information collected through juror research on any topics raised or testimony offered by any witness; (iv) information collected through juror research on any other topic the juror might think would be helpful in deciding the case. Notice of the contents of this Order shall be given to jurors.389

South Dakota – Civil: Archaic;  Criminal: Archaic Civil Instructions The admonitions in South Dakota’s civil jury instructions against discussing or reading about the case have not been updated to mention social media or the Internet. Finally, to insure fairness, I ask you as jurors to obey the following rules: (1) Do not talk about this case among yourselves until the end of the case when you go to the jury room to decide on your verdict. (2) Do not talk with anyone else about this case until the trial has ended and you have been discharged as jurors. “Anyone else” includes members of your family and your friends. You may tell them that you are a juror in a state civil case, but do not tell them anything else about it until after you have returned a verdict. (3) Do not let anyone tell you anything about the case when you are outside the courtroom. If someone should try to approach you and attempt to talk to you about the case, please report it to me immediately. (4) Do not talk with or speak to any of the parties, lawyers, or witnesses involved in this case. It is important not only that you do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the lawsuit sees you talking to a person from the other side—even if it is simply to exchange greetings—an unwarranted and unnecessary suspicion about your fairness might be aroused. If a lawyer, party, or witness does not speak to you when you pass in the hall, ride the elevator or the like, please keep in mind that they also are instructed to avoid talking or visiting with you. 388. Id. The only exception is for law enforcement officers, unless the officer is present in the courtroom as a witness. Id., n.1. 389. Re Juror use of Personal Communication Devices (order) (S.C. July 20, 2009), http://www.sccourts. org/courtOrders/displayOrder.cfm?orderNo=2009-07-20-01. Reynolds Courts & Media Law Journal

387


Jury Instructions for the Modern Age (5) Do not read any news stories or articles about the case or listen to any radio or television reports about the case. (6) Do not do any research or make any investigation about the case on your own. (7) Do not make up your mind during the trial about what the verdict should be. Keep an open mind until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence.390

Criminal Instructions The admonishment to jurors about discussing or researching cases in South Dakota’s criminal instructions was adopted in 1998, and has not been updated. When you are outside the courtroom, please do not discuss this case with anyone, and do not permit anyone to discuss it with you. Also, do not begin to form or express any opinion, or reach any conclusion about any issue in this case until the case is finally concluded and you start to deliberate. I intend to remind you of this admonition before each recess, but if I do not, remember this instruction. If anyone does attempt to discuss the case with you, please refuse the offer and inform me or the bailiff immediately. If family or friends ask you about the trial, please tell them that you may not discuss it until after the verdict. Do not talk to any of the attorneys, witnesses or parties in the case. Even an innocent conversation may appear to be improper to others. There may publicity in the newspapers, on the radio or on the television concerning this trial. You may not read or listen to those accounts, and must confine your attention to the court proceedings. Please, listen attentively to the evidence as it comes from the witnesses, and reach a verdict solely upon what you hear and see in the courtroom. If you have any questions or problems, please inform the bailiff.391

Such an admonishment is required by statute: Jurors shall, at each adjournment of court, whether permitted to separate or kept in charge of officers, be admonished by the court as follows: You are reminded that you are not to discuss any aspect of this case among yourselves or with anyone else and that you should not form or express any opinion on the case until it is given to you for decision.392

Cases In a 2009 decision, the South Dakota Supreme Court affirmed a trial court’s grant of a new trial in a products liability suit after the trial court discovered that a juror on the case had done research on the defendant companies when he received his jury summons, and uncovered prior litigation regarding their products.393 The juror’s research was not discovered during voir dire;394 and was finally revealed in the course of jury deliberations, when the juror revealed the results of his research to fellow jurors.395 In affirming the lower court, the Supreme Court said that while it was a “close case,”396 the information revealed by the juror “may have caused at least six of the jurors to decide in a manner inconsistent with the instructions given by the trial court if not the evidence as well.”397 390. S.D. Pattern Jury Instr., Civ. 1-10-60 (rev. 2007). 391. S.D. Pattern Jury Instr., Crim. [SDCL] 5-2-5 (2000). 392. S. D. Codified Laws § 23A-24-5 (2011). 393. Russo v. Takata Corp., 2009 S.D. 83, 774 N.W.2d 441 (S.D. 2009), reh’g denied (S.D. Nov. 9, 2009). 394. “The only question asked specific to Takata and any prior knowledge panel members might already possess was posed by counsel for Takata: ‘Okay. Before you got here this morning had anyone ever heard of Takata?’ No one, including [the juror who conducted the research] responded positively to the inquiry.” Id., ¶ 10, 774 N.W.2d at 445. 395. Id., ¶¶ 17-19, 774 N.W.2d at 446. 396. Id., ¶ 55, 774 N.W.2d at 454. 397. Id., ¶ 54, 774 N.W.2d at 454.

388

Volume 1, Issue 3


Jury Instructions for the Modern Age Today we announce no hard and fast rule that all such types of internet research by a juror prior to trial without notice to the court and counsel automatically doom a jury’s verdict. Rather, as we do in such close cases, we give deference to the trial court, which had the distinct advantage of being present throughout the nineteen-day trial. The trial court was in the best position to determine whether material was extrinsic to the issues before the jury, or whether the extraneous material prejudiced the jury. Based on the cold record before us, we cannot say that the trial court’s finding that Juror Flynn lacked credibility is clearly erroneous or that its award of a new trial rises to the level of an abuse of discretion. The trial court is affirmed.398

Tennessee – Civil: Modern;  Criminal: Modern Civil Instructions The admonition against discussion and research in Tennessee’s civil instructions has been updated to mention the Internet, as well as a number of social media sites and services. There are several rules concerning your conduct during the trial and during recesses that you should keep in mind. First, do not conduct your own private investigation into this case, although you may be tempted to do so. For example, do not visit the scene of an incident, read any textbooks or articles concerning any issue in this case, or consult any other source of information, including those on the internet. If you were to do that, you would be getting information that is not evidence. You must decide this case only on the evidence and law presented to you during the trial. Any juror who receives any information about this case other than that presented at trial must notify the court immediately. Second, do not discuss the case either among yourselves or with anyone else during the trial. You must keep an open mind until you have heard all the evidence, the attorneys’ closing arguments and my final instructions concerning the law. Any discussions before the conclusion of the case would be premature and improper. Third, do not permit any other person to discuss the case in your presence. If anyone does attempt to do so, report this fact to the Court immediately without discussing the incident with any of the other jurors. Fourth, do not speak to any of the attorneys, parties or witnesses in this case, even for the limited purpose of saying good morning. They are also instructed not to talk to you. In no other way can all the parties feel assured of your absolute impartiality. Fifth, you must not communicate with or provide any information, photographs or video to anyone by any means about this case. You must not use any electronic device or media, such as a telephone, cell phone, smart phone or computer; the Internet, any text or instant messaging service; or any chat room, blog, or website such as Facebook, My Space, Linkedln, YouTube or Twitter, to communicate with anyone or to conduct any research about this case. These devices may be used during breaks or recesses for personal reasons, but must not be used at any time during the trial to receive or send information about any issues related to this trial.399

A summary of this admonition, again mentioning specific social media, is repeated in the instructions prior to deliberations. I remind you that you are to decide this case based only on the evidence you have heard in court and on the law I have given you. You are prohibited from considering any other information and you are not to consult any outside sources for information. You must not communicate with or provide any information, photographs or video to anyone by any means about this case or your deliberations. You may not use any electronic device or media, such as a telephone, cell phone, smart phone or com 398. Id., ¶ 55, 774 N.W.2d at 454. 399. Tenn. Jud. Conf, Comm. on Pattern Jury Inst. (Civ.), 8 Tenn. Prac. Series, Tenn. Pattern Jury Inst., Civil 1.02 (2010). Reynolds Courts & Media Law Journal

389


Jury Instructions for the Modern Age puter; the Internet, any text or instant messaging service; or any chat room, blog, or website such as Facebook, My Space, Linkedln, YouTube or Twitter, to communicate with anyone or to conduct any research about this case.400

Criminal Instructions The preliminary instructions for juries in criminal cases include general admonitions against independent juror research and exposure to coverage of cases. During the course of the trial, you will receive all of the evidence you may properly consider to decide the case. Because of this, you should not attempt to do any research on your own or gather any information on your own that you think might be helpful. Do not engage in any outside reading, visit any places mentioned in the case, or try to learn about the case outside of this courtroom in any other manner. I do not know if there will be any media reports in the newspapers, on TV, or on the radio about this particular case. If there are, you are not permitted to read, watch, or listen to those reports. You, as jurors, must base your decision solely on the evidence you hear in the courtroom.401

While these instructions do not mention the Internet or social media, footnotes to each of these paragraphs suggest that the court may wish to utilize the separate instruction on independent research or discussion, which was updated in 2010 to include these newer technologies.402 You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in the case, and the [individuals] [corporations] involved in the case. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Please do not try to find out information from any source outside the confines of this courtroom. Until you retire to deliberate, you may not discuss this case with anyone, even your fellow jurors. After you retire to deliberate, you may begin discussing the case with your fellow jurors, but you cannot discuss the case with anyone else until you have returned a verdict and the case is at an end. I hope that for all of you this case is interesting and noteworthy. I know that many of you use cell phones, Blackberries, the internet and other tools of technology. You also must not talk to anyone about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone, through e-mail, 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, Facebook, My Space, LinkedIn, and YouTube.403

This instruction was based on the suggested jury instructions on â&#x20AC;&#x153;juror use of electronic communication technologiesâ&#x20AC;? formulated by the U.S. Judicial Conference for civil and criminal cases in federal courts.404 The concluding criminal instructions include a summary of the prior admonition. During your deliberations, you must not communicate with or provide any information to anyone by any means about this case outside the jury deliberation room. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet service, or any text or instant messaging service; or any internet chat room, blog, or website, including, but not limited to, Facebook, My Space, LinkedIn, YouTube or Twitter, to commu 400. Id., Tenn. Pattern Jury Inst., Civil 15.02 (2010). 401. Tenn. Jud. Conf, Comm. on Pattern Jury Inst. (Crim.), 7 Tenn. Pract. Series, Tenn. Pattern Jury Inst., Crim. 1.00 (2010). 402. Id., nn.1-2. 403. Id., Tenn. Pattern Jury Inst., Crim. 1.09 (2010). 404. Id., n.1 See also U.S. Jud. Conf. Comm. on Ct. Admin. & Case Mgmt., Proposed Model Jury Instrs., supra note 29.

390

Volume 1, Issue 3


Jury Instructions for the Modern Age nicate to anyone any information about this case or to conduct any research about this case until you have returned your verdict and the trial has concluded.405

Texas – Civil: Modern;  Criminal: Archaic Civil Instructions In December 2010, the Texas Supreme Court amended the state’s civil procedure rules to require admonitions against using the Internet and social media to discuss or research cases.406 Immediately after jurors are selected for a case, the court must instruct them to turn off their phones and other electronic devices and not to communicate with anyone through any electronic device while they are in the courtroom or while they are deliberating. The court must also instinct them that, while they are serving as jurors, they must not post any information about the case on the Internet or search for any information outside of the courtroom, including on the Internet, to try to learn more about the case. If jurors are permitted to separate before they are released from jurv duty, either during the trial or after the case is submitted to them, the court must instruct them that it is their duty not to communicate with, or permit themselves to be addressed by, any other person about any subject relating to the case.407

A different provision of the Texas civil procedure rules was amended in 2011 to mandate an instruction on juror use of electronic devices immediately after voir dire, and an instruction prior to any recess regarding juror communication about the case. Immediately after jurors are selected for a case, the court must instruct them to turn off their phones and other electronic devices and not to communicate with anyone through any electronic device while they are in the courtroom or while they are deliberating. The court must also instruct them that, while they are serving as jurors, they must not post any information about the case on the Internet or search for any information outside of the courtroom, including on the Internet, to try to learn more about the case. If jurors are permitted to separate before they are released from jury duty, either during the trial or after the case is submitted to them, the court must instruct them that it is their duty not to communicate with, or permit themselves to be addressed by, any other person about any subject relating to the case.408

Fulfilling its own requirements, the court has amended the state’s civil jury instructions to reflect new media technologies, mentioning specific sites and services.409 Thus the instructions given to potential jurors at the beginning of voir dire, once they are sworn, now read as follows: 405. Tenn. Jud. Conf, Comm. on Pattern Jury Instrs. (Crim.), 7 Tenn. Pract. Series, Tenn. Pattern Jury Inst., Crim. 43.14 (2010). 406. Amendments to Tex. R. Civ. Pro. 281 and 284 and to the Jury Instrs. Under Texas R. Civ. Pro. 226a, Misc. Docket No. 11-9047 (order) (Tex. 2011), available at http://www.supreme.courts.state.tx.us/miscdocket/11/11904700.pdf. 407. Tex. R. Civ. P. 284 (2010), as amended by Amendments to Tex. R. Civ. Pro. 281 and 284 and to the Jury Instr. Under Texas R. Civ. Pro. 226a, id. 408. Tex. R. Civ. P. 284. 409. See Amendments to Tex. R. Civ. Pro. 281 and 284 and to the Jury Instrs. Under Texas R. Civ. Pro. 226a, supra. The instructions provide that “the following oral instructions, with such modifications as the circumstances of the particular case may require, shall be given by the court to the jurors after they have been sworn as provided in Rule 226 and before the voir dire examination.” Id. at 3. The Texas Supreme Court is authorized to promulgate the instructions under Texas R. Civ. Pro. 226A, which provides that “The court must give instructions to the jury panel and the jury as prescribed by order of the Supreme Court under this rule.” Texas R. Civ. Pro. 226A (2010). Reynolds Courts & Media Law Journal

391


Jury Instructions for the Modern Age Thank you for being here. We are here to select a jury. Twelve [six] of you will be chosen for the jury. Even if you are not chosen for the jury, you are performing a valuable service that is your right and duty as a citizen of a free country. Before we begin: Turn off all phones and other electronic devices. While you are in the courtroom, do not communicate with anyone through any electronic device. [For example, do not communicate by phone, text message, email message, chat room, blog, or social networking websites such as Facebook, Twitter, or Myspace.] [I will give you a number where others may contact you in case of an emergency.] Do not record or photograph any part of these court proceedings, because it is prohibited by law. If you are chosen for the jury, your role as jurors will be to decide the disputed facts in this case. My role will be to ensure that this case is tried in accordance with the rules of law. Here is some background about this case. This is a civil case. It is a lawsuit that is not a criminal case. The parties are as follows: The plaintiff is      , and the defendant is      . Representing the plaintiff is      , and representing the defendant is      . They will ask you some questions during jury selection. But before their questions begin, I must give you some instructions for jury selection. Every juror must obey these instructions. You may be called into court to testify about any violations of these instructions. If you do not follow these instructions, you will be guilty of juror misconduct, and I might have to order a new trial and start this process over again. This would waste your time and the parties’ money, and would require the taxpayers of this county to pay for another trial. These are the instructions. 1. To avoid looking like you are friendly with one side of the case, do not mingle or talk with the lawyers, witnesses, parties, or anyone else involved in the case. You may exchange casual greetings like “hello” and “good morning.” Other than that, do not talk with them at all. They have to follow these instructions too, so you should not be offended when they follow the instructions. 2. Do not accept any favors from the lawyers, witnesses, parties, or anyone else involved in the case, and do not do any favors for them. This includes favors such as giving rides and food. 3. Do not discuss this case with anyone, even your spouse or a friend, either in person or by any other means [including by phone, text message, email message, chat room, blog, or social networking websites such as Facebook, Twitter, or Myspace]. Do not allow anyone to discuss the case with you or in your hearing. If anyone tries to discuss the case with you or in your hearing, tell me immediately. We do not want you to be influenced by something other than the evidence admitted in court. 4. The parties, through their attorneys, have the right to ask you questions about your background, experiences, and attitudes. They are not trying to meddle in your affairs. They are just being thorough and trying to choose fair jurors who do not have any bias or prejudice in this particular case. 5. Remember that you took an oath that you will tell the truth, so be truthful when the lawyers ask you questions, and always give complete answers. If you do not answer a question that applies to you, that violates your oath. Sometimes a lawyer will ask a question of the whole panel instead of just one person. If the question applies to you, raise your hand and keep it raised until you are called on.410

The court also amended the instructions to be given once a jury has been selected. Members of the Jury [or Ladies and Gentlemen]: You have been chosen to serve on this jury. Because of the oath you have taken and your selection for the jury, you become officials of this court and active participants in our justice system. [Hand out the written instructions.] 410. Amendments to Tex. R. Civ. Pro. 281 and 284, and to Jury Instr. Under Texas R. Civ. Pro. 226a, supra, at 3-5.

392

Volume 1, Issue 3


Jury Instructions for the Modern Age You have each received a set of written instructions. I am going to read them with you now. Some of them you have heard before and some are new. 1. Turn off all phones and other electronic devices. While you are in the courtroom and while you are deliberating, do not communicate with anyone through any electronic device. [For example, do not communicate by phone, text message, email message, chat room, blog, or social networking websites such as Facebook, Twitter, or Myspace.] [I will give you a number where others may contact you in case of an emergency.] Do not post information about the case on the Internet before these court proceedings end and you are released from jury duty. Do not record or photograph any part of these court proceedings, because it is prohibited by law. 2. To avoid looking like you are friendly with one side of the case, do not mingle or talk with the lawyers, witnesses, parties, or anyone else involved in the case. You may exchange casual greetings like “hello” and “good morning.” Other than that, do not talk with them at all. They have to follow these instructions too, so you should not be offended when they follow the instructions. 3. Do not accept any favors from the lawyers, witnesses, parties, or anyone else involved in the case, and do not do any favors for them. This includes favors such as giving rides and food. 4. Do not discuss this case with anyone, even your spouse or a friend, either in person or by any other means [including by phone, text message, email message, chat room, blog, or social networking websites such as Facebook, Twitter, or Myspace]. Do not allow anyone to discuss the case with you or in your hearing. If anyone tries to discuss the case with you or in your hearing, tell me immediately. We do not want you to be influenced by something other than the evidence admitted in court. 5. Do not discuss this case with anyone during the trial, not even with the other jurors, until the end of the trial. You should not discuss the case with your fellow jurors until the end of the trial so that you do not form opinions about the case before you have heard everything. After you have heard all the evidence, received all of my instructions, and heard all of the lawyers’ arguments, you will then go to the jury room to discuss the case with the other jurors and reach a verdict. 6. Do not investigate this case on your own. For example, do not: a. try to get information about the case, lawyers, witnesses, or issues from outside this courtroom; b. go to places mentioned in the case to inspect the places; c. inspect items mentioned in this case unless they are presented as evidence in court; d. look anything up in a law book, dictionary, or public record to try to learn more about the case; e. look anything up on the Internet to try to learn more about the case; or f. let anyone else do any of these things for you. This rule is very important because we want a trial based only on evidence admitted in open court. Your conclusions about this case must be based only on what you see and hear in this courtroom because the law does not permit you to base your conclusions on information that has not been presented to you in open court. All the information must be presented in open court so the parties and their lawyers can test it and object to it. Information from other sources, like the Internet, will not go through this important process in the courtroom. In addition, information from other sources could be completely unreliable. As a result, if you investigate this case on your own, you could compromise the fairness to all parties in this case and jeopardize the results of this trial. 7. Do not tell other jurors about your own experiences or other people’s experiences. For example, you may have special knowledge of something in the case, such as business, technical, or professional information. You may even have expert knowledge or opinions, or you may know what happened in this case or another similar case. Do not tell the other jurors about it. Telling other jurors about it is wrong because it means the jury will be considering things that were not admitted in court. …411

Finally, the court revised the instruction immediately prior to deliberations to reiterate the admonition against use of electronic devices or resources. 411. Id. at 5-7. Reynolds Courts & Media Law Journal

393


Jury Instructions for the Modern Age After the closing arguments, you will go to the jury room to decide the case, answer the questions that are attached, and reach a verdict. You may discuss the case with other jurors only when you are all together in the jury room. Remember my previous instructions: Do not discuss the case with anyone else, either in person or by any other means. Do not do any independent investigation about the case or conduct any research. Do not look up any words in dictionaries or on the Internet. Do not post information about the case on the Internet. Do not share any special knowledge or experiences with the other jurors. Do not use your phone or any other electronic device during your deliberations for any reason. [I will give you a number where others may contact you in case of an emergency.]412

In addition to the civil jury instructions promulgated by the Texas Supreme Court, the Texas Bar Association has published compilations of civil instructions in four areas: business, consumer, insurance, and employment law; family law; general negligence and intentional personal torts; and malpractice, and premises and products liability.413 The Texas Bar’s current instructions are older versions of the instructions created by the courts, and have not been updated to include mentions of the Internet and social media.414

Criminal Instructions The Texas State Bar recently began compiling an unofficial collection of Criminal Pattern Jury Charges, of which two volumes – on defenses and intoxication and controlled substances – have been published.415 Previously, the Texas District & County Attorneys Association had compiled its own unofficial collection of instructions on offenses under the Texas Penal Code.416 Neither of these compilations contain any instructions regarding juror communications or research. Such an instruction is also missing from the privately-published Texas Criminal Jury Charges, the most comprehensive collection of the state’s instructions in criminal cases.417

Utah – Civil: Modern;  Criminal: Modern Utah’s Supreme Court is in the process of creating sets of civil and criminal jury instructions with the court’s official imprimatur.418 As each individual provision of the civil instructions is adopted by the court’s advisory committee, it replaces a provision in a set of civil instructions compiled by the Utah State Bar, which had been the accepted compilation in the state.419 The court’s criminal instructions, meanwhile, are the first such compilation in the state. 412. Id. at 8. 413. See Texas Bar Books, Texas Pattern Jury Charges, http://texasbarbooks.net/texas-pattern-jurycharges/. See also H.E. Butt Grocery Co. v. Bilotto, 928 S.W.2d 197, 199 (Tex. App.–San Antonio 1996) (“Although we are aware that the Texas Pattern Jury Charges are not “law”, they are heavily relied upon by both the bench and bar.”), aff ’d, 985 S.W.2d 22 (Tex. 1998). 414. See Comm. on Pattern Jury Charges, State Bar of Tex., Pattern Jury Charges: Business, Consumer, Employment, Tex. Pattern Jury Instr. 100.1, 100.2, 100.6 (2000). 415. Id. 416. See Texas Dist. & County Attys. Ass’n., Jury Charges [Penal Code], http://www.tdcaa.com/jury_ charges/penal_code. The group also compiled instructions on punishment provisions; criminal procedure; health and safety; and the Texas Transportation Code. See Texas Dist. & County Attys. Ass’n., Jury Charges, http://www.tdcaa.com/jury_charges. 417. See Elizabeth Berry & George Gallagher, Texas Criminal Jury Charges (2009). 418. Model Utah Jury Instrs. [MUJI 2d], Introduction (2d ed. 2011), http://www.utcourts.gov/resources/muji/index.asp. 419. The Utah Bar’s civil instructions, Model Utah Jury Instrs., 1st ed. [MUJI 1st], are available at http://www.utcourts.gov/committees/muji/Civil%20MUJI.doc.

394

Volume 1, Issue 3


Jury Instructions for the Modern Age

Civil Instructions The court’s new civil instructions include two initial admonitions regarding the Internet and social media. The first of these is a general admonition that mentions these new technologies in the course of telling jurors not to discuss or research the case. … Do not allow anything that happens outside this courtroom to affect your decision. During the trial do not talk about this case with anyone, including your family, friends, or even your fellow jurors until after I tell you that it is time for you to decide the case. When it is time to decide the case, you will meet in the jury room. You may discuss the case only in the jury room, at the end of the trial, when all of the jurors are present. After the trial is over and I have released you from the jury, you may discuss the case with anyone, but you are not required to do so. During the trial you must not listen to anyone talk about the case outside this courtroom. Although it is a normal human tendency to talk with other people, do not talk with any of the parties or their lawyers or with any of the witnesses. By this, I mean do not talk with them at all, even to pass the time of day. While you are in the courthouse, the clerk may ask you to wear a badge identifying yourself as a juror so that people will not try to discuss the case with you. If anyone tries to talk to you about the case, tell that person that you cannot discuss it because you are a juror. If he or she keeps talking to you, simply walk away and tell the clerk or the bailiff that you need to see me to report the incident. If you must talk to me, do not discuss it with your fellow jurors. During the trial do not read about the case in the newspapers or on the internet or listen to radio or television broadcasts about the trial. If a headline or an announcement catches your attention, do not read or listen further. Media accounts may be inaccurate or may contain matters that are not evidence. You must decide this case based only on the evidence presented in this trial and the instructions that I provide. Do not investigate the case or conduct any experiments. Do not do any research on your own or as a group. Do not use dictionaries, the internet, or other reference materials. Do not contact anyone to assist you. Do not visit or view the scene of the events in this case. If you happen to pass by the scene, do not stop or investigate. … 420

The second is a specific, detailed instruction admonishing jurors against use of electronic devices. The instruction admirably explains to jurors the reason behind restrictions on Internet and social media use during trial. Serious problems have been caused around the country by jurors using computer and electronic communication technology. It’s natural that we want to investigate a case, or to share with others our thoughts about the trial, and it’s easy to do so with the internet and instant communication devices or services, such as Blackberries, iPhones, Facebook, Twitter, and so on. However, please understand that the rules of evidence and procedure have developed over hundreds of years in order to ensure the fair resolution of disputes. The fairness of the entire system depends entirely on you, the jurors, reaching your decisions based on evidence presented to you in court, and not on other sources of information. You violate your oath as jurors if you conduct your own investigations or communicate about this trial with others. Jurors have caused serious consequences for themselves and the courts by “Googling” the parties, issues, or counsel; “Twittering” with friends about the trial; using Blackberries or iPhones to gather or send information on cases; posting trial updates on Facebook pages; using Wikipedia or other internet information sources, and so on. Even using something as seemingly innocent as “Google Maps” can result in a mistrial. Post-trial investigations are common and can disclose these improper activities. If they are discovered, they will be brought to my attention and the entire case might have to be retried, at substantial cost. 420. MUJI 2d, Civ. 101A (2010), available via http://www.utcourts.gov/resources/muji/. Reynolds Courts & Media Law Journal

395


Jury Instructions for the Modern Age Violations may also result in substantial penalties for the juror. So I must warn you again - do not use your cellphone or computer to investigate or discuss anything connected with this trial until it is completely finished. Do no internet research of any kind, and advise me if you learn of any juror who has done so.421

A committee note to this instruction relates that “[n]ews articles have highlighted the problem of jurors conducting their own internet research or engaging in outside communications regarding the trial while it is ongoing.” “The court,” the note continued, “may therefore wish to emphasize the importance of the traditional admonitions in the context of electronic research or communications.”422 The instruction for recesses also includes an admonition against discussing the case, or accessing the Internet: From time to time I will call for a recess. It may be for a few minutes, a lunch break, overnight or longer. You will not be required to remain together while we are in recess. You must obey the following instructions during the recesses: Do not talk about this case with anyone – not family, friends or even each other. While you are in the courthouse, the clerk may ask you to wear a badge identifying yourself as a juror so that people will not try to discuss the case with you. If anyone tries to discuss the case in your presence, despite your telling them not to, tell the clerk or the bailiff that you need to see me. If you must talk to me, do not discuss it with your fellow jurors. Although it is a normal human tendency to talk with other people, do not talk or otherwise communicate with any of the parties or their lawyers or with any witness. By this, I mean do not talk with them at all, even to pass the time of day. Do not read about the case in the newspapers or on the internet, or listen to radio, television or other broadcasts about the trial. If a headline or announcement catches your attention, do not read or listen further. Media accounts may be inaccurate and may contain matters that are not evidence. You must base your verdict only on the evidence that you see and hear in this courtroom. Since this case involves an incident that occurred at a particular location, you may be tempted to visit the scene yourself. Do not do so. Before a case comes to trial, changes may have occurred at the location after the event that gives rise to this lawsuit. Also, you might draw the wrong conclusions from an unguided visit without the benefit of explanation. Therefore, even if you happen to live near the location, do not go to it or near it until the case is over. Finally, do not make up your mind about what the verdict should be until after you have gone to the jury room to decide the case, and you and your fellow jurors have discussed the evidence. Keep an open mind until then.423

Criminal Instructions

The new criminal instructions424 include a specific instruction regarding the Internet and social media, similar to the provision in the civil instructions. Jurors have caused serious problems during trials by using computer and electronic communication technology. You may be tempted to use these devices to investigate the case, or to share your thoughts about the trial with others. However, you must not use any of these electronic devices while you are serving as a juror.

421. MUJI 2d, Civ. 101B (2010), available via http://www.utcourts.gov/resources/muji/. 422. MUJI 2d, Civ. 101B, Committee Note (2010), available via http://www.utcourts.gov/resources/muji/. 423. MUJI 2d, Civ. 110 (2010), available via http://www.utcourts.gov/resources/muji/. 424. Note that while there was no prior modern compilation of criminal jury instructions in Utah, both the new criminal and civil instructions are referred to as MUJI 2d. Model Utah Jury Instructions, 2d ed. [MUJI 2d], introduction (2011), http://www.utcourts.gov/resources/muji/index.asp.

396

Volume 1, Issue 3


Jury Instructions for the Modern Age You violate your oath as a juror if you conduct your own investigations or communicate about this trial with others, and you may face serious consequences if you do. Let me be clear: do not “Google” the parties, witnesses, issues, or counsel; do not “Tweet” or text about the trial; do not use Blackberries or iPhones to gather or send information on the case; do not post updates about the trial on Facebook pages; do not use Wikipedia or other internet information sources, etc. Even using something as seemingly innocent as “Google Maps” can result in a mistrial. Please understand that the rules of evidence and procedure have developed over hundreds of years in order to ensure the fair resolution of disputes. The fairness of the entire system depends on you reaching your decisions based on evidence presented to you in court, and not on other sources of information. Post-trial investigations are common and can disclose these improper activities. If they are discovered, they will be brought to my attention and the entire case might have to be retried, at substantial cost.425

Vermont – Civil: Archaic;  Criminal: Modern Vermont’s model civil and criminal instructions have not been adopted or approved by the Vermont Supreme Court.

Civil Instructions The general civil instructions, last updated in 2007, do not include an admonition against discussing or researching the case, on the Internet or otherwise.426 The instructions address this only very obliquely, by stating that the jurors should consider only the evidence presented at trial. It is your duty to determine the facts, and in so doing you must consider only the evidence I have admitted in the case. The term “evidence” includes the sworn testimony of the witnesses, and the exhibits admitted by the court during the trial.427

Criminal Instructions Vermont’s criminal jury instructions are much more developed in their approach to outside influences on jurors, including an instruction added in 2010 regarding use of electronic devices, which specifies several online and social media services. Your verdict must be based solely on the evidence admitted during the trial. During your deliberations, you must not seek any information about this case from any outside source, including but not limited to television, newspaper, radio, cell phones, iPhones, smart phones, BlackBerries, social networking sites, or any site on the internet. You also must not communicate by any means about your deliberations with anyone who is not a fellow juror. This includes tweeting, texting, blogging, emailing, posting information on a social networking site or other website, or any other means of communication at all.428

The criminal instructions also include a list of “questions to ask jurors at start of trial, and during trial” regarding exposure to media coverage of the case,429 and an instruction defin 425. MUJI 2d, Crim. 109B (2010), available via http://www.utcourts.gov/resources/muji/. 426. Vt. Civ. Jury Instr. Comm., Plain English Jury Instrs., Gen’l Jury Instrs. [A-H] (2007), http:// www.vtbar.org/Upload%20Files/WebPages/Attorney%20Resources/juryinstructions/civiljuryinstructions/generaljury.htm. 427. Id., Vt. Gen’l [Civ.] Jury Instr. A. 428. Vt. Crim. Jury Instr. Comm., Model Crim. Instr. 03-051 (adopted 2010), http://www.vtbar.org/ Upload%20Files/WebPages/Attorney%20Resources/juryinstructions/criminaljuryinstructions/1gene ralinstructions/MS03-051.htm. 429. Vt. Model Crim. Instr. 01-011 (adopted 2003), http://www.vtbar.org/Upload%20Files/WebPages/ Attorney%20Resources/juryinstructions/criminaljuryinstructions/1generalinstructions/ms01-011. Reynolds Courts & Media Law Journal

397


Jury Instructions for the Modern Age ing evidence as “oral testimony of the witnesses, and the exhibits that have been admitted [and the stipulations].”430

Virginia – Civil: Modern;  Criminal: Modern Civil Instructions The preliminary instruction of Virginia’s civil model jury instructions tells jurors not to discuss, research, or expose themselves to coverage of the case, including on the Internet and social media. In your determination of what the facts are, you alone must determine the credibility of the witnesses and the weight of the evidence. … Until this case is submitted to you for your deliberations, you should not decide any issue in the case, and you should not discuss the case with anyone or remain within hearing of anyone who is discussing it. There will be occasional recesses during the trial. During the recesses, you should not discuss the case with your fellow jurors or go to the scene or make any independent investigation or receive any information about the case from radio, television, or the newspapers. Once your deliberations commence, then you must discuss the case only in the jury room when all the members of the jury are present. Do not attempt at any time prior to the conclusion of the case to research any fact, issue, or law related to this case, whether by discussion with others, by research in a library or on the Internet, or by any other means or source. You must not use Internet maps, or any other program or device to search for and view any location discussed in the testimony. You must not search for any information about the case, or the law which applies to the case, or the people involved in the case, including the parties, the witnesses, the lawyers, or the judge. You must not communicate with anyone about the case by any other means, including by telephone, text messages, email, internet chat or chat rooms, blogs, or social web sites.431

Criminal Instructions Virginia’s model criminal instructions repeat the admonition of the civil instructions, using the same language.432

Cases In July 2010, a trial court set aside a guilty verdict and ordered a new trial in a murder case after discovering that the jury had seen personal journal entries by the murder victim, even though they had not been admitted into evidence in the case.433 The revelation came from an anonymous web commenter on the local newspaper’s website, who claimed to have been a juror in the case and wrote that the jurors had reviewed the journal. In response to a subpoena by the defendant, the newspaper willingly provided registration information, that allowed the court to determine the identity of the anonymous commenter.434 The defendant htm. A note for this instruction states that “These questions might be helpful in a high profile case; they are not necessary in every case.” Vt. Crim. Jury Instr. Comm., Notes Regarding Chapters and Sections, http://www.vtbar.org/Upload%20Files/WebPages/Attorney%20Resources/juryinstructions/criminaljuryinstructions/notes.htm. 430. Vt. Model Crim. Instr. 05-011 (adopted 2003), http://www.vtbar.org/Upload%20Files/WebPages/ Attorney%20Resources/juryinstructions/criminaljuryinstructions/1generalinstructions/ms05-011. htm. 431. Va. Model Jury Instr. – Civil No. 2.000 (1998). 432. See Va. Model Jury Instr. – Civil No. 2.050 (2010). 433. See Man convicted of murder in Bedford County will get new trial, GoDanRiver.com [(Danville, Va.) News & Advance ], July 26, 2010, http://www2.godanriver.com/news/2010/jul/26/man_convicted_ of_murder_in_bedford_county_will_get-ar-410734/. 434. Chris Dumond, Jury saw slain wife’s journals; Victim’s writings were not supposed to be considered,

398

Volume 1, Issue 3


Jury Instructions for the Modern Age was convicted in the retrial and sentenced to life plus three years.435

Washington – Civil: Modern;  Criminal: Modern Pattern instructions for both civil and criminal cases in Washington have been recently updated to warn jurors against using electronic resources during trial. But the instructions encourage the courts to convey this message from the very start of the jurors’ experience, as explained in a note to the civil instructions. The [civil] instruction warns jurors, after they have been selected to serve on a case, against participating in improper communications and research about the case. Some of this information, however, should be given to potential jurors before they arrive in the courtroom for jury selection. Courts should make sure that potential jurors who are reporting for jury duty know that they should not seek out or receive any information about pending legal cases or issues.436

Civil Instructions Washington’s general instruction to be given to civil jurors after voir dire was revised in 2010 to more explicitly detail electronic sources that the jurors should avoid during trial. It is essential to a fair trial that everything you learn about this case comes to you in this courtroom, and only in this courtroom. You must not allow yourself to be exposed to any outside information about this case. Do not permit anyone to discuss or comment about it in your presence, and do not remain within hearing of such conversations. You must keep your mind free of outside influences so that your decision will be based entirely on the evidence presented during the trial and on my instructions to you about the law. Until you are dismissed at the end of this trial, you must avoid outside sources such as newspapers, magazines, blogs, the internet, or radio or television broadcasts which may discuss this case or issues involved in this trial. If you start to hear or read information about anything related to the case, you must act immediately so that you no longer hear or see it. By giving this instruction I do not mean to suggest that this particular case is newsworthy; I give this instruction in every case. During the trial, do not try to determine on your own what the law is. Do not seek out any evidence on your own. Do not consult dictionaries or other reference materials. Do not conduct any research into the facts, the issues, or the people involved in this case. This means you may not use [Google or other internet search engines] [internet resources] to look into anything at all related to this case. Do not inspect the scene of any event involved in this case. If your ordinary travel will result in passing or seeing the location of any event involved in this case, do not stop or try to investigate. You must keep your mind clear of anything that is not presented to you in this courtroom. During the trial, do not provide information about the case to other people, including any of the lawyers, parties, witnesses, your friends, members of your family, or members of the media. If necessary, you may tell people (such as your employer) that you are a juror and let them know when you need to be in court. If people ask you for more details, you should tell them that you are not allowed to talk about the case until it is over. I want to emphasize that the rules prohibiting discussions include your electronic communications. You must not send or receive information about anything related to the case by any means, including by text messages, e-mail, telephone, internet chat, blogs, or social networking web sites.

(Danville, Va.) News & Advance, July 14, 2010, http://www2.godanriver.com/news/2010/jul/14/ jury_saw_slain_wifes_journals_victims_writings_wer-ar-411016/. 435. Chris Dumond, Earnest sentenced to life plus three years, (Danville, Va.) News & Advance, Jan. 25, 2010, http://www2.godanriver.com/news/2011/jan/25/earnest-sentenced-life-plus-three-yearsar-797303/. 436. 6 Wash. Prac., Wash. Pattern Jury Instr. Civ. [WPI] 1.01, Comment (5th ed. rev. 2010), available via http://government.westlaw.com/linkedslice/default.asp?SP=wciji-1000. Reynolds Courts & Media Law Journal

399


Jury Instructions for the Modern Age In short, do not communicate with anyone, by any means, concerning what you see or hear in the courtroom, and do not try to find out more about anything related to this case, by any means, other than what you learn in the courtroom. These rules ensure that the parties will receive a fair trial. If you become exposed to any information other than what you learn in the courtroom, that could be grounds for a mistrial. A mistrial would mean that all of the work that you and your fellow jurors put into this trial will be wasted. Re-trials are costly and burdensome to the parties and the public. Also, if you communicate with others in violation of my orders, you could be fined or held in contempt of court. After you have delivered your verdict, you will be free to do any research you choose and to share your experiences with others. [Remember that all phones, PDAs, laptops, and other communication devices must be turned off while you are in court and while you are in deliberations.] Throughout the trial, you must maintain an open mind. You must not form any firm and fixed opinion about any issue in the case until the entire case has been submitted to you for deliberation. As jurors, you are officers of this court. As such, you must not let your emotions overcome your rational thought process. You must reach your decision based on the facts proved to you and on the law given to you, not on sympathy, bias, or personal preference. To assure that all parties receive a fair trial, you must act impartially with an earnest desire to reach a just and proper verdict. To accomplish a fair trial takes work, commitment, and cooperation. A fair trial is possible only with a serious and continuous effort by each one of us, working together. Thank you for your willingness to serve this court and our system of justice.437

The pre-recess instruction for civil cases includes a similar level of detail regarding electronic resources. During this recess, and every other recess, do not discuss this case among yourselves or with anyone else, including your family and friends. This applies to your internet and electronic discussions as wellâ&#x20AC;&#x201D;you may not talk about the case via text messages, e-mail, telephone, internet chat, blogs, or social networking web sites. If anybody asks you about the case, or about the people or issues involved in the case, you are to explain that you are not allowed to discuss it. Do not allow anyone to give you information about the case, including in your electronic communications. If you overhear a discussion or start to receive information about anything related to this case, you must act immediately so that you no longer hear or see it. Do not read, view, or listen to any report from the newspaper, magazines, social networking sites, blogs, radio, or television on the subject of this trial. Do not conduct any internet research or consult any other outside sources about this case, the people involved in the case, or its general subject matter. You must keep your mind open and free of outside information. Only in this way will you be able to decide the case fairly based solely on the evidence and my instructions on the law.438

Criminal Instructions Washingtonâ&#x20AC;&#x2122;s criminal instruction on this point was last updated in 2008, and does not include the sentence present in the civil instructions about phones and electronic devices. It is essential to a fair trial that everything you learn about this case comes to you in this courtroom, and only in this courtroom. You must not allow yourself to be exposed to any outside information about this case. Do not permit anyone to discuss or comment about it in your presence. You must 437. 6 Wash. Prac., Wash. Pattern Jury Instr. Civ. [WPI] 1.01 (5th ed. rev. 2010), available via http:// government.westlaw.com/linkedslice/default.asp?SP=wciji-1000. 438. WPI 6.02 (2010), available via http://government.westlaw.com/linkedslice/default.asp?SP=wciji-1000.

400

Volume 1, Issue 3


Jury Instructions for the Modern Age keep your mind free of outside influences so that your decision will be based entirely on the evidence presented during the trial and on my instructions to you about the law. Until you are dismissed at the end of this trial, you must avoid outside sources such as newspapers, magazines, the internet, or radio or television broadcasts which may discuss this case or issues involved in this trial. By giving this instruction I do not mean to suggest that this particular case is newsworthy; I give this instruction in every case. During the trial, do not try to determine on your own what the law is. Do not seek out any evidence on your own. Do not consult any reference materials, such as dictionaries and the like. Do not inspect the scene of any event involved in this case. If your ordinary travel will result in passing or seeing the location of any event involved in this case, do not stop or try to investigate. Throughout the trial, you must maintain an open mind. You must not form any firm and fixed opinion about any issue in the case until the entire case has been submitted to you for deliberation. As jurors, you are officers of this court. As such, you must not let your emotions overcome your rational thought process. You must reach your decision based on the facts proved to you and on the law given to you, not on sympathy, prejudice, or personal preference. To assure that all parties receive a fair trial, you must act impartially with an earnest desire to reach a just and proper verdict. To accomplish a fair trial takes work, commitment, and cooperation. A fair trial is possible only with a serious and continuous effort by each one of us. Thank you for your willingness to serve this court and our system of justice.439

The admonition against accessing outside information is repeated in the pre-recess instruction. During this recess, and every other recess, do not discuss this case among yourselves or with anyone else, including your family and friends. Do not allow anyone to discuss the case with you or within your hearing. Do not read any newspaper or other written account, watch any televised account, listen to any radio program, or consult any other outside sources, including the internet, about this case or its general subject matter. You must keep your mind open and free of outside information. Only in this way will you be able to decide the case fairly based solely on the evidence and my instructions on the law.440

Other In accordance with the Supreme Court’s recommendation that jurors be warned against independent research as soon as possible, the juror’s guide given to all jurors in the state at the start of jury duty includes the following language: Some do’s and don’ts During trial: 6. DON’T talk about the case, or issues raised by the case with anyone-- including other jurors--while the trial is going on, and DON’T let others talk about the case in your presence, even family members. If someone insists on talking to you or another juror about the case, please report the matter to a court employee. These rules are designed to help you keep an open mind during the trial. 7. DON’T talk to the lawyers, parties, or witnesses about anything. This will avoid the impression that something unfair is going on. 8. DON’T try to uncover evidence on your own. Never, for example, go to the scene of an event that was part of the case you are hearing. You must decide the case only on the basis of evidence admitted in court. 439. 11 Wash. Prac., Pattern Jury Instr. Crim. [WPIC] 1.01 (3d ed. 2008), available via http://government.westlaw.com/linkedslice/default.asp?SP=wcrji-1000. 440. WPIC 4.61 (2008), available via http://government.westlaw.com/linkedslice/default. asp?SP=wcrji-1000. Reynolds Courts & Media Law Journal

401


Jury Instructions for the Modern Age 9. DON’T let yourself get information about the case from the news media or any other outside source. Even if news reports are accurate and complete, they cannot substitute for your own impressions about the case. If you accidentally hear outside information about the case during trial, tell a member of the court staff in private.441

Cases

In State v. Boling,442 the Washington Court of Appeals affirmed a trial court’s grant of a new trial in a manslaughter case in which a juror did Internet research on alcohol poisoning as a cause of death, when the medical examiner testified that the cause of death was a brain injury (subdural hematoma) resulting from blunt force trauma to the head. Here, the [trial] court was less interested in whether one or more jurors voted to convict for reasons outside the evidence and the law, than in whether that possibility could be ruled out. The court did not order a new trial because a particular juror engaged in a particular thought process. Rather, the juror’s post-trial statements established that the evidence of alcohol toxicity could have been misused. The jury might well have speculated that this was the cause of death but that Mr. Boling was nonetheless also responsible for this cause.443

While the judge in a 2010 murder case was outraged that a juror had tweeted about the trial, he was dissuaded by the prosecution and defense attorneys from removing the juror because only one alternate would have remained. “We’ve been doing this for 250 years now,” the judge said. “I can tell you it works when we do it this way. It fails when we don’t.”444 The case ended in a mistrial anyway, due to a hung jury.445

West Virginia – Civil:Archaic;  Criminal: Modern In 2000, the West Virginia Supreme Court of Appeals accepted drafts of proposed model jury instructions for civil and criminal trials for “a six-month comment and working period.”446 The instructions were posted on the court’s website and remained there, without changes, until 2009, when they were removed “pending review and revision.”447 Meanwhile in a 2010 ruling the court called for trial judges to instruct jurors regarding use of the Internet during trial, citing with approval the rule proposed by the Administrative Office of the U.S. Courts.448

441. Super. Ct. Judges’ Ass’n. & Dist. & Muni. Ct. Judges’ Ass’n. of the State of Wash., Juror’s Guide, published in 6 Wash. Prac., Wash. Pattern Jury Instr. Civ., Appendix A (5th ed. rev. 2010). 442. 131 Wash. App. 329, 127 P.3d 740 (Wash. Ct. App., Div. 3 2006) , rev. denied, 158 Wash. 2d 1011, 145 P.3d 1214 (2006) (table). 443. Id. at 333, 127 P.3d at 742. 444. Levi Pulkkinen, Judge to juror: Stop tweeting about trial, Seattle 911 — A Police and Crime Blog, Seattle Post-Intelligencer, Nov. 17, 2010, http://blog.seattlepi.com/seattle911/2010/11/17/judgeto-juror-stop-tweeting-about-trial/. 445. Levi Pulkkinen, Mistrial declared in cold-case slaying, Seattle 911 — A Police and Crime Blog, Seattle Post-Intelligencer, Dec. 22, 2010, http://blog.seattlepi.com/seattle911/2010/12/22/mistrialdeclared-in-cold-case-slaying/. 446. In re Proposed Model Jury Instructions, No. _____ (W. Va. Dec. 13, 2000), available at http://web. archive.org/web/20070205092710/ http://www.state.wv.us/wvsca/jury/order.htm. 447. James R. Elkins, West Virginia Homicide Jury Instructions Project: Revised Homicide Jury Instructions for West Virginia, n.d. [2009?], http://myweb.wvnet.edu/~jelkins/adcrimlaw. 448. State v. Dellinger, 225 W. Va. 736, 743, n.11, 696 S.E.2d 38, 45 n.11 (2010). For discussion of this case, see p. 404, infra. For discussion of the suggested federal rule, see p. 311, supra.

402

Volume 1, Issue 3


Jury Instructions for the Modern Age

Civil Instructions The proposed model civil instructions included only general discussion of what jurors can consider as evidence, without any reference to outside materials. As individuals you may believe that certain facts existed, but as jurors sworn to try this case and to render a true verdict on the law and the evidence, you can act only upon the evidence which has been properly introduced to you at this trial. You cannot speculate as to what may have happened in the absence of evidence on a given point.449 *** You are to determine the facts of this case from the evidence alone. The “evidence” in the case always consists of the sworn testimony of all the witnesses, whether the witness appeared in person or by deposition regardless of who may have called the witness; and all exhibits received in evidence, regardless of who may have produced them. Accordingly, during your deliberations you should carefully consider the testimony of each and every witness and all exhibits.450

Criminal Instructions The only instruction of the proposed model criminal instructions that did not deal with the elements of criminal offenses was a series of instructions to be delivered to the jury immediately prior to deliberations. These instructions only mentioned the evidence that jurors could use to reach a verdict, and did not address any specific sources of information. The evidence in this case consists of the testimony of witnesses who have appeared before you and testified and the exhibits which have been introduced in evidence and which have been shown to you.451 … … The law permits nothing but legal evidence presented before the jury to be considered in support of any charge against the accused.452

Besides the proposed criminal instructions, West Virginia Public Defender Services has compiled a set of West Virginia criminal jury instructions. The latest edition of these instructions, compiled in 2003, provide as follows: 2.11 NO DISCUSSION You must not discuss this case among yourselves at any time either here in the courtroom or beyond the courthouse. You must wait until the trial is concluded and you have been asked to retire to your jury room to consider your verdict. 2.12 FORM NO OPINION Do not make up your mind or form any opinion as to the guilt or innocence of the defendant until the trial is concluded and you have heard all of the evidence, the instructions of law and the argument of counsel. This defendant comes before you presumed to be innocent, with a clean slate, and you must keep that presumption throughout this trial.

449. Proposed Jury Instr. for Civ. Trials, Instructions on the Charge to the Jury (Civil) 1.2, Duty to Follow Instructions (W.Va. 2000), available at http://web.archive.org/ web/20070301083027/ http://www.state.wv.us/wvsca/jury/civilchg.htm. 450. Proposed Jury Instr. for Civ. Trials, Instructions on the Charge to the Jury (Civil) 1.5, Consideration of the Evidence (W.Va. 2000), available at http://web.archive.org/ web/20070301083027/ http://www.state.wv.us/wvsca/jury/civilchg.htm. 451. Proposed Jury Instr. for Crim. Trials, Instructions on the Charge to the Jury (Crim.), ¶ 8 (W.Va. 2000), available at http://web.archive.org/web/20070301083056/ http://www. state.wv.us/wvsca/jury/charge.htm. 452. Id., ¶ 24. Reynolds Courts & Media Law Journal

403


Jury Instructions for the Modern Age 2.13 AVOID OUTSIDE DISCUSSION You are not to discuss this case with anyone other than the other members of this jury during deliberations. Do not even discuss this case with members of your own family or your friends. 2.14 NO INVESTIGATION Do not make any kind of a private investigation, do not conduct any experiments and do not do any research. You may only consider the evidence that is introduced in this case. 2.15 NO MEDIA Do not read any newspaper article or story or listen to any news coverage or watch any TV coverage that deals with this trial.453

Other The West Virginia court’s handbook for jurors also gives a statement on what is evidence: Rules of evidence have been developed over the years to insure that trials are fair and orderly, and the judge acts as a gatekeeper for the evidence that comes into court. Insofar as the jury is concerned, the evidence is only that which the judge permits the jury to consider. For instance, statements and arguments of the lawyers are not evidence, and neither is testimony that the jury has heard, but which the judge has ordered stricken from the record.454

The manual also gives a list of “dos and don’ts” regarding juror exposure to coverage of and information about cases. There are certain rules that a juror should follow throughout the trial in order to be fair to all sides: Inspecting the Scene: The case on trial may involve a certain place or thing, such as the scene of an accident, a particular business place, the operation of a traffic light or the like. If it is necessary and proper for the jury to make an inspection of the place or thing, the judge will order that the entire jury do so, with the judge and the lawyers present. It is improper for any juror to make an inspection unless ordered by the court. An unauthorized inspection by a juror might force a retrial of the case. Discussing the Case: During or before the trial, jurors should not talk about the case with each other, with other persons, or allow other people to talk about it in their presence. If anyone insists upon talking about the case after repeated attempts to silence them, the juror should report the matter to the judge at the first opportunity. News Accounts: To ensure that jurors keep an open mind until all the evidence, arguments and the instructions of the court have been heard, they should not watch television accounts, listen to radio broadcasts, or read newspaper articles which may occur during the trial. Such sources may give a biased or unbalanced version of the case. Talking With Parties or Lawyers: Jurors should not talk with any of the parties, witnesses or lawyers during the trial. It may give the appearance that something unfair is happening.455

Cases In 2007, the West Virginia Supreme Court of Appeals reversed a sexual abuse conviction in which two jurors had accessed the MySpace page of one of the teenage victims, and that one of the jurors had discussed the contents of the page with the juror’s own daughter, who knew the other victim.456 But the court was even more concerned about other juror misconduct. 453. W. Va. Crim. Research Ctr., W. Va. Crim. J. Instrs. 10-11 (6th ed. 2003), available at http://www. wvpds.org/Jury%20Instructions/Jury%20Instruction%206.pdf. 454. Admin. Office of W. Va. Sup. Ct. of Appeals, Jury Duty: A Handbook for Trial Jurors, available at http://www.state.wv.us/wvsca/juryinfo/juryhdbk.htm. 455. Id. 456. State v. Cecil, 221 W.Va. 495, 504, 655 S.E.2d 517, 526 (W. Va. 2007). In addition, a third juror, who was

404

Volume 1, Issue 3


Jury Instructions for the Modern Age The independent investigation by jurors in this case concerning the website discussed during the appellant’s trial constitutes misconduct extrinsic to the jury’s deliberative process. Upon review of the record, we conclude that if this were the only misconduct at issue, we would be hesitant to find that it was sufficiently prejudicial to warrant setting aside the verdict. It appears that public access to the website information specifically maintained by K.J. was restricted or removed prior to trial and, therefore, could not have been viewed by these jurors. The fact that one of the jurors may have discussed the website with her daughter who knew S.D. and her family is more troubling. However, we are most concerned with the fact that one of the jurors may have misled the jury with regard to the weight to be given to the testimony of the witnesses By advising the other jurors that the testimony of the children had to be given greater weight than that of the appellant, the juror in question directly contradicted the circuit court’s instructions. In effect, this juror, who worked for the DHHR, told other members of the jury that an incorrect legal standard should be applied to the testimony of the alleged victims in this case.457

Based on the totality of circumstances in the case, the court concluded that the conviction had to be overturned. Having carefully reviewed the record, we conclude that the cumulative effect of each of the instances of juror misconduct discussed above made it impossible for the appellant to receive a fair trial. We are mindful that the independent investigation conducted by two of the jurors did not bear fruit, which arguably lessens the prejudicial effect, but notwithstanding that fact, the mere fact that members of a jury in a serious felony case conducted any extrajudicial investigation on their own is gross juror misconduct which simply cannot be permitted. Without meaningful censure, failure to properly punish such behavior would encourage or allow its repetition. Given the independent investigation by these jurors and the fact that another juror advised that the alleged victims’ testimony should be given more weight than that of the appellant contrary to the judge’s instructions and our law, we have no choice but to vacate the appellant’s convictions.458

In June 2010, the same court reversed the conviction of a deputy sheriff for misconduct regarding grants he administered and ordered a new trial, based on the fact that a juror in the case had not disclosed her online “friendships” with the defendant.459 The juror and the defendant had formerly lived in the same apartment complex, and approximately one week before trial – after the juror had been summoned for jury duty, but had not yet appeared – the juror, using a pseudonym, sent a message of encouragement to the defendant on MySpace, after which the juror invited the defendant to become her “friend” on the site, which he accepted.460 Then, during trial, the juror posted the following message to her MySpace page, visible to all her “friends” on the site: “Amber Just got home from Court and getting ready to get James and Head to church! Then back to court in the morning!”461 The juror failed to disclose this relationship during voir dire. When the trial judge subsequently asked the juror why she did not do so, the juror said, “I just didn’t feel like I really employed at the state Department of Health and Human Resources, told fellow jurors that, based on her experience, children’s testimony regarding sexual abuse was more reliable than adults’ testimony. Id. 457. Id. at 504, 655 S.E.2d at 526 (footnote omitted). 458. Id. 459. State v. Dellinger, 225 W. Va. 736, 696 S.E.2d 38 (2010). 460. Id. at 738, 696 S.E.2d at 40. The message that the juror sent to the defendant was the following: Hey, I dont [sic] know you very well But I think you could use some advice! I havent [sic] been in your shoes for a long time but I can tell ya that God has a plan for you and your life. You might not understand why you are hurting right now but when you look back on it, it will make perfect sence [sic]. I know it is hard but just remember that God is perfect and has the most perfect plan for your life. Talk soon! 461. Id. Reynolds Courts & Media Law Journal

405


Jury Instructions for the Modern Age knew him. I didn’t know him personally.”462 In a subsequent interview, the juror explained, “[m]aybe I should have said he was on my MySpace page, but then I thought to myself, I really don’t know him, so I’m really not lying.”463 The juror’s MySpace activities were discovered after the defendant was convicted, and he filed a motion for a new trial. In denying the motion, the trial court found that the juror’s “contact with [Appellant] was minimal, and she was a fair and impartial juror.”464 But the West Virginia Supreme Court of Appeals disagreed.465 [A]s demonstrated by the facts set forth above, Juror Hyre intentionally and repeatedly failed to be forthcoming about her connections to Appellant and witnesses Frame and Slaughter, arguably, in order to improve her chances of serving on Appellant’s jury. Whatever her reasons for doing so, she cannot be considered to have been indifferent or unbiased. Accordingly, we find that the trial court abused its discretion in denying Appellant’s motion for new trial.466

In a footnote, the appeals court stated that a general instruction to jurors regarding use of social media may be prudent: [W]e also believe some cautionary words are warranted concerning the prominent presence of the internet and routine use of and dependence upon various technologies by everyday Americans called to jury service.467

As an example, the court cited the instruction proposed by the U.S. Judicial Conference.468 But, as noted above, West Virginia’s jury instructions – to the extent that they exist – currently do not contain such a provision.

Wisconsin – Civil: Modern;  Criminal: Modern Civil Instructions After Wisconsin’s criminal jury instructions were revised to extensively detail limitations on jurors’ use of electronic devices and resources in 2010,469 the Wisconsin Civil Jury Instructions Committee added an extensive explanation to the state’s civil jury instructions regarding electronic research and communications by jurors during trial. Before the trial begins, there are certain instructions you should have to better understand your functions as a juror and how you should conduct yourself during the trial. Your duty is to decide the case based only on the evidence presented at trial and the law given to you by the court. Anything you may see or hear outside the courtroom is not evidence. Do not let any personal feelings about race, religion, national origin, sex, or age affect your consideration of the evidence. 462. Id. at 739, 696 S.E.2d at 41. 463. Ryan Flinn, Facebook Is Tool for Trial Lawyers Scouring Juror Profiles to Unearth Bias, Bloomberg, Mar. 30, 2011, http://www.bloomberg.com/news/2011-03-31/trial-lawyers-scour-jury-members-profiles-on-facebook-twitter.html. 464. Dellinger at 739, 696 S.E.2d at 41. 465. The appeals court did not disagree with the trial court regarding the juror’s Facebook comment. “Though this Court does not condone any communication about a case by a sitting juror, we agree with the trial court’s apparent finding that Juror Hyre’s posting was benign in nature. We believe that, standing alone, it was not sufficient to find that she engaged in juror misconduct.” Id. at 743, n.11, 696 S.E.2d at 45 n.11. 466. Id. at 742-43, 696 S.E.2d at 44-45. 467. Id. at 743, n.11, 696 S.E.2d at 45 n.11. 468. U.S. Jud. Conf., Comm. on Ct. Admin. & Case Mgmt., Prop. Model Jury Instr., supra note 29. 469. See p. 311, infra.

406

Volume 1, Issue 3


Jury Instructions for the Modern Age In fairness to the parties, keep an open mind during the trial. Do not begin your deliberations and discussion of the case until all the evidence is presented and I have instructed you on the law. Do not discuss this case among yourselves or with anyone else until your final deliberations in the jury room. You will then be in a position to intelligently and fairly exchange your views with other jurors. CONDUCT We will stop, or “recess,” from time to time during the trial. You may be excused from the courtroom when it is necessary for me to hear legal arguments from the lawyers. If you come in contact with the parties, lawyers (interpreters) or witnesses do not speak with them. For their part, the parties, lawyers, (interpreters) and witnesses will not contact or speak with the jurors. Do not listen to any conversation about this case. Do not research any information that you personally think might be helpful to you in understanding the issues presented. Do not investigate this case on your own or visit the scene. Do not read any newspaper reports or listen to any news reports on radio or television about this trial. Do not consult dictionaries, computers, websites or other reference materials for additional information. Do not seek information regarding the public records of any party or witness in this case. Any information you obtain outside the courtroom could be misleading, inaccurate, or incomplete. Relying on this information is unfair because the parties would not have the opportunity to refute, explain, or correct it. Do not communicate with anyone about this trial or your experience as a juror while you are serving on this jury” Do not use a computer, cell phone or other electronic device with communication capabilities to share any information about this case” For example, do not communicate by blog, e-mail, text message, Twitter, Facebook, other social networking sites, or in any other way, on or off the computer. Do not permit anyone to communicate with you, and if anyone does so despite your telling them not to, you should report that to me. I appreciate that it is tempting when you go home in the evening to discuss this case with another member of your household, but you may not do so” This case must be decided by you the jurors, based on the evidence presented in the courtroom. People not serving on this jury have not heard the evidence, and it is improper for them to influence your deliberations and decision in this case. After this trial is completed, you are free to communicate with anyone in any manner. These rules are intended to assure that jurors remain impartial throughout the trial. If any juror has reason to believe that another juror has violated these rules, you should report that to me. If jurors do not comply with these rules, it could result in a new trial involving additional time and significant expense to the parties and the taxpayers.470

The instruction also reminds jurors that “you are to decide the case solely on the evidence offered and received at trial,” and that “[a]nything you may have seen or heard outside the courtroom is not evidence.”471

Criminal Instructions In 2009, Wisconsin’s Criminal Jury Instructions Committee revised its model jury instructions with language very similar to the revised civil instruction. Before the trial begins, there are certain instructions you should have to better understand your functions as a juror and how you should conduct yourself during the trial. Your duty is to decide the case based only on the evidence presented at trial and the law given to you by the court. Anything you may see or hear outside the courtroom is not evidence. Do not let any personal feelings about race, religion, national origin, sex, or age affect your consideration of the evidence. Do not begin your deliberations and discussion of the case until all the evidence is presented and I have instructed you on the law. Do not discuss this case among yourselves or with anyone else until your final deliberations in the jury room.

470. Wis. Jury Instr. - Civ. [WISJI-CIVIL] No. 50, pp. 1-2 (2011). 471. Id., p. 4. Reynolds Courts & Media Law Journal

407


Jury Instructions for the Modern Age We will stop, or “recess,” from time to time during the trial. You may be excused from the courtroom when it is necessary for me to hear legal arguments from the lawyers. If you come in contact with the parties, lawyers, (interpreters) or witnesses do not speak with them. For their part, the parties, lawyers, (interpreters) and witnesses will not contact or speak with the jurors. Do not listen to any conversation about this case. Do not research any information that you personally think might be helpful to you in understanding the issues presented. Do not investigate this case on your own or visit the scene. Do not read any newspaper reports or listen to any news reports on radio or television about this trial. Do not consult dictionaries, computers, web sites or other reference materials for additional information. Do not seek information regarding the public records of any party or witness in this case. Any information you obtain outside the courtroom could be misleading, inaccurate, or incomplete. Relying on this information is unfair because the parties would not have the opportunity to refute, explain, or correct it. Do not communicate with anyone about this trial or your experience as a juror while you are serving on this jury. Do not use a computer, cell phone, or other electronic device with communication capabilities to share any information about this case. For example, do not communicate by blog, e-mail, text message, twitter, or in any other way, on or off the computer. Do not permit anyone to communicate with you, and if anyone does so despite your telling them not to, you should report that to me. I appreciate that it is tempting when you go home in the evening to discuss this case with another member of your household, but you may not do so. This case must be decided by you the jurors, based on the evidence presented in the courtroom. People not serving on this jury have not heard the evidence, and it is improper for them to influence your deliberations and decision in this case. After this trial is completed, you are free to communicate with anyone in any manner. These rules are intended to assure that jurors remain impartial throughout the trial. If any juror has reason to believe that another juror has violated these rules, you should report that to me. If jurors do not comply with these rules, it could result in a new trial involving additional time and significant expense to the parties and the taxpayers.472

The committee stated that its goal in adopting these revisions was “to integrate those cautions [regarding use of electronic devices and electronic communications] into the broader concerns addressed by the instruction: deciding the case only on the basis of evidence introduced at trial, not communicating with others about the case while it is pending, and not making up one’s mind until all the evidence is in.”473

Other In addition to these changes to the jury instructions, The Wisconsin Jury Handbook provides a list of “ten rules for a juror,” including the following: 4. DO NOT DISCUSS THE CASE: During the trial, you should not talk about the case to anyone, including other jurors. Outside discussions could cause you to form conclusions before all the evidence has been presented. 5. DO NOT READ, VIEW OR LISTEN TO MEDIA ACCOUNTS: Newspaper, radio or television reports might present a biased or unbalanced view of the case. Such accounts might then influence your future evaluation of the facts of the case. 6. DO NOT TALK WITH ANYONE RELATED TO THE CASE: You should not talk at all to the lawyers, parties, witnesses, or anyone connected to the case. This might be perceived as an attempt to influence your verdict.

472. Wis. J. Instr. — Crim. [WIS JI-CRIMINAL] No. 50 (2011), pp. 1-2, available at http://www.postcrescent.com/assets/pdf/U014968718.PDF. 473. Id., Comment (p. 5).

408

Volume 1, Issue 3


Jury Instructions for the Modern Age 7. DO NOT INVESTIGATE THE CASE ON YOUR OWN: If the Judge determines that an inspection of the scene or premises involved in a case is appropriate, the Judge will arrange for the jury as a whole to make this inspection, accompanied by the court officials and parties involved.474

Wyoming – Civil: Modern;  Criminal: Archaic Civil Instructions Wyoming’s jury instructions for a civil trial have been updated to account for the Internet and social media, and mention a number of specific sites and services. The instruction prior to opening statements is the following: Until the case is submitted to you for decision, do not discuss it, even among yourselves, and do not permit others to discuss it in your presence. Should anyone try to discuss the case with you, please tell a bailiff. Second, do not talk to the attorneys, parties, or witnesses at all. Further, you shall not discuss this case with anyone, even your fellow jurors, family, and friends until you retire to deliberate. These restrictions apply not only in the courtroom, but in all places and at all times, because such a conversation, even if innocent and unrelated to this case, could affect the outcome of the trial. You must not use cell phones, Blackberries, the Internet, and other tools of technology, [including but not limited to iPad, iPhone, text messaging, Twitter, any blog or website, any Internet chat room, or any other social networking websites, including Facebook, My Space, LinkedIn, and YouTube] to communicate with anyone about this case. After you retire to deliberate, you may begin discussing the case with your fellow jurors, but you cannot communicate about the case with anyone else until you have returned a verdict and the case is at an end. Third, avoid all news accounts of the trial in any media form. Fourth, you must confine yourself to the evidence presented within the four walls of this courtroom so that the participants receive a fair trial. Do not conduct your own investigation. This means that during the trial you must not conduct any independent research about this case, the matters in the case, and the individuals or corporations involved in the case. In other words, you shall not consult dictionaries or reference materials; search the Internet, including Google, Bing, other websites, search engines, or blogs; or use any other electronic tools to obtain information about this case or to help you decide the case. Not following these instructions may make a new trial necessary. Finally, if you experience a personal problem, or are in doubt about your rights andduties, inform a bailiff who will tell me. I have no doubt of your integrity. I tell you about these rules only to prevent unintentional acts that might require us to try this case again. Now I will turn to your role in the trial process. … I want to return now to your fact-finding duties. You must determine the facts only from the evidence produced here in the courtroom. To do that, you may consider whatever I allow to be presented to you, for example: 1. the testimony of witnesses; 2. documents, photographs, charts, and other papers or things; 3. video or audio tape recordings; and 4. in-court demonstrations. You must not decide this case upon information that you or other jurors may have received outside of the trial from any source, including but not limited, to radio, television, newspaper, Internet, or third parties. However, in evaluating the evidence presented, you may rely upon your common sense and the general insights you have gained about human affairs as a result of your life experiences.475

474. Wis. Rec’ds. Mgmt. Comm., Wis. Jury Handbook, n.d. [2011?], at 12 http://www.wicourts.gov/services/juror/docs/handbook.pdf. 475. Wyo. Civ. Patt. J. Inst. 1.02 (2009). Reynolds Courts & Media Law Journal

409


Jury Instructions for the Modern Age A note to this instruction recommends that “this instruction be given in every case,” and that “[t]he bracketed language regarding technology should be modified to be consistent with changes in technology and social media.”476 The note also recommends that a similar instruction be given immediately prior to deliberations, and suggests the following language: During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the Internet, any Internet service, or any text or instant messaging service; or any Internet chat room, blog, or website such as Facebook, My Space, Linkedln, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.477

Criminal Instructions Wyoming’s criminal jury instructions address juror access to extrinsic information in the context of a recess instruction, but have not been updated to include the Internet and social media. Second, do not discuss the case either among yourselves or with anyone else during the course of the trial. [this includes your family, other jurors, persons involved in the trial, and any other persons.] Do not permit any third person to discuss the case in your presence and, if anyone does so despite your telling him or her not to, please report that fact to the bailiff as soon as you are able. Third, though it is a normal human tendency to converse with people with whom one is thrown in contact, please do not converse, whether in or out of the courtroom, with any of the parties or their attorneys or any witness. By this I mean not only do not converse about the case, but do not talk at all, even to pass the time of day. In no other way can all parties be assured of the absolute impartiality they are entitled to expect from you as jurors. Each of the lawyers already knows that no communication is permitted between counsel and jurors. Fourth, do not read about the case in the newspapers, or listen to radio or watch television broadcasts about the trial. If a newspaper headline or news broadcast about the case catches your eye or ear, do not examine the article or watch or listen to the broadcast any further. The person who wrote or is reporting the story may not have listened to all of the testimony, may emphasize an unimportant point, and simply may be wrong. You must base your verdict solely upon the evidence received by the Court during the trial.478

A note to this instruction adds that “It is also appropriate to direct jurors not to engage in personal research, such as going to the scene of the alleged crime or looking up facts or meanings of words in dictionaries or other sources,” but does not provide the language for such an instruction.479 A short form instruction for recesses includes a reminder of this admonition. During this recess and all other recesses, you must not discuss this case with anyone. This includes your family, other jurors, and anyone involved in the trial. If anyone attempts in any way to talk to you about this trial during a recess, it is your obligation to tell the bailiff immediately. Do not watch or listen to any news reports concerning this trial on television or on radio and do not read any news accounts of this trial in a newspaper. Do not speak at all with any of the parties, the witnesses or the attorneys.

476. Wyo. Civ. Patt. J. Inst. 1.02, 2010 Note (2009). 477. Id. 478. Wyo. Crim. Patt. J. Inst. 1.09A (2009). 479. Id., Note.

410

Volume 1, Issue 3


Jury Instructions for the Modern Age You are required to keep an open mind until you have heard all of the evidence in this case, the closing arguments of counsel, and the final instructions of law provided by the Court.480

Other Sources Besides the official and unofficial instructions for each state, other organizations have responded to the challenge posed to the courts by juror use of the Internet and social media by drafting jury instructions to be used to dissuade jurors from accessing these sources during their jury service.

American College of Trial Lawyers The American College of Trial Lawyers approved its â&#x20AC;&#x153;Jury Instructions Cautioning Against Use of the Internet and Social Networkingâ&#x20AC;? in September 2010. The instructions include a variety of lengthy instructions on the issue for various stages of trial.481 For example, the College has formulated an instruction that is intended to be included in the summons for jury service. â&#x20AC;Ś [I]n order to assist the court in providing the litigants with a fair trial, it is important that you refrain from conducting any research which might reveal any information about any case pending before the court, or any of the parties involved in any case. Therefore, you should avoid any attempts to learn which cases may be called for trial during your jury service, or anything about the parties, lawyers or issues involved in those cases. Even research on sites such as Google, Bing, Yahoo, Wikipedia, Facebook or blogs, which may seem completely harmless, may lead you to information which is incomplete, inaccurate, or otherwise inappropriate for your consideration as a prospective juror. The fair resolution of disputes in our system requires that jurors make decisions based on information presented by the parties at trial, rather than on information that has not been subjected to scrutiny for reliability and relevance.482

The instruction for empanelled jurors is particularly detailed: Now that you have been chosen as jurors for this trial, you are required to decide this case based solely on the evidence and the exhibits that you see and hear in this courtroom. At the end of the case, I will give you instructions about the law that you must apply, and you will be asked to use that law, together with the evidence you have heard, to reach a verdict. In order for your verdict to be fair, you must not be exposed to any other information about the case, the law, or any of the issues involved in this trial during the course of your jury duty. This is very important, and so I am taking the time to give you some very detailed explanations about what you should do and not do during your time as jurors. First, you must not try to get information from any source other than what you see and hear in this courtroom. This means you may not speak to anyone, including your family or friends. You may not use any printed or electronic sources to get information about this case or the issues involved. This includes the internet, reference books or dictionaries, newspapers, magazines, television, radio, computers, Blackberries, iPhones, Smartphones, PDAs, or any other electronic device. You may not do any personal investigation, including visiting any of the places involved in this case, using Internet maps or Google Earth, talking to any possible witnesses, or creating your own demonstrations or reenactments of the events which are the subject of this case. Second, you must not communicate with anyone about this case or your jury service, and you must not allow anyone to communicate with you. In particular, you may not communicate about the case via emails, text messages, tweets, blogs, chat rooms, comments or other postings, Facebook, MySpace, LinkedIn, or any other websites. This applies to communicating with your fellow jurors until I give 480. Wyo. Crim. Patt. J. Inst. 1.09B (2009). 481. See Amer. Coll. of Trial Lawyers, Jury Instrs. Cautioning Against Use of the Internet & Social Networking, Sept. 2010, http://www.actl.com/AM/Template.cfm?Section=Advanced_ Search&content=20101&template=/cm/contentdisplay.cfm&contentfileid=1257. 482. Id. at 1. Reynolds Courts & Media Law Journal

411


Jury Instructions for the Modern Age you the case for deliberation, and it applies to communicating with everyone else including your family members, your employer, and the people involved in the trial, although you may notify your family and your employer that you have been seated as a juror in the case. But, if you are asked or approached in any way about your jury service or anything about this case, you must respond that you have been ordered not to discuss the matter and to report the contact to the court. The court recognizes that these rules and restrictions may affect activities that you would consider to be normal and harmless, and I assure you that I am very much aware that I am asking you to refrain from activities that may be very common and very important in your daily lives. However, the law requires these restrictions to ensure the parties have a fair trial based on the evidence that each party has had an opportunity to address. If one or more of you were to get additional information from an outside source, that information might be inaccurate or incomplete, or for some other reason not applicable to this case, and the parties would not have a chance to explain or contradict that information because they wouldn’t know about it. That’s why it is so important that you base your verdict only on information you receive in this courtroom. Some of you may have heard about trials where the jurors are not permitted to go home at night, or were sequestered for the entire length of the trial. For a variety of reasons, this is something we rarely do anymore. It is far more of an imposition on your lives than the court wishes to make. However, it was effective in keeping jurors away from information that might affect the fairness of the trial—that was the entire purpose. You must not engage in any activity, or be exposed to any information, that might unfairly affect the outcome of this case. Any juror who violates these restrictions I have explained to you jeopardizes the fairness of these proceedings, and a mistrial could result that would require the entire trial process to start over. As you can imagine, a mistrial is a tremendous expense and inconvenience to the parties, the court and the taxpayers. If any juror is exposed to any outside information, or has any difficulty whatsoever in following these instructions, please notify the court immediately. If any juror becomes aware that one of your fellow jurors has done something that violates these instructions, you are obligated to report that to the court as well. If anyone tries to contact you about the case, either directly or indirectly, or sends you any information about the case, please report this promptly as well. These restrictions must remain in effect throughout this trial. Once the trial is over, you may resume your normal activities. At that point, you will be free to read or research anything you wish. You will be able to speak—or choose not to speak—about the trial to anyone you wish. You may write, or post, or tweet about the case if you choose to do so. The only limitation is that you must wait until after the verdict, when you have been discharged from your jury service.483

The group also created a suggested message that jurors can send to friends and family, asking them not to send them any information about the case via e-mail, as well as a pledge for jurors to sign promising to refrain from using social media during trial. Suggested Message for Impaneled Jurors to Send to Family and Friends I am sending this message to you as instructed by Judge        . I am now a sworn juror in a trial. I am under a court order not to read or discuss anything having to do with the trial, the parties or lawyers involved, or anything else concerning my jury service. Please do not send me any information about the case or my jury duty, and please do not ask me any questions or make any comments about the case or my jury duty. I will be following these rules for the length of the trial, which is expected to last approximately     . I will send another note when my jury duty is completed and I am no required to follow the court order.484

483. Id. at 2-3. 484. Id. at 5.

412

Volume 1, Issue 3


Jury Instructions for the Modern Age Suggested Statement of Compliance for Jurors to Sign I agree that during the duration of the trial in             , I will not conduct any independent research into any of the issues or parties involved in this trial. I will not communicate with anyone about the issues or parties in this trial, and I will not permit anyone to communicate with me. I further agree that I will report any violations of the court’s instructions immediately.                       JUROR No     485

“When Worlds Collide” In his article in the last issue of this journal, retired Maryland Circuit Court Judge Dennis Sweeney examined the problem of “digital natives” – who were raised in the Internet age, and have never known another way of acquiring information or communicating with others – serving as jurors, and the implications for the courts. He proposed jury admonitions to explain to these people why they must refrain from their normal information gathering and sharing activities while serving as jurors. Model Admonition (for delivery to venire at earliest possible point post-summons) You as jurors must decide this case based solely on the evidence presented in this courtroom. The evidence you will consider for this case has been reviewed by the parties and the court, and is the evidence that is relevant to this case and the issues you must decide. You must not conduct on your own any research or investigation about the case or the individuals involved in it. I mean “research” in the broadest possible meaning of the word. That is, you cannot use a public library, a dictionary, or a simple Google search to clarify or obtain, for example, even something as simple as the definition of a word you do not understand. Any information you obtain outside the courtroom could be misleading, inaccurate, or incomplete. Relying on this information is unfair because the parties would not have the opportunity to refute, explain or correct it. You may not consult any dictionaries or reference materials. You should not search the Internet, web sites, social media sites, blogs, or any other source for information about the case or the persons involved in the case. Places or locations may be mentioned, but you should not visit any place or location related to the case. You should also not seek any information about the place or location on the Internet or through web sites such as MapQuest or Goggle maps. Until you retire to deliberate and decide this case, you may not discuss this case with anyone, even your fellow jurors. You should not express any opinion about the case or talk about the case with anyone, including courtroom personnel, spectators or anyone participating in the trial. Most, if not all, of you use cell phones, Blackberries, smart phones or computers to communicate with family, friends, co-workers or others. During this trial, you cannot communicate to anyone any information about this case, or your opinions or views about it or the individuals participating in it by any method or means. You may also be involved in social media or networking sites such as Facebook, MySpace, LinkedIn, YouTube or Twitter, and be accustomed to frequently communicating your views, observations or opinions on these sites. During this trial, you must not use these sites to communicate anything about this case or the individuals participating in it.

485. Id. at 6. Reynolds Courts & Media Law Journal

413


Jury Instructions for the Modern Age Model Short Form Admonition (for delivery prior to recesses or breaks) You will recall that previously I instructed you in great detail that you must decide this case solely on the evidence presented in this courtroom. Because we are about to take a break, I am now reminding you of that warning, and I want you to once again to fully commit to your fellow jurors, to the parties in this case and to the court, that you will not use cell phones, smart phones, Blackberries, iPhones, Facebook, text messaging, Google, or any other form of communication to send or receive messages about this case, even with close friends or family. Final Instruction (for delivery prior to deliberations) During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You must decide this case based only on the evidence that you and your fellow jurors heard together in the courtroom. You must not consider any other information. You must not do any outside research or investigation on your own. Do not use any books, electronic devices, computers or phones to do research on the internet or otherwise about this case even if you believe that the information would be helpful to you. While you are deliberating about the case you must not have in your possession any computers, cellphones, or other electronic communication devices and you must not communicate with anyone outside the jury room. We have collected these devices from you and will hold them under custody of the court. If there are breaks in deliberations, I may allow you to communicate on your electronic device to your family or friends, but there must be no communications about the case or the deliberations that you are engaged in. If you have any questions about this instruction or the restrictions that apply to you, please send me a note and I will respond to it. If you become aware that any other juror has violated this instruction, please also let me know by a note.486

“Model Jury Instructions for the Digital Age” Thaddeus Hoffmeister, an Associate Professor at the University of Dayton School of Law who studies and blogs on jury issues, has created a set of jury instructions regarding social media whichthat explain to the jurors the reasoning and rationale for restrictions on their use of social media. Introduction: As you know, serving on a jury is an important and serious responsibility.  And part of that responsibility is to decide the facts of this case using only the evidence that the parties will present in this courtroom.  As I will explain further in a moment, this means that I must ask you to do something that may seem strange to you: to not discuss or do any research on this case.  I will also explain to you why this rule is necessary, and what to do if you encounter any problems with it. Communications: During this trial, do not contact anyone associated with this case. If a question arises direct it to the attention of me or my staff. Also, do not discuss this case during the trial with anyone, including any of the attorneys, parties, witnesses, your friends, or members of your family. This includes, but is not limited to, discussing your experience as a juror on this case, discussing the evidence, the lawyers, the parties, the court, your deliberations, your reactions to testimony, exhibits, or any aspect of the case or your courtroom experience. “No discussion” extends to all forms of communication, whether in person, in writing or through electronic devices or media such as: e-mail, Facebook, MySpace, Twitter, instant messaging, Blackberry messaging, I-Phones, I-Touches, Google, Yahoo, or any internet search engine or any other form of electronic communication for any purpose whatsoever, if it relates to this case.

486. Dennis Sweeney, Worlds Collide: The Digital Native Enters the Jury Box, 1 Reynolds Cts. & Media L. J. 121 (2011).

414

Volume 1, Issue 3


Jury Instructions for the Modern Age I will give you some form of this instruction every time we take a break. I do that not to insult you or because I don’t think you are paying attention, but because, in my experience, this is the hardest instruction for jurors to follow. I know of no other situation in our culture where we ask strangers to sit together watching and listening to something, then go into a little room together and not talk about the one thing they have in common that they just watched together. There are at least three reasons for this rule. The first is to help you keep an open mind. When you talk about things, you start to make decisions about them and it is extremely important that you not make any decisions about this case until you have heard all the evidence and all the rules for making your decisions, and you will not have that until the very end of the trial. The second reason is that by having conversations in groups of two or three during the trial, you will not remember to repeat all of your thoughts and observations to the rest of your fellow jurors when you deliberate at the end of the trial. The third, and most important, reason is that by discussing the case outside of the jury room you increase the likelihood that you will either be influenced by an outside third party or you will reveal information about the case to a third party. If any person tries to talk to you about this case, tell that person you cannot discuss the case because you are a juror. If that person persists, simply walk away and report the incident to me or my staff. Research: Do not perform any research or make any independent personal investigations into any facts, individuals or locations connected with this case. Do not look up or consult any dictionaries or reference materials, search the internet, websites, or blogs; or use any other electronic tools or other source to obtain information about any facts, individuals, or locations connected with this case. Do not communicate any private or special knowledge about any facts, individuals, or locations connected with this case to your fellow jurors. Do not read or listen to any news reports about this case. The law prohibits a juror from receiving evidence not properly admitted at trial. If you have a question or need additional information, contact me or my staff. I, along with the attorneys, will review every request. If the information requested is appropriate for you to receive it will be released in court. In our daily lives, we may be used to looking for information on-line and “Google” things as a matter of routine. Also, in a trial it can be very tempting for jurors to do their own research to make sure they are making the correct decision, but the moment you try to gather information about this case or the participants is the moment you contaminate the process and violate your oath as a juror. Looking for outside information is unfair because the parties do not have the opportunity to refute, explain, or correct what you discovered or relayed. The trial process works by each side knowing exactly what evidence is being considered by you and what law you are applying to the facts you find. You must resist the temptation to seek outside information for our system of justice to work as it should. Once the trial is over you may research and discuss the case as much as you wish. You may also contact anyone associated with this case. [Are there any of you who cannot or will not abide by these rules concerning communication or research with others in any way during this trial?] [Are there any of you who do not understand these instructions?]. Ramifications: If you communicate with anyone about the case or do outside research during the trial, it could lead to a mistrial, which is a tremendous expense and inconvenience to the parties, the court and taxpayers. Furthermore, you could be held in contempt of court and subject to punishment such as paying the costs associated with having a new trial. If you find that one of your fellow jurors has conducted improper communications or research or you conduct improper communications or research, you have a duty to let me or a court officer know, so that we can protect the integrity of this trial.487

487. Thaddeus Hoffmeister, Model Jury Instructions for the Digital Age, Juries blog, Feb. 28, 20011, http://juries.typepad.com/juries/2011/02/model-jury-instructions-for-the-digital-age.html. Professor Hoffmeister expands on these instructions in his forthcoming article, Google, Gadgets and Guilt: The Digital Age’s Effect on Jurors, to be published in the University of Colorado Law Review. Reynolds Courts & Media Law Journal

415


Jury Instructions for the Modern Age

416

Volume 1, Issue 3


For Further Reading Eyeing the Supreme Court’s Challenge Susanna Barber, News Cameras in the Courtroom: A Free Press – Fair Trial Debate (1987). Eugene Borgida, Kenneth G. DeBono & Lee A. Buckman, Cameras in the Courtroom: The Effects of Media Coverage on Witness Testimony and Juror Perceptions, 14 L. & Human Behavior 489 (1990). Marjorie Cohn & David Dow, Cameras in the Courtroom: Television and the Pursuit of Justice (1998). Ernest H. Short & Associates, Evaluation of California’s Experiment with Extended Media Coverage of Courts (1981). Federal Judicial Center, Coverage of Federal Civil Proceedings: An Evaluation of the Pilot Program in Six District Courts and Two Courts of Appeals (1994), available at http://www.fjc.gov/public/pdf.nsf/ lookup/elecmediacov.pdf/$file/elecmediacov.pdf. Gilbert Geis, A Lively Public Issue: Canon 35 in the Light of Recent Events, 43 A.B.A. J. 419 (May 1957). Joel Hirschhorn, Cameras in the Courtroom? No, 7:3 Barrister 7 (Spring 1980). James L. Hoyt, Courtroom Coverage: The Effects of Being Televised, 21 J. Broadcasting, 489 (1977). Alex Kozinski & Robert Johnson, Of Cameras and Courtrooms, 20 Fordham Intell. Prop. Media & Ent. L.J. 1107 (2010). William B. Monroe, Jr., The Case for Television in the Courtroom, 42 Notre Dame L. 920 (1966-67), reprinted in 21 Fed. Comm. B.J. 48 (1967). Dan Slater & Valerie P. Hans, Methodological Issues in the Evaluation of “Experiments” with Cameras in the Courts, 30 Comm. Q. 376 (1982).

Cameras in the Courts C-SPAN Timeline: Cameras in Court, http://www.c-span.org/The-Courts/ Cameras-in-The-Court-Timeline/. Richard B. Kielbowicz, The Story Behind the Adoption of the Ban on Courtroom Cameras, 63:1 Judicature 14-23 (June-July 1979). Tony Mauro, Cameras, Take 2: Judicial Conference Sets New Experiment With TV Access, BLT: The Blog of the Legal Times, Sept. 14, 2010, http://legaltimes.typepad.com/blt/2010/09/cameras-take-2-judicial-conference-sets-newexperiment-with-tv-access-.html. Tony Mauro, Restrictive Rules Announced for Federal Courts Camera Experiment, The BLT: Blog of the Legal Times, June 8, 2011, http://legaltimes. typepad.com/blt/2011/06/restrictive-rules-announced-for-federal-courts-camera-experiment.html

Reynolds Courts & Media Law Journal

417


For Further Reading (continued) Radio Television Digital News Assâ&#x20AC;&#x2122;n, Cameras in the Court: A StateBy-State Guide (2011), http://www.rtnda.org/pages/media_items/camerasin-the-court-a-state-by-state-guide55.php. U.S. Jud. Conf., Rpt. of the Proceedings of the Jud. Conf. of the U.S. (Sept. 14, 2010), at 11-12, available at http://www.uscourts.gov/FederalCourts/JudicialConference/Proceedings/Proceedings.aspx?doc=/uscourts/FederalCourts/judconf/proceedings/2010-09.pdf. U.S. Jud. Conf., Judiciary Approves Pilot Project for Cameras in District Courts (press release), Sept. 14, 2010, available at http://www.uscourts.gov/News/ NewsView/10-09-14/Judiciary_Approves_Pilot_Project_for_Cameras_in_District_Courts.aspx.

Let the Cameras Roll Tony Mauro, Roll the Cameras (or Soutersaurus Rex), Legal Times, April 18, 1996. Cong. Research Service, Televising Supreme Court and Other Federal Court Proceedings: Legislation & Issues, (Nov. 8, 2006), at 3, available at http:// www.fas.org/sgp/crs/secrecy/RL33706.pdf. Tony Mauro, The Camera-Shy Federal Courts, 12:1 Media Studies J. 60 (Winter 1998). Kenneth Jost, Cameras in the Courtroom, CQ Researcher, Jan. 14, 2011.

Jury Instructions for the Modern Age Brian Grow, As jurors go online, U.S. trials go off track, Reuters Legal, Dec. 8, 2010, http://www.reuters.com/article/2010/12/08/internet-jurorsidUSN0816547120101208. Thaddeus Hoffmeister, Model Jury Instructions for the Digital Age, Juries Blog, Feb. 28, 2001, http://juries.typepad.com/juries/2011/02/model-juryinstructions-for-the-digital-age.html. Dennis Sweeney, Worlds Collide: The Digital Native Enters the Jury Box, 1 Reynolds Cts. & Media L. J. 121 (2011). J. Alexander Tanford, The Law and Psychology of Jury Instructions, 69 Neb. L. Rev. 71 (1990). [U.S.] Judicial Conference Committee on Court Administration and Case Management, Proposed Model Jury Instructions: The Use of Electronic Technology to Conduct Research on or Communicate about a Case (December 2009), available at http://www.uscourts.gov/newsroom/2010/DIR10-018.pdf.

418

Volume 1, Issue 3


Authors Paul B. Lambert  (“Eyeing the Supreme Court’s Challenge: A Proposal to Use Eye Tracking to Determine the Effects of Television Courtroom Broadcasting”) is a lawyer at Merrion Legal in Dublin, Ireland, specializing in internet, information technology and intellectual property law; a lecturer in data protection law at the National University of Ireland, Galway; and a Ph.D. candidate at Trinity College, Dublin. He is a Community Trade Mark Attorney; Board Director of the Copyright Association of Ireland; a member of the Legal Working Group of the Irish Internet Association; and a member of the Society of Computers and Law. Paul has been researching and writing about television courtroom broadcasting issues since 1995. He has two books forthcoming: one on the full details of the distraction eye tracking issues and the eye tracking research undertaken by the author, and one on the Supreme Court challenge and the wider empirical research and issues generally. Queries or suggestions are welcome at lambertp@tcd.ie.

Tony Mauro  (“Let the Cameras Roll: Cameras in the Court and the Myth of Supreme Court Exceptionalism”) is Supreme Court correspondent for The National Law Journal and its newsletter, Supreme Court Insider. He has covered the Supreme Court since 1979, first for Gannett News Service and then for USA TODAY, and then since 2000 for The Legal Times, which merged in 2009 with The National Law Journal. He has an undergraduate degree from Rutgers University and a master’s degree from Columbia University Graduate School of Journalism. He is author of Illustrated Great Decisions of the Supreme Court, published in its second edition in 2005 by Congressional Quarterly Press. Mickey H. Osterreicher  (“Cameras in the Courts: An Update and a Look Back”) is general counsel for the National Press Photographers Association (NPPA). He has also been a still and television photojournalist for almost 40 years. As a lawyer, Mr. Osterreicher has been actively involved in the cameras in the courtroom debate. In 2010 he drafted comments for the NPPA regarding the the U.S. District Court for the Northern District of California’s revision of Civil Local Rule 77-3, regarding Photography and Public Broadcasting. He also helped draft an amicus brief in support of cameras in the courtroom in Court TV v. State of New York before the New York State Court of Appeals. He has been an adjunct lecturer in photojournalism at of the University at Buffalo and an adjunct professor in media and the law at the University at Buffalo Law School. He was also a member of the advisory panel for Cameras in the Courtroom in Erie County, New York. He graduated cum laude in 1973 from SUNY at Buffalo with a Bachelor of Science degree in Photojournalism/Photography and received his Juris Doctor, cum laude from the University of Buffalo Law School in 1998.

Eric P. Robinson  (“Jury Instructions for the Modern Age: A 50-State Survey”) is Deputy Director of the Donald W. Reynolds Center for the Courts and Media. He was previously a Staff Attorney at the Media Law Resource Center, and previously worked at the Reporters Committee for Freedom of the Press and in staff positions for federal, state and local elected officials. He has written articles for various professional and academic publications and at www.bloglawonline.com.

Reynolds Courts & Media Law Journal

419


Board of Editors Hon. William F. Dressel  has been the president of The National Judicial College since 2000. He was a lawyer in private practice in both Denver, and Fort Collins, Colorado until he was appointed a judge in Colorado’s 8th Judicial District, a postion he held for 22 years. In 1998 Dressel recieved the Justice Management Institute’s Ernest C. Friesen Award of Excellence in recognition of his vision, leadership, and sustained commitment to the achievement of excellence in the administration of justice.

Stewart Cheifet,  an assistant professor at the Donald W. Reynolds School of Journalism at the University of Nevada, Reno, pioneered the field of technology journalism with the award-winning public television series “Computer Chronicles.” He also anchored “Net Café,” and has been a commentator on technology for a variety of programs and events. He previously worked for ABC News and CBS News, and as president of PCTV, a company focused on media and technology, and CEO of WITF, a diversified broadcasting and media company. Cheifet has won numerous awards for his work, including twelve awards from the Computer Press Association.

Charles Davis  is an associate professor at the Missouri School of Journalism, where his scholarly research focuses on access to governmental information and media law. He has earned a Sunshine Award from the Society of Professional Journalists for his work in furthering freedom of information and in 2008 was named the Scripps Howard Foundation National Journalism Teacher of the Year. He previously worked for newspapers and as a national correspondent for Lafferty Publications, a Dublin-based news wire service for financial publications. Toni Locy   is the Reynolds Professor of Legal Reporting at Washington and Lee University. She spent 25 years as a journalist reporting and writing for some of the nation’s biggest and best news organizations, specializing in the coverage of federal, state, and local law enforcement, the federal trial and appellate courts, and the U.S. Supreme Court. She is currently writing a textbook on covering courts based on her experience as a reporter in Pittsburgh, Philadelphia, Boston, and Washington. Nancy B. Rapoport  is the Gordon Silver Professor at the William S. Boyd School of Law, University of Nevada, Las Vegas. She clerked for the Honorable Joseph T. Sneed on the United States Court of Appeals for the Ninth Circuit and then practiced law (primarily bankruptcy law) with Morrison & Foerster in San Francisco. She started her academic career at the Ohio State University College of Law, then became Dean and Professor of Law at the University of Nebraska College of Law. She then served as Dean and Professor of Law at the University of Houston Law Center. Among her published works are Enron and Other Corporate Fiascos: The Corporate Scandal Reader 2d, and the Law School Survival Manual: From LSAT to Bar Exam.

420

Volume 1, Issue 3


Rick Rodriguez,â&#x20AC;&#x201A; the former executive editor and senior vice president of The Sacramento Bee, joined the Walter Cronkite School at Arizona State University as the Carnegie professor, Southwest Borderlands Initiative, in March 2008. He was previously managing editor of the Bee, where he also worked as an assistant managing editor, recruiter, columnist, projects editor, editorial writer, deputy Capitol bureau chief, and reporter during a 25-year career at the newspaper. He also was a reporter at the Fresno Bee and the Salinas Californian, and was the first Latino to serve as president of the American Society of Newspaper Editors. Christina Wellsâ&#x20AC;&#x201A; is the Enoch H. Crowder Professor of Law at the University of Missouri School of Law, and has been a visiting professor at the University of Illinois College of Law and at Masaryk University and Palacky University in the Czech Republic. She joined the faculty in 1993 after having been an associate with Skadden, Arps, Slate, Meagher and Flom in Chicago and Heller, Ehrman, White and McAuliffe in Los Angeles, primarily in the area of business litigation. She received the Shook, Hardy & Bacon Research Award in 2009 for her article on the constitutionality of statutes regulating funeral protests, and also received that award in 2005.

Reynolds Courts & Media Law Journal

421


donald w. reynolds national center for

COURTS&MEDIA

A research and policy center of the Donald W. Reynolds School of Journalism, University of Nevada, Reno, affiliated with The National Judicial College


vol 1 issue 3