Page 1

Spring 2011

Reynolds Courts & Media Law Journal

Modern Media in the Courts Worlds Collide The Digital Native

Enters the Jury Box ������������������������������������Judge Dennis M. Sweeney (Ret.)

That’s What “Friend” Is For? Judges, Social Networks

and Standards for Recusal ���������������������������������������������������Genelle I. Belmas

Untangling the Web How Courts Should Respond to Juries

Using the Internet for Research ����������������������������������������������� Gareth S. Lacy

Say “Cheese!” Cameras and Bloggers in

U.S. $13.00

Wisconsin’s Courtrooms ������������������������������������������������������������ Stacy Blasiola

www.courtsandmedia.org


Spring 2011

Reynolds Courts & Media Law Journal

donald w. reynolds national center for

COURTS&MEDIA


Reynolds Courts & Media Law Journal Volume 1, Issue 2 Spring 2011

Jerome Ceppos­, Publisher Ben Holden, Editor Eric P. Robinson, Managing Editor Jim Cooper, Layout Editor Zanny Marsh, Marketing Director

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 Illustration by Stephen Reich

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 2


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


iv

Volume 1, Issue 2


Reynolds Courts & Media Law Journal Contents Modern Media in the Court . . . . . �����������������������������������������������������119 Worlds Collide: The Digital Native Enters the Jury Box Judge Dennis M. Sweeney (Ret.)�������������������������������������������������������������������121

That’s What “Friend” Is For?: Judges, Social Networks and Standards for Recusal Genelle I. Belmas�������������������������������������������������������������������������������������������� 147

Untangling The Web: How Courts Should Respond to Juries Using the Internet for Research Gareth S. Lacy���������������������������������������������������������������������� 169

Say “Cheese!”: Cameras and Bloggers in Wisconsin’s Courtrooms Stacy Blasiola�������������������������������������������������������������������������������������������������� 197 Letter from the Director. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi Letters to the Editor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii For Further Reading. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213 Authors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215 Board of Editors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216

Reynolds Courts & Media Law Journal

v


vi

Volume 1, Issue 2


(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 2


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 Jerry Ceppos—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, Ca. 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, Ca. Kelli L. Sager—Partner, Davis Wright Tremaine, LLP, Los Angeles, Ca. 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. William L. Winter—President, Winter Associates, LLC, Naples, Fla. Hon. Hiller B. Zobel—Judge, Boston, Mass. Superior Court Judge (retired)

Reynolds Courts & Media Law Journal

ix


From The National Judicial College

W

hy would anyone want to be a friend of a judge? In spite of what they do in their day jobs, judges are decent, caring and fairly intellectual human beings. But what this comes down to is does a judge have the right to have a life outside the bench? Of course, you say, a judge has the right to have friends. So why doesn’t that extend to the online world? Well, because when you have friends in life, you can discern between those people who are appropriate versus inappropriate. The Code of Judicial Conduct requires judges to put their role as a judge above their personal lives. And with in-person relationships they can screen and determine what is appropriate. But with their online ‘Friends,’ they don’t have the ability to exercise that discretion. A judge can inadvertently become a “friend” of someone who is a victim of crime, who has committed a crime, or who is in a sensitive government position. This creates in the minds of many not just the appearance of impropriety, but perhaps the actual development of an inappropriate relationship. And besides, in the online world judges can easily say things that are misconstrued. But not to worry. Judges can use their discretion and participate in the online world through a blog or other means that allow them to control access and exchange. The Supreme Court’s decision in Caperton v. A. T. Massey Coal Co. has taught us that there are limits to judges’ ability to wall off or segregate one part of our life from the other. William Dressel

From The Reynolds School of Journalism

T

his is my second and final letter as publisher of the Reynolds Courts & Media Law Journal. As dean of the Donald W. Reynolds School of Journalism, I have the privilege of calling myself a publisher—a great irony in my mind, since I spent most of my 36-year newspaper career as an editor and news executive with the San Jose Mercury News, the Miami Herald and Knight Ridder Newspapers. To those who have not worked directly in journalism, you may not know that editors and publishers have been known to have frequent. . . er, shall we say, “disagreements.” Both want excellent content and a strong bottom line, but editors and publishers disagree sometimes on the proper balance between the two. I am proud that the Reynolds Courts & Media Law Journal has, in its first two issues, already established itself as a forum for examination and discussion of the cutting-edge issues that are facing judges and other court officials, the lawyers who work in the courts each day, and the journalists who chronicle their efforts. As I head off now to become dean of the Manship School of Mass Communication at Louisiana State University, I am pleased that we have established a solid model for this non-traditional law review product of ours. I am sure that it, along with the Donald W. Reynolds National Center for Courts and Media, will continue to provide a forum for debate and discussion of the inherent tension between an independent judiciary and the freedoms of speech and of the press, to propose solutions to these inherent conflicts, and to help. Jerome Ceppos

x

Volume 1, Issue 2


Letter From the Director

Y

ou may have never heard of Milt Glick. Milt was a small man, no more than 5-foot-four by my estimate. And he was neither a lawyer nor a journalist. He was president of the University of Nevada, Reno until his tragic death in midApril. And he was an ardent supporter of the non-traditional work we are doing here at the UNR-based Donald W. Reynolds National Center for Courts and Media, in partnership with Judge Bill Dressel of the National Judicial College. We have a fairly unusual mission at the Center. We stand at the crossroads of Americans’ right to a free press and their right to a fair trial, and we attempt to identify conflicts and pose solutions. Sometimes it is hard to get all that into an elevator speech when lawyers, journalists and others look quizzically at me and ask: “Now tell me again, what it is you do?” But from the moment I met Milt, he “got it.” I remember our first lunch together. We met on campus with Dean Jerry Ceppos to talk about the Center and the Journal. He instantly grasped the possibilities behind a law journal dedicated to highlighting unresolved constitutional conflicts between the judiciary and the press. And our planned initial focus on the complicating factor of social media made Milt’s eyes light up. He loved gadgets and gizmos. To Milt, the fact that we were publishing the Journal without a law school didn’t make us crazy; it made us ambitious. President Glick looked me square in the eye and asked: “Do you want to climb the little hill or the Big Hill?” Since that meeting, we have published our first, and now this, our second edition. We have maintained a backbreaking pace, and have solidified relationships with existing partners and added some new ones. One of these partners is the Carlton Fields law firm of Atlanta, which provided substantial underwriting support for this issue of the Journal. A special thanks to Carlton Fields shareholder Walter H. Bush, a fine First Amendment lawyer and RNCCM board member, for his leadership in this regard. While we will not accept display advertising, we will welcome and acknowledge the support of law firms, foundations and individuals who believe that there is no greater imperative in a democracy than properly balancing the sometimes-conflicting rights to a free press and to a fair trial. Our approach remains to “launch” or make public each new edition at a regional conference attended by judges, journalists and lawyers. This edition will be “unveiled” in Washington, D.C. in June. Future editions will be launched at Santa Clara College of Law, and at Arizona State University’s Walter Cronkite School of Journalism. I am thrilled that U.S. Supreme Court Justice Ruth Bader Ginsburg took the time to write to us in response to an article in our first edition, which gently criticized her 2010 majority opinion in the free press/fair trial case of Jeffrey Skilling. She gave her express permission to print the letter, which you can read in this issue, along with a sampling of the other feedback we have received. One of my proudest moments in this job was sharing with Milt the framed copy of the Ginsburg letter, which we displayed March 8 at the Journal’s unveiling event on the UNR campus. That day he addressed our audience in the wake of budget cuts, staff reductions and economic crisis. But he was inspirational and ambitious as always. Let’s “climb the Big Hill.” Ben Holden

Reynolds Courts & Media Law Journal

xi


xii

Volume 1, Issue 2


Letters to the Editor Ginsburg Dissents

Oustanding

Thanks for sharing with me Volume 1, Issue 1 of the Reynolds Courts & Media Law Journal. You invited a critique so I will relay one. I found the articles on Skilling engaging, though, of course, I do not agree with the observation, p. 30, that the Court “ignored� the magnitude of the Enron tragedy. The venue question was one on which reasonable minds could (and did) disagree. One can recognize the relevant considerations, yet evaluate them differently. For the majority, the views of the seasoned District Judge, a resident of the community, were key. Every good wish for the success of the Journal, Ruth Bader Ginsburg Associate Justice, U.S. Supreme Court Washington, D.C.

Congratulations on the first issue of the Reynolds Courts & Media Law Journal. I found the articles uniformly interesting, insightful and attractively presented. You have succeeded in publishing an outstanding first issue. Alexander M. Sanders, Jr. Former Chief Judge, South Carolina Court of Appeals (Ret.) President Emeritus College of Charleston Charleston, S.C.

Cover to Cover Congratulations on the law journal, which I read cover to cover. The treatment of Enron and Skilling was great, and I enjoyed your piece as well on anonymous bloggers and libel. Tony Mauro Supreme Court Correspondent, National Law Journal/ALM Washington, D.C.

Reynolds Courts & Media Law Journal

Huge Undertaking Congratulations on a huge undertaking. Daryl Moen Professor of Journalism Studies, University of Missouri School of Journalism Columbia, Mo.

Inaugural Issue Congratulations on your inaugural issue. Walter W. Hansell Partner, Cooper, White & Cooper LLP San Francisco, Cal.

xiii


Corrections In Summary Guide to Courts and Media: A Basic Guide for Judges (Vol. 1, p. 49), the name of legal of Tony Mauro, Supreme Court correspondent for The National Law Journal and for ALM Media, was misspelled in footnote 1 on page 49. In footnote 490 on page 110 on the same article, Ron Keefover’s position was misidentified. He is Education-Information Officer with the Office of Judicial Administration of the Kansas Supreme Court. We apologize for the errors.

xiv

Volume 1, Issue 2


Preface

Modern Media in the Courts

T

he origins of our jury system date back to the 11th Century, when King Henry II, created the “assize” process to resolve land and inheritance disputes.1 Under this process, twelve “free and lawful men” were called to state, according to their own personal knowledge, which of the claimants was the rightful owner or heir.2 This “self-informing” nature of early juries began to ebb by the 15th Century,3 eventually evolving into our current jury system in which only approved evidence is presented to jurors, and jurors are admonished not to access outside information about a case. But now, in the 21st Century, we have a new type of self-informed juror: one who can readily access virtually the entire wealth of human knowledge and understanding, including facts and information on their case that may not be admissible in court. A juror with a modern smartphone literally has this information at his or her fingertips, and can access it in the courtroom, during recesses, and during deliberations. And he expects to be able to use it, as he does in everyday life. As Judge Dennis M. Sweeney states in his article, “Worlds Collide: The Digital Native Enters the Jury Box,” “for a digital native, one used to the world of the Internet and social media, … the methods and form of acquiring information in a trial may seem stifling, inefficient, and unduly restrictive.” In his article Judge Sweeney relates his experiences in two high-profile trials over which he presided: a high-profile murder prosecution in 1993, and the corruption prosecution of Baltimore Mayor Sheila Dixon in 2009. He discusses the issues that arose with traditional media and, in the second case, modern, social media. In the Dixon case, Sweeney was confronted with attorneys researching potential jurors online during voir dire; real-time coverage of the trial by several bloggers and Twitterers; and jurors who “friended” and e-mailed each other on Facebook. These questions and issues could scarcely have been imagined just a few years earlier, when judges were primarily concerned about keeping jurors away from print and broadcast news reports. Judges also face scrutiny of their online activities, as Professor Genelle I. Belmas details in her article, “That’s What ‘Friend’ Is For?: Judges, Social Networks and Standards for Recusal.” It has long been accepted that judges and attorneys may be social friends, as long as 1. A.B.A. Div. for Public Ed., Dialogue On The American Jury: We The People In Action, Part I: The History of Trial By Jury (n.d.), at 1, available at http://www.americanbar.org/content/dam/aba/ migrated/jury/moreinfo/dialoguepart1.authcheckdam.pdf. 2. Id. 3. Id. at 2. Reynolds Courts & Media Law Journal

119


Modern Media in the Courts they avoid overt conflicts of interest. But can they be “friends” on Facebook or other social networking sites? Is there – should there be – an ethical distinction between “friending” a judge and becoming a “fan” of their campaign’s Facebook site? And of the judge’s “friends” and “likes”? Belmas looks at the Supreme Court’s latest ruling on the question of judicial recusal, Caperton v. A.T. Massey Coal Co., to determine how the “probability of bias” standard articulated by the majority in that case would apply to judges’ social media activities. In “Say ‘Cheese!:’ Cameras and Bloggers in Wisconsin’s Courtrooms,” Stacy Blasiola examines how courts in a single state deal with traditional and modern media requests to cover court proceedings, including how they apply rules and standards that were crafted with still and video cameras in mind, not smartphones and Twitter feeds. But Gareth S. Lacy takes a step back to ask a more fundamental question: is all the concern about new media in the courts justified? In “Untangling the Web: How Courts Should Respond to Juries Using the Internet for Research,” he looks at the history and rationale for shielding jurors from outside information about cases, and finds that the supposed wall surrounding jurors has not always been as airtight as we like to believe. He then questions whether the traditional approach is advisable – or even possible – in the modern media era. In just a few years, social media and the Internet have become a pervasive part of many individuals’ lives; a trend that is only likely to accelerate as we create new ways to access and use the vast trove of information available “in the cloud.” And courts, some of the most tradition-bound institutions in our society, are going to have to adapt to this new digital reality. With this issue of the Reynolds Courts & Media Law Journal, we hope to spark discussion and thought about how this transformation is proceeding – and help craft the courts’ digital future.

120

Volume 1, Issue 2


Worlds Collide:

The Digital Native Enters the Jury Box By Judge Dennis M. Sweeney (Ret.)1

U

sing my experience of handling two high-profile cases twenty years apart, this article looks at how the role of the judge has changed in managing jury trials, especially ones with intense public interest, since the advent of the Internet, new media, social media, and the virtually universal availability of portable electronic devices that allow instant communications and access to amazing amounts of information of varying quality at the click of a mouse or the touch of a smartphone or tablet. Today, trial judges, even those who have ignored or resisted the technology and would never visit a social media website, must grapple with how this new world affects the judge’s role in presiding over a trial, based on constitutional standards of due process and fairness. The many aspects of the problem have begun only recently to be dealt with by scholars2 as well as by court administrators.3 This article presents some suggestions about how the trial judge can manage a trial and its participants – particularly “the digital native” juror – without compromising a fair trial by jury for the litigants. It also discusses some of the related issues that judges, lawyers and the media will encounter in this new era.

The Basu Case4

W

hen I was a new trial judge in 1992, I was assigned to try a case that received national attention. On September 8, 1992, Pamela Basu, a research chemist, was taking her 22-month-old daughter, Sarina, to her first day of nursery school. After putting Sarina into the car seat in her BMW automobile, Mrs. Basu drove a block from her suburban Maryland 1. Judge Sweeney would like to thank Blake F. Quackenbush, a student at the University of Nevada, Las Vegas’ Boyd School of Law, who assisted in the preparation of this article. 2. See, e.g., Caren Myers Morrison, Jury 2.0, 62 Hastings L.J. (forthcoming 2011), available at http:// ssrn.com/abstract=1669637; and Thaddeus Hoffmeister, Jurors in the Digital Age, 59 Drake L. Rev. (forthcoming 2011), available at http://ssrn.com/abstract=1668973. 3. Conf. of Ct. Public Info. Officers (CCIPO), New Media and the Courts: The Current Status and a Look at the Future. (presented at CCPIO 19th Annual Meeting, 2010), available at http:// www.ccpio.org/documents/newmediaproject/New-Media-and-the-Courts-Report.pdf. 4. Ordinarily, cases are known by the name of the defendants, but perhaps because of the horrific death of the victim, Pamela Basu, the cases involving her death are commonly referred to by her name. The official case captions were State v. Miller, Crim. No. 13K92027164. (Md. Cir. Ct., Howard County 1993); and State v. Solomon, Crim. No. K-93-1340 (Md. Cir. Ct., Baltimore County 1993). Reynolds Courts & Media Law Journal

121


Worlds Collide home and stopped at a stop sign. At that point, two men who had run out of gas at a nearby rest stop on Interstate 95 approached Mrs. Basu’s car, pulled her from the car and beat her, then jumped into the car and began to drive off. Tragically, as the car sped off, Mrs. Basu – who was still entangled in the seat belt – lost her balance while reaching for her child. She was dragged along the road for over a mile until, in an apparent attempt by the driver to dislodge her from the car along a farm fence, her body became wrapped in the barb wire fencing, detached from the car and came to rest on the road. Shortly thereafter, the driver stopped the car and tossed the car seat, with the child still in it, to the side of the road. The car then sped off. But later that day, the police stopped the car along a country road and arrested the two occupants, who attempted to flee on foot. The suspects – Rodney Eugene Solomon, 26, and Bernard Eric Miller, 16 – were indicted for murder, kidnapping and other crimes. Given the brazen and gruesome nature of the crime, and the timing at the start of the school year, there was extensive news coverage of Mrs. Basu’s death, both in Maryland and around the nation.5 Later that month, President George H.W. Bush – who was running for re-election – referred to the tragedy in a speech in St. Louis, saying: “[w]e cannot put up with this type of animal behavior. These people have no place in decent society...and they can rot in jail for crimes like that.”6 Within a few weeks, the crime became the impetus for the enactment by Congress of a new Federal car-jacking law.7 The new law went into effect by the end of October,8 less than two months after Ms. Basu’s death. As the trial judge assigned to the case of the first defendant to be tried,9 I became aware of the difficulty of trying such a high-profile case with intense media coverage, and prepared accordingly. Before trial, jurors were extensively questioned about the news reports they had been exposed to in newspapers and on television and radio. Despite the extensive publicity both locally and nationally, very few prospective jurors claimed that they could not be fair and impartial jurors if selected. Jurors were selected, and were cautioned in very simple form as follows: 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. If anything occurs contrary to these instructions, please write me a note, as soon as possible, and do not discuss it with anyone else.10

5. See, e.g., Auto Hijackings Shake Washington, N.Y. Times, Sept. 13, 1992, http://www.nytimes. com/1992/09/14/us/auto-hijackings-shake-washington.html; and Ted Gup, A Savage Story, Time, Sept. 21, 1992, http://www.time.com/time/magazine/article/0,9171,976504-1,00.html. 6. Remarks by President George Bush, St. Louis, Missouri, Fed. Info. Sys., Fed. News Serv., Sept. 28, 1992, available at Lexis Nexis Library, Fed. News File; see also Gwen Ifill, The 1992 Campaign: The Republicans; Bush Cites Arkansas Crime in Attack on Clinton Record, N.Y. Times, Sept. 29, 1992. 7. Anti-Car Theft Act of 1992, Pub. L. 102–519, 106 Stat. 3384 (1992), codified at 18 U.S.C. § 2119 (1992). 8. See Susan Gerling, Louisiana’s New “Kill The Carjacker” Statute: Self-Defense or Instant Injustice?, 55 Wash. U. J. Urb. & Contemp. L. 109, 113-14 (1999), http://law.wustl.edu/journal/55/109.pdf (describing the history of the federal law and the role the death of Mrs. Basu played in its enactment). See also Rachel Brand, Making It a Federal Case: An Inside View of the Pressures to Federalize Crime, 30 Legal Memorandum (Heritage Found.) 1 (2008). 9. Miller was the defendant in the first trial, while Solomon was the defendant in the second trial. Both were eventually convicted of first degree murder and received life sentences. See Solomon v. State, 101 Md. App. 331, 646 A.2d 1064 (Md. Ct. Spec. App. 1994) (affirming conviction of second defendant), cert. denied, 337 Md. 90, 651 A.2d 855 (1995). 10. Md. Crim. Pattern Jury Inst. 1:02 (1993), in Rosalyn B Bell, Maryland Civil Jury Instructions And Commentary (1993).

122

Volume 1, Issue 2


Worlds Collide At the end of the trial days, I told the jurors not to discuss the case with anyone or to let anyone discuss the case in their presence, including friends, relatives, spectators and reporters.11 No issues of juror violations of my instructions arose during the course of the trial, and there was no indication that the jurors did not follow my instructions. In informal discussions with the jurors after the trial, I was convinced that the jurors had religiously followed my instructions not to discuss the issues in the trial or engage in any outside research. This was despite extensive coverage of the trial by both local and national media. Forty-three press representatives received press credentials to cover the trial, all of which were what we now call “legacy media”: i.e., newspapers, television or radio stations, or networks.12 The reporters and journalists covering the trial were mostly veteran court reporters and were careful to adhere to restrictions that were either stated (no photos of the jurors coming into or leaving the courthouse) or implied (juror’s names not to be published during the trial).

The Dixon Case

A

lmost two decades later, I presided over another high-profile case which also received intense public interest. By comparison, the complications in this trial due to the advent of the Internet and social media – and the habits of a new type of juror – made the trial and resolution of the charges a daunting challenge that at one point threatened to derail the case. In January 2009, Baltimore City Mayor Shelia Dixon was indicted on political corruption charges by Maryland’s State Prosecutor.13 In one case, she was charged with using gift cards donated by local businesses to the City of Baltimore for Christmas presents for poor children for her own benefit.14 In another case, Ms. Dixon was charged with accepting gifts including a fur coat and vacation trips from a developer who was doing business with the City and with whom the Mayor had been romantically linked.15 Under the Maryland Constitution, if the Mayor was convicted she would automatically be removed from office upon sentencing.16 When the first case came to trial in November 2009, interest was intense in the Baltimore region and throughout Maryland. There was much speculation in the media that it would be unlikely for the state prosecutor to obtain the conviction of Mayor Dixon, who 11. See Md. Crim. Pattern Jury Inst. 1:03 (1993), id. 12. The only media issue of any note that arose during the trial was one where I denied the press access to a video taken by Mrs. Basu’s husband that morning, which showed Mrs. Basu and their child leaving the house but also showed two men in the background who the prosecution claimed were the men who minutes later would carjack Mrs. Basu’s car. I denied access to a copy of the videotape until after the other defendant, who was facing the death penalty for the offense, would be tried. See Maryland v. Miller, 1993 WL 216705, 21 Media L. Rep. 1402 (Md. Cir. Ct. Apr. 15, 1993). The decision was affirmed on appeal. See Group W Television, Inc. v. State of Maryland, 96 Md. App. 712, 626 A.2d 1032, 21 Media L. Rep. 1697 (1993). 13. State v. Dixon, Case Nos. 109009009, 109210015 and 109210016 (Md. Cir. Ct., Baltimore City indictments filed Jan. 9, 2009). The indictments, pleadings, memoranda and court orders pertaining to the Dixon trial can be found online at http://www.baltocts.state.md.us/highlighted_trials/pressroom_ state_v_lipscomb_dixon_holton.html. 14. Case No. 109210015, id. 15. Case No. 109210016, supra note 13. 16. See Md. Const., Art. XI, § 6 (2008); see also Annie Linskey, It’s difficult to remove a Md. mayor from office, Balt. Sun, Jan. 10, 2009, http://www.baltimoresun.com/news/maryland/politics/bal-md. ci.mayor10jan10,0,2941348.story. Reynolds Courts & Media Law Journal

123


Worlds Collide was a popular politician and the first African-American woman mayor of Baltimore; a predominantly African-American city. As with the Basu case, picking a jury was going to be a challenge due to the publicity the case had received in the Baltimore area. With counsel, I developed a questionnaire that prospective jurors would complete on the first day of jury selection. After the written questionnaires were completed and distributed to counsel, the jurors were interviewed at the bench on an individual basis by myself, with counsel and the defendant present. At that point, I began to understand how modern technology is changing the way that trials will be handled and the difficult issues that such technology can present for judges, lawyers, the parties, the media and the public. It soon became clear that managing this trial would be substantially more difficult than what I had experienced in the Basu case. Given that the courtroom where the case was tried was equipped with wifi access and counsel in the case were permitted to use their laptops, they were able to access whatever information was available over the Internet. Ms. Dixon’s legal team, composed of a half dozen lawyers and paralegals, had prepared an organized program to research the jurors in real time, based on the information they had received from the jury lists and questionnaires.17 They particularly made use of the public information provided in the on-line Maryland Judiciary Case Search system18 to see if there were any civil or criminal cases that the jurors had ever been involved in. The information was effectively used to challenge several jurors who gave answers to voir dire questions that were at odds with the public records. By the use of various search engines, the defense lawyers were also able to determine whether jurors had Facebook pages or were involved in other social media sites. In one case, the defense was able to determine that a prospective juror had been twittering from the courtroom while awaiting her turn to be individually questioned. She had expressed to her “followers” her adamant desire not to be picked as a juror. When asked about it, the prospective juror at first denied doing so, but when confronted with the evidence on the laptop, the prospective juror admitted that she had lied and was dismissed from the panel.19 The trial was also novel in that it had become difficult to determine who was a member of the media and whether there remains, if there ever was, a bright line distinction between journalists covering the courts and citizens interested in observing and commenting on trial proceedings. Not only was the trial covered by the Baltimore newspapers, television and local radio stations,20 but there were also several blogs or internet sites that covered the trial on a daily basis.21 Even the mainstream newspapers went beyond standard news 17. Such searches online by lawyers during jury selection have become even more frequent in the past year. See Ana Campoy & Ashby Jones, Searching for Details Online, Lawyers Facebook the Jury, Wall St. J., Feb. 22, 2011, http://online.wsj.com/article/SB10001424052748703561604576150841297191886. html; see also Brian Grow, Internet v. Courts: Googling for the perfect juror, Reuters Legal News, Feb. 17, 2011, http://www.reuters.com/article/2011/02/17/us-courts-voirdire-idUSTRE71G4VW20110217. 18. This system allows public access online to the dockets and certain other records of all of the trial courts in Maryland’s state judiciary, and is available at http://casesearch.courts.state.md.us/inquiry/inquiryindex.jsp. 19. When confronted with one of her Tweets during voir dire, the woman said that “I [tweeted] about that it was a long process, I was ready to go. I really didn’t want to be picked for this. Three weeks sounds like a long time to me.” Transcript of Voir Dire, State v. Dixon, Case Nos. 109009009, 109210015 and 109210016 (Md. Cir. Ct., Baltimore City (Nov. 19, 2009). 20. Maryland does not allow audio or video recording of court proceedings in trial court except with the consent of all parties, which was not given in this case. See Md. R. of Proc. 16-109. 21. Two of the sites that were most active were Baltimore Brew (http://www.baltimorebrew.com/), whose motto is “Stirring Up News and Views,” and Investigative Voice (http://www.investigativevoice.com/),

124

Volume 1, Issue 2


Worlds Collide coverage of the trial to run items speculating on such issues as who would play the roles of the trial participants if a movie were later made.22 Several television stations ran ongoing reports on the trial via Twitter, which not only reported on what was actually said in court but also expressed opinions and comments about Ms. Dixon, witnesses, and the trial participants, including jurors.23 Individuals pretending to be jurors and other participants in the Dixon case also anonymously ran Twitter accounts under names such as “fakedixonjuror,” and I began to understand how modern “FakeSheilaDixon,” issuing various opinions and comments about the trial that were intechnology is changing the way tended to be absurd or humorous.24 that trials will be handled and Most days of the trial, there were two law school professors and several veteran criminal the difficult issues that such defense lawyers who attended and observed technology can present. the proceedings and then appeared on newscasts to freely comment on the tactics of the lawyers, the rulings of the court, the attentiveness of the jury and the prospects for conviction or acquittal. After a two-week trial, the case was submitted to the jury for deliberations. The jury engaged in lengthy deliberations that lasted over a period of seven days, suspended mid-course for the long Thanksgiving weekend. After returning to the court and several more days of deliberations, the jury was able to reach verdicts on three of the four counts against Ms. Dixon. She was convicted on one misdemeanor count of fraudulent misappropriation by a fiduciary and acquitted of two counts of theft and one count of misconduct in office; a mistrial was declared on the final count of fraudulent misappropriation by a fiduciary, a misdemeanor. Throughout the course of the trial, I had kept the identities of the jurors confidential. The main reason for doing this was to insulate the jurors from anyone in the public who might try to influence them while they were serving on the jury. While the parties and counsel knew the names and addresses, they were was not disclosed to anyone else. A motion was filed by certain media organizations for access to the identities of the jurors. The request was denied, but the order indicated that the names would be released the day after the trial.

The Facebook Five When the names were released the day after the verdicts were rendered, a reporter for the Maryland Daily Record, a legal and business newspaper, began checking Facebook

which describes itself as “The Voice of the People.” 22. Jean Marbella, Casting Call: Picking Stars for Dixon Trial Movie, Balt. Sun, Nov. 22, 2009. 23. One station’s feed from the trial is still available at http://www.wbaltv.com/mayor-dixon-trial/index.html. 24. One such observation by FakeSheilaDixon was: “Have you ever seen that movie ‘12 Angry Men’? Total fiction. We’re more like the Justice League of American in here!” See “Fake Shelia Dixon” reporting from the jury room: Tweets as Satire. Baltimore Brew (Nov. 24, 2009), http://www.baltimorebrew. com/2009/11/24/fakesheiladixon-reporting-from-the-jury-room-tweets-as-satire/. The creation of fake Twitter accounts imitating messages from persons involved in public events is now a common occurrence. See, e.g., Richard Roeper, Fake Twitter Rahm has Thousands of Fans Including Real Rahm, Chi. Sun-Times, Feb. 16, 2011 (fake account purporting to be mayoral candidate Rahm Emanuel had 25,000 followers on Twitter, compared to 7,100 for the candidate’s real Twitter stream). Reynolds Courts & Media Law Journal

125


Worlds Collide accounts for the names of the jurors and discovered that five of the jurors had become Facebook “friends” during the course of the trial and had communicated with one another over the Thanksgiving weekend.25 Not coincidently, the five jurors who became “friends” were the five youngest jurors, all under the age of 35. In the Daily Record article, one of the jurors is quoted as defending the jurors’ actions as just being a matter of keeping in touch with one another. She said there were “no broken rules,” and she was quoted as saying: “I think it is harmless if you’re using Facebook as a social network and I believe that’s how it was being used, and keeping it within the limits of what Judge Sweeney asked.”26 Another person saying that he was “juror #11” posted a comment to the article on the Daily Record website, castigating the media for reporting on the Facebook issue: This is the furthest stretch I have seen thus far at an attempt in journalism. Brendan Kearney (the author) called me and asked leading questions, trying to force me to admit to something that was not true about myself and/or other jurors. How do you even have my number? Go write about Tiger Woods or the likes. Better yet, go work for the Enquirer.27

These reports quickly became the basis for a motion for a new trial filed by Mayor Dixon, accusing the jurors of misconduct. I ordered the five jurors to appear for an evidentiary hearing and to bring with them printouts of the Facebook pages showing all communications during the course of the trial and deliberations. I denied without prejudice a request from defense counsel to subpoena the Facebook website to obtain the communications, believing that such a subpoena was not yet shown to be necessary and that obtaining compliance28 would unduly delay the ultimate resolution of the case. At that moment, of course, a resolution was of intense public interest and importance, since the governance of the city of Baltimore was dependent on whether the conviction of Mayor Dixon would stand. On the day set for the hearing, the jurors appeared with their printouts and were placed in separate, secure rooms guarded by sheriff ’s deputies. Each of the jurors was going to be examined on the record, but in chambers to protect their privacy. Several experienced trial lawyers, who I had recruited, were standing by to provide pro bono representation for the jurors should that become necessary. Fortunately, the thorny issues presented by the jurors’ actions did not have to be resolved that day, since over the course of several hours the State Prosecutor and the Mayor’s lawyers hammered out an agreement to dispose of both criminal cases against Mayor Dixon – the one before me and the other, which was still pending – by a plea encompassing both indictments and an agreed sentence, which I assented to. The plea resulted in the Mayor resigning from her office and receiving a probationary disposition, with a fine and community service. Thus the trial was concluded without having to confront the issue of the alleged juror misconduct in using Facebook during the recess in deliberations. But it became apparent 25. Brendan Kearney, Despite judge’s warning, Dixon jurors went on Facebook, [Md.] Daily Rec., Dec. 2, 2009, http://thedailyrecord.com/2009/12/02/despite-judge%E2%80%99s-warning-dixon-jurorswent-on-facebook/ (subscription required). 26. Id. 27. Id. This is comment number 2 to the article. 28. While not knowing it at the time, a subpoena to Facebook could have triggered litigation over whether a juror’s Facebook private postings could be obtained without the juror’s consent in light of the federal Stored Communications Act of 1986, 18 U.S.C. §§ 2701, et seq. This question has now arisen in several cases including one in Sacramento, California where a juror under investigation has resisted the judge’s demands that he grant consent. See Andy Furillo, Sacramento Judge Chides Facebook for Ignoring Two Orders to Release Postings. Sacramento Bee, Jan. 8, 2011.

126

Volume 1, Issue 2


Worlds Collide to me and other trial judges that the issues raised in the Dixon trial will be ones that courts, lawyers, parties, prospective jurors, and the media will have to face again and again.

The Connected Community

C

ompared to their predecessors in the Basu case, the Dixon trial participants – whether they were jurors, lawyers, witnesses, or media – were in a world of instant communications and immediate access to unlimited information from virtually any place in the world. At the time of the Basu case, few people had cell phones. Those that did had bulky models that would at best send or receive calls and do little more. A few had pagers that might receive a short message from an employer. Most people relied exclusively on landline phones. Jurors who came to the courthouse would have to wait in line at pay telephones to make calls to family, friends, and co-workers. Lawyers did the same. If a juror had a personal computer, it was probably a desktop one and, at that time, likely not connected to the Internet. Even if a juror had a laptop there would have been no way for the juror or lawyer to have connected to the Internet from the courthouse. If a juror wanted to visit the scene of an event mentioned in the case, he would have had to physically make a trip to the location. If a juror wanted to research technical or scientific information mentioned in the case, he likely would have had to visit the local library. If the juror avoided television newscasts at 6 p.m. and 11 p.m. and reports in the morning paper about the case, there was little chance that the juror would receive information concerning the case from outside sources. At the time, the media were still covering trials using notebooks and pencils. Reports on the trial would wait for the next day’s newspapers or for the stand-up reports on the evening newscasts. At the Basu trial, there were no law professors providing instant commentary on the moves of the lawyers, the evidentiary rulings of the court or the apparent mood of the jurors. By the time of the Dixon trial, the world had changed dramatically. Virtually all of the jurors had cellphones with the capability to send text messages. Many of these were smartphones, able to access the Internet on command.29 As noted above, defense counsel had laptops, tablets, or smartphones in the courtroom connected to the Internet. The media were connected by these same devices to their newsrooms, and in some cases were able to post immediately to the public the goings on in the courtroom and courthouse, as well as the sender’s opinions and views. The Dixon jurors had much greater opportunities than the Basu jury to obtain information outside the courtroom had they chosen to do so. In a few seconds, their smartphones or their computers at home would have given them maps or pictures of any place mentioned in the case. Any person mentioned in the case could be researched in a few seconds on an electronic device. Any technical or legal term used in the courtroom could similarly be defined instantly from an array of sites.30 Similarly, the jurors could have instantly accessed the various Internet sites that were re 29. A survey published in 2009 by the Pew Internet & American Life Project found that 85 percent of adults had cell phones and that 59 percent of adults access the Internet wirelessly using a laptop or cellphone. See Pew Internet & American Life Project et al., Teens and Mobile Phones Over the Past Five Years: Pew Internet Looks Back (2009), at 3, available at http://pewinternet.org/~/media/Files/ Reports/2009/PIP%20Teens%20and%20Mobile%20Phones%20Data%20Memo.pdf. 30. Another Pew study found that 53 percent of adult internet users use Wikipedia to look for information. The site is most popular with those with a college education, 69 percent of whom use the site. See Pew Internet & American Life Project et al., Wikipedia, Past and Present (2011), at 2, available at http://www.pewinternet.org/~/media//Files/Reports/2011/PIP_Wikipedia.pdf. Reynolds Courts & Media Law Journal

127


Worlds Collide porting or blogging on the trial, including those providing running commentary about the parties, lawyers and witnesses and those commenting, describing, and speculating about the jurors and alternates. The “Facebook Five” from the Dixon case represent this new type of juror. They have been described as “digital natives”: people who were born and raised in the Internet age and have never known another way of acquiring information or communicating with others.31 This group is in contrast to an older cohort called the “digital immigrants,” who are not native to the Internet and digital age but who, with varying degrees of success, have come to understand the new age and learn its ways and devices. Perhaps, there is still a third group which I will call the “digital alien.” It is composed of those who have never learned the new language or accepted the culture of the digital native and have little understanding or tolerance for the world the digital native inhabits.

Google Mistrials

G

iven such immediate potential access of jurors and prospective jurors to information and to ways to communicate their views and receive those of others, it is not surprising that trials around the country and even overseas have been derailed by such activity.32 Virtually every day there are new reports of jurors – whether they be digital natives or digital immigrants – imperiling trials through unauthorized or unwise use of electronic devices on the Internet. This sampling is only illustrative of the many problems that have arisen from the use of the internet or social media. • In Fresno, California, a Superior Court Judge found himself sitting as a juror on a murder case, and was, indeed, designated to be the Foreman. Throughout the trial, the juror-judge sent e-mails to his 22 colleagues on the bench, including the judge presiding over the case, giving them periodic updates on the progress of the case. His first e-mail announced: “Here I am, livin’ the dream, jury duty with Mugridge [the defense lawyer] and Jenkins [the prosecutor].” After conviction, counsel for the defendant discovered the e-mails and moved for a new trial.33 The motion was denied,34 although an appeal of the conviction is pending.35 • In a state-court civil trial in Arkansas, a $12.6 million verdict in favor of investors against a building material company was attacked because the company alleges a juror sent eight messages or “tweets” via his cellular phone to his “followers” about the trial. One of the “tweets” read: “oh and nobody buy Stoam [the building material at issue]. Its [sic] bad mojo and they’ll probably cease to exist, now that their wallet is 12 m lighter.” 36 31. The terms “digital native” and “digital immigrants” were first popularly used in a 2001 article by Marc Prensky, which argued that students who were born into the Internet age were no longer the people the educational system was designed to teach. Marc Pensky, Digital Natives, Digital Immigrants, 9(5) On the Horizon 1 (October 2001), http://www.emeraldinsight.com/journals.htm?issn=1074-8121&volu me=9&issue=5&articleid=1532742&show=pdf; see also Sylvia Hsieh, ‘Digital Natives’ Change Dynamic of Jury Trials, Mass. Law. Wkly., Nov. 17, 2010. 32. 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/us-internet-jurors-idUSTRE6B74Z820101208. 33. Debra Cassens Weiss, Lawyer May Cite Judge-Juror’s ‘Livin’ the Dream’ E-Mails in New Trial Bid, ABA J. Law News Now (Apr. 16, 2010), http://www.abajournal.com/news/article/lawyer_may_cite_judgejurors_livin_the_dream_e-mails_in_a_new_trial_request/. 34. Fresno judge’s jokey jury chatter ruled immaterial, Associated Press (Aug. 10, 2010), available at http://www.ksby.com/news/fresno-judge-s-jokey-jury-chatter-ruled-immaterial/. 35. The People v. Ortiz, Case No. F060792 (Cal. App., 5th Dist. appeal filed Aug. 11, 2010). 36. What a Twit! Twitter Using Juror May Cause $12.6 Million Mistrial, Associated Press (Mar. 13, 2009), available at http://articles.nydailynews.com/2009-03-13/news/17918343_1_juror-new-trial-postings.

128

Volume 1, Issue 2


Worlds Collide • A Maryland appellate court overturned a felony-murder conviction because a deliberating juror conducted an on-line search for the terms “livor mortis” and “algor mortis” on Wikipedia, printed out the pages, and brought them in to the jury room during deliberations. The juror’s action was discovered when the jury bailiff found the print-outs in the jury room after the jurors were excused for the day. When asked about it, the juror said, “To me that wasn’t research. It was a definition.” 37 • In Luzerne County, Pennsylvania, a juror in a “shaken baby” murder case was facing contempt charges for doing Internet research on the symptoms that the child had, including the term “retinal detachment,” and offering to share the research with her fellow jurors. A mistrial was declared. In defending the contempt charges, the juror’s defense lawyer told the judge, “She just wanted to be the best juror possible.”38 • In May, 2010, a judge in Michigan fined a juror $250 and ordered her to write a fivepage essay about the constitutional right to a fair trial after the juror, during a trial, posted the following on her Facebook page: “Gonna be fun to tell the defendant they’re GUILTY.”39 • These issues are not limited to American courts. In England, a juror was dismissed from a child abduction and sexual assault trial after she posted details of the case on her Facebook page, including her reactions to the testimony. At one point, she solicited the views of her Facebook friends, telling them: “I don’t know which way to go, so I’m holding a poll.” Luckily, her actions were discovered before deliberations began, and she was dismissed as a juror. 40

The Values Represented by a Trial

G

iven that so-called “Google mistrial”41 claims appear to be increasing, trial courts should examine what they are doing and whether there are ways we can adjust the trial process to meet these new challenges. In doing so, however, we cannot sacrifice the essentials of what a trial by jury means. Trials, whether civil or criminal, are predicated on some fundamental assumptions that may not make immediate intuitive sense to a “digital native.” In a trial, the parties present the evidence – item by item, and witness by witness – to establish a claim or a defense. Each piece of evidence or testimony is vetted by the parties and the judge, and is only allowed to be presented for the jurors’ consideration if it meets the standards established by the rules of evidence. If necessary, documents are redacted to keep non-relevant information from appearing on them. In criminal cases, even highly relevant evidence may be “suppressed” if the court determines that legal requirements were not met in obtaining it. Frequently jurors do not even see the exhibits when they are admitted into evidence, but are told that they will be given to them at the end of the case at the time of deliberation.

37. Allan Jake Clark v. State of Maryland, No. 0953/08 (Md. Ct. Special App. Dec. 3, 2009) (unreported); see Steve Lash, Maryland Jury’s Wikipedia search voids murder conviction, [Md.] Daily Rec., Dec. 6, 2009. 38. Brian Grow, Juror could face charges for online research, Reuters Legal, Jan. 19, 2011, http://www. reuters.com/article/2011/01/19/us-internet-juror-idUSTRE70I5KD20110119. 39. Martha Neil, Oops. Juror Calls Defendant Guilty on Facebook, Before Verdict, ABA J. Law News Now, Sept. 2, 2010, http://www.abajournal.com/news/article/oops._juror_calls_defendant_guilty_on_facebook_though_verdict_isnt_in. 40. Guy Patrick, Juror Axed for Verdict Poll on Net, The Sun (U.K.), Nov. 24, 2008, http://www.thesun. co.uk/sol/homepage/news/article1963544.ece. 41. The apparent first use of this term was in a New York Times article on the phenomenon. See John Schwartz, As Jurors Turn to Web, Mistrials Are Popping Up, N.Y. Times, March 17, 2009, http://www. nytimes.com/2009/03/18/us/18juries.html. Reynolds Courts & Media Law Journal

129


Worlds Collide In criminal cases there are constitutional issues raised under the Sixth Amendment and similar state constitutional provisions if evidence is considered at a trial that the defendant did not have an opportunity to confront and cross-examine. To the extent that evidence is not clear or there are missing steps in a factual chain or scenario, the jury is instructed to decide the case based only on what it has before it. The jury is directed to consider who has the burden of proof in resolving any deficiencies, but not to take any action to cure the deficiency. It is strictly forbidden for the jury to take any action to make up for the perceived missing evidence, even if the jury knows that more information likely exists and is easily attainable. Jurors are also told that they can make reasonable inferences from the evidence, decide the credibility of witnesses, and use their own common sense. Historically, the role of juror until deliberations has been intentionally passive. They listen to evidence, but they are told to neither make up their minds nor discuss the case with anyone, even their fellow jurors. Questions posed by jurors during the trial are often discouraged, and frequently not allowed at all. Jurors are also told by the judge that certain witnesses are “experts,” who go through lengthy qualifications on the stand. If the judge decides that the witnesses are experts, then those witnesses – but only those witnesses – can express certain opinions. Finally, the judge tells the jury what the law is in the judge’s instructions. These instructions are not advisory in most cases, but are mandates that the jury must follow in evaluating the evidence. Look at this process from the jurors’ point of view. They are presented in a courtroom with the only evidence they are allowed to consider. This evidence has been vetted, filtered, and mediated by the judge and lawyers. Jurors are forbidden from taking initiative and finding out information on their own. In fact, they are told to be largely passive and, until deliberations begin, they usually are told that they cannot discuss the evidence or the case even with each other. They likely have been told not to ask questions during the trial. At the close of the case, they are told to deliberate, but they cannot obtain or be supplied any new information or evidence, even where they find significant gaps in what they have before them. Finally, they are told to decide this case on the legal rules the judge has provided and not to use their own values or moral sense. The trial system is closed, contained by strict rules, discourages initiative and activism by jurors, and is premised on the assumption that jurors will accept the authority of the court to guide them and are willing to base their decision only on what the lawyers present. How does this model mesh with the experience and values of the digital native juror, or even his older brother or sister, the digital immigrant who shows up for jury duty?

Values of the Internet and the Digital Age

O

ne of the early slogans of the Internet and digital age was the cry that “information wants to be free.”42 This referred not only to the cost of obtaining information, but to the concept that information – especially information on the Internet – should not be controlled by governmental or corporate sources, and should not be reserved for a privileged few. In this view, the ultimate user of the information is fully capable of being able to sort through divergent sources of varying quality and make his own decisions about what to use and rely on, and what to discard. 42. The comment is attributed to writer and futurist Stewart Brand at the first Hackers Conference in 1984. The full background and context can be found at Brand’s homepage, http://web.me.com/stewartbrand/ SB_homepage/Info_free_story.html.

130

Volume 1, Issue 2


Worlds Collide One seeking information on the Internet can and likely will cast a broad net to capture information. Then it is for the requester to sort through the results returned, pick and choose which results to skim or read, and then choose which to give weight to and rely upon. For example, if a medical term or diagnosis is put into a search engine, hundreds of thousands of results will likely be returned. Some will be from respected medical sources such as the Mayo Clinic; some will be from patients who suffered from the conditions and report on their feelings or beliefs; and some will be from companies or individuals suggesting new or alternative treatments that may or may not have any scientific validity. It is up to the individual to sort through these results and decide for him or herself what to value and explore and what to discount and disregard. Unlike information in a trial, where the juror may not be able to examine the exhibits until deliberations, the Internet user with electronic devices can access information immediately from virtually any location, bookmark it and review it over and over again as desired, and immediately link to other related information. The Internet also allows the user to discuss any subject, public or private, at any time with other people, any time of day or night, regardless of where the other people may be located. The user can find people who are interested in a subject in chat rooms, blogs, Facebook pages, or by using Twitter or similar sites. There is also little limit on what a person can say and no need to have one’s opinion backed up by data, evidence, or facts. If a person chooses, their comments and opinions can be posted anonymously with the expectation that there will be little accountability for what is said, no matter how wrong or outrageous.43 The proponents of this new age believe that people are well served by this system and that the process of truth-finding is advanced by this information and communication system. They also believe that authority figures – whether they be government officials, scientific experts, or corporate executives – should not be accepted merely based on their status or position. It should not be surprising that for a digital native, one used to the world of the Internet and social media, that the methods and form of acquiring information in a trial may seem stifling, inefficient, and unduly restrictive. For persons who are used to darting among many different devices, websites, blogs, social media sites on a continual basis, updating information, opinions and contacts many times each hour, sitting in a jury box hour after hour, waiting for the slow presentation of each item of testimony or document, with interruptions for objections and bench conferences, will likely be an excruciating ordeal that is almost intolerable; especially if they cannot use their own electronic devices.44 43. The courts have aided the feeling of a lack of accountability on the Internet by finding that significant thresholds must be reached before anonymous posters on Internet sites are required to have their identities revealed, even when the comments are alleged to be defamatory. See, e.g., Independent News v. Brodie, 407 Md. 415, 966 A.2d 432 (2009); see also Ben Holden, Who Was That Masked Man?, 1 Reynolds Cts. & Media L. J. 33 (2011). 44. Some psychologist and psychiatrists assert that some people suffer from “Internet addiction” that should be recognized as a disorder requiring treatment. For a discussion of the subject and the state of the research on it, see Sookeun Byun, et al., Internet Addiction: Metasynthesis of 1996 -2006 Quantitative Research, 12 CyberPsychology & Behavior (2009), available at http://www.liebertonline. com/doi/pdfplus/10.1089/cpb.2008.0102; see also, Matt Rictel, The Lure of Data: Is it Addictive?, N.Y. Times, July 6, 2003, http://www.nytimes.com/2003/07/06/business/the-lure-of-data-is-it-addictive. html. Some have narrowed the field to suggest the existence of a “Facebook addiction disorder.” See Katie Hafner, To Deal with Obsession, Some Defriend Facebook, N.Y. Times, Dec. 20, 2009, http://www. nytimes.com/2009/12/21/technology/internet/21facebook.html. Reynolds Courts & Media Law Journal

131


Worlds Collide

Worlds Collide45

W

hat happens when these two worlds collide, when jurors, either digital natives or fully immersed digital immigrants, enter the courtroom? Should the jury trial, which has only marginally changed in centuries, be refashioned to recognize the new environment that surrounds it? Is there a way that the values of due process and fairness embodied in a trial can – or should – recognize or accommodate the new juror? Can the new juror, enmeshed in the internet and social media sites, be trusted to accept and work under the constraints of a trial system that to some will seem archaic and inefficient, and which seems to operate to keep potentially valuable and relevant information from the jurors? These are the questions that will face judges, lawyers and litigants in the coming years. The trial judge is the one that has to try to reconcile these two worlds. It is unlikely – and certainly not desirable – that the core values and basic rights inherent in our jury trials be changed. Parties are entitled to have a trial based on evidence they know about. They are entitled to confront the evidence, cross-examine witnesses and have only legally relevant evidence be considered by the jury. In a country that values the rule While the core values of our court of law as a fundamental principle, parties system will not change, there are are also entitled to have their cases decided ways that courts can recognize the based on the law applicable to their case, which should be the same law applicable to new era. others equally situated. But while the core values of our court system will not change, there are ways that courts can recognize the new era that we are in without unduly compromising the important rights of the parties in a jury trial.

The Road Ahead

H

opefully, there are ways that would work to reasonably insure that parties before the court are receiving fair jury trials based only on the evidence presented in the court and without the intrusion of outside information, advice, or opinion, but that also, where possible, accommodate the new type of juror. In my view, courts should take an approach that educates prospective jurors as early as possible about the responsibilities of a juror, the nature of a trial and the reasons for the court’s process and rules. The message should be re-enforced throughout the process of jury selection, trial and deliberation. We should seek to get jurors to affirmatively “buy in” to the rules that are required, but also respect and accommodate their requests for more information where possible. We should also explain to jurors why we cannot provide more information than what they have received. If prospective jurors do agree to follow the rules for a trial, we should then hold them accountable if they violate these rules and serious harm is done to the litigants and the trial process. Some steps to implement this approach are discussed below, but before discussing what judges can do there are some possibilities that seem like tidy solutions, but which I don’t think will work in the long run.

45. The concept of worlds colliding comes from a blog post by Robert Gezelter, who wrote about social media and juries after attending a presentation I gave with two other judges at the Legal Tech conference in New York on Jan. 31, 2011. See Robert Gezelter, Colliding Worlds: Pervasive Connectivity and Social Media, InfoSec Island, Feb. 11, 2011, https://www.infosecisland.com/blogview/11637-CollidingWorlds-Pervasive-Connectivity-and-Social-Media.html.

132

Volume 1, Issue 2


Worlds Collide

Complete Ban on Electronic Devices One solution would be to simply ban all electronic devices from the courthouse, creating a zone where no visitor – whether party, lawyer, prospective juror, witness, journalist, or mere observer – could communicate by smartphones, laptops or other electronic devices. While this would stop the prospective juror and others from communicating from the courthouse, there would be no way to prevent the prospective juror going to his car in the parking lot at lunch and using a device or logging on at home during a recess in a multipleday trial. This solution also does not recognize the importance that such devices play in the modern world. Jurors in their daily lives are now used to being in touch with their families, friends, and co-workers by cellphones or texting. Caregivers of children, the aged, or the disabled are often only able to serve as jurors because they are able to keep in regular touch with those for whom they are responsible. There also may no longer be reasonable substitutes at the courthouse for basic communication, since pay-phones in courthouses are disappearing from the landscape because they are no longer profitable to the companies that supply them.46 Jurors will feel stranded and isolated if there is no way to communicate with family, friends, and co-workers during a jury trial. Prospective jurors will resent even more the time spent waiting if they cannot use the time productively by working on laptops or reading books on tablet-type devices.47 While it could help to deal with the problem of the misbehaving juror, a total ban on electronic devices in the courthouse has so many downsides, including increasing frustration for prospective and sworn jurors, that other options should be considered and tried first.

Sequestration of Juries When the “Facebook Five” issues arose in the Dixon trial, comments were made in the news media and blogs that I should have sequestered the jury during the trial and deliberations. In the Luzerne County, Pennsylvania “shaken baby” case discussed above,48 the prosecuting attorney said, after the mistrial was declared, that sequestering the jury could be the only solution to trying such cases in the future.49 A New York trial judge, faced with misconduct by jurors using the Internet in a criminal trial, concluded in his opinion on the subject that sequestration might be the only solution to the temptation jurors faced.50 While sequestration during trial or deliberation remains a tool that courts will perhaps use in a particularly sensitive case, the procedure has fallen into disuse because of its many downsides of housing jurors overnight and totally insulating them from any contact with non-jurors, including family members. In an influential article on the use of sequestration by courts, Professor Marcy Strauss concluded that sequestration should be avoided for 46. See Alon Avdi, AT&T to Phase Out Pay Phones by 2009, Switched, Dec. 4, 2007, http://www.switched. com/2007/12/04/atandt-to-phase-out-pay-phones-by-2009/3. 47. For an informal survey of Texas state trial judges reaction to the idea of banning jurors from having cellphones or other devices. See Tricia Deleon & Janelle Forteza, Is Your Jury Panel Googling During the Trial?, 52 The Advocate (Tex. State Bar Lit. Rep.) 36, 38-39(2010) (finding that most judges in an informal survey did not favor banning cellphones from the courthouse). 48. See supra text accompanying note 38. 49. Terrie Morgan-Besecker, Handling of Jurors May Be Modified, (Wilkes-Barre, Pa.) Times Leader, Jan. 18, 2011, http://www.timesleader.com/news/Handling_of_jurors__may_be__modified_01-17-2011. html. 50. People v. Jamison, 24 Misc.3d 1238 (A), 899 N.Y.S.2d 62 (table), 2009 WL 2568740 (text) (Aug. 18, 2009). Reynolds Courts & Media Law Journal

133


Worlds Collide many reasons, including the financial cost to the government and the potential psychological harm to the jurors if the sequestration period is long.51 Professor Strauss also found that sequestration can be counter to truth seeking because it can lead to a non-representative jury, can cause jurors to rush to judgment and can lead to possible prejudice against parties if the jury perceives the sequestration as being caused by one side or the other.52 While sequestration is available in the exceptional case, there are probably less Draconian and more juror-friendly ways to guard against possible juror misconduct.

The Juror Education and “Buy In” Approach

H

ere are some modest suggestions that will hopefully help to educate jurors about the values inherent in trials and insure that selected jurors have “bought in” to the need to abide by fair trial rules before selection. This approach also encourages courts and lawyers to accommodate jurors’ needs for more information and explanations.

Better Education of Prospective Jurors Many court systems have programs that educate the public, including students, about jury trials, their value, and how they are conducted. These programs should include a section that explains why the only evidence that can be considered at a trial is that evidence presented in court that the parties have an opportunity to examine, confront, and contest. Such a program could begin the process of explaining to jurors why the habits they use to acquire information in their daily lives will have to be suspended if they are picked for a jury. When it comes time to summons prospective jurors, trial courts should inform them in the first information they receive from the courts – before reporting for service – that restrictions will be placed on their access to information and communications while serving.53 Courts should also caution potential jurors not to speculate about which cases they may be called to sit on, or to do any research in advance on the cases they might be called to sit on.54 The American College of Trial Lawyers has prepared a notice that they recommend be included with each jury summons. It reads: [I]n order to assist the court in providing 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 51. Marcy Strauss, Sequestration, 24 Amer. J. Crim. L. 65 (1996). 52. Id. at 112-17; see also Neil Vidmar & Valerie P. Hans, American Juries: The Verdict (2007), at 115 (“Jury sequestration has fallen out of favor largely because of the extraordinary stress and disruption it causes for jurors.”). 53. This is part of the recommendations of the National Conference of State Trial Judges of the Judicial Division of the American Bar Association contained in their best practices paper. See A.B.A. Judicial Div. Nat’l Conf. of State Trial Judges A Fair Trial: Jurors Use of Electronic Devices & the Internet (2010), http://www.americanbar.org/content/dam/aba/migrated/2011_build/state_trial_judges/ fair_trial_handbook.authcheckdam.pdf. 54. An example of how juror information learned through internet research before trial can create a problem is Russo v. Takata Corp., 774 N.W.2d 441 (S.D. 2009). In this wrongful death case against a seat belt manufacturer, upon receiving his jury summons that included the name of the parties, a prospective juror undertook research about the case listed on the summons and went to the defendant’s company’s website and perhaps others related to it. The prospective juror concluded from his research that the company was not involved in other litigation over defective products, and later conveyed this information to fellow jurors during deliberations. After a verdict in favor of the company, a new trial was ordered.

134

Volume 1, Issue 2


Worlds Collide 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.55

The court’s web site should similarly include cautions of this nature in its sections directed at prospective jurors.

Juror Orientation During orientation on the first day of jury service, written and oral instructions should be given to jurors about not doing any Internet research or discussing their jury service with others until their service is completed. Jurors should be told upon arrival for jury service that they should not engage in any communication about their impending jury service and should be advised about the need to respect the privacy of other jurors.56 The orientation films that many courts use should contain a section on this subject and explain the reasons the rule is important and necessary for our system of justice.

Jury Selection During jury selection, the judge should ask voir dire questions about whether prospective jurors use the Internet and social media sites and whether they would be able to abide by the necessary restrictions during trial. If a trial is going to be lengthy or high-profile, the questioning should be more detailed, particular and probing, since the temptation to stray from the requirements will be more intense in such cases. This is a voir dire question that I prepared for a recent trial that was going to receive significant media coverage:57 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 discuss the case with anyone including courtroom personnel, spectators or anyone participating in the trial. Many of you, like me, use cellphones, Blackberries, smart-phones, tablets or computers or other devices to communicate with family, friends, co-workers or others. You may also be involved in social media or networking sites such as Facebook, MySpace, LinkedIn, YouTube or Twitter, and be accustomed to communicating your views, observations or opinions on these sites.

55. Amer. Coll. of Trial Lawyers, Jury Instructions Cautioning against Use of the Internet and Social Networking (Sept. 2010), at 1, available at http://www.actl.com/AM/Template. cfm?Section=Home&template=/CM/ContentDisplay.cfm&ContentID=5213. 56. An example of the type of violation to try to avoid for jury privacy purposes is one committed by NBC’s Today Show weatherman, Al Roker, who sent Twitter messages while serving on jury duty in Manhattan Criminal Court, and took pictures of fellow potential jurors that he posted to his account. See Dareh Gregorian, Oh What a Twit: Tweeting Roker Sorry for Taking Juror Pix, N. Y. Post, May 29, 2009, http://www.nypost.com/p/news/regional/item_orPeW3RKHabFGbsbXOYCXI. 57. The instruction was prepared for the trial of State of Maryland v. Helen L. Holton, Case No. 109209024 (Baltimore City indictment filed July 28, 2009). Ms. Holton, a Baltimore city councilwoman who was charged with violations of the Maryland campaign finance laws, entered a plea of nolo contendere on the morning that jury selection was set to begin. Ms. Holton was also charged in a separate case (No.109007007) with bribery; I dismissed some of the charges in the bribery case in the grounds of legislative immunity, 2009 WL 6366158 (Trial Order) (Md. Cir. Ct. May 28, 2009), aff ’d, 193 Md. App. 322, 997 A.2d 828 (Md. Ct. Spec. App. 2010), a ruling that has been appealed to the Maryland Court of Appeals. See State v. Holton, Case No. 91 (Md. argued March 3, 2011). Reynolds Courts & Media Law Journal

135


Worlds Collide During this trial, you must not use these sites or ones like them to communicate anything about this case or the individuals participating in it. 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. Is there any member of the panel who believes they could not abide by this requirement during the trial or would have trouble doing so?

Such questions and the dialogue that the prospective juror may have with the court in response are part of the “buy-in” approach of getting prospective jurors to understand what is required and having them agree that they will abide by what is needed for the trial. The judge’s approach to this questioning is important. The juror who is very active in the social media world should not receive the impression that his activities are seen as unworthy by the judge or lawyers or that she will be necessarily disqualified from jury duty because of their online habits.58 The purpose is to have a discussion with the prospective juror that gauges whether the juror will be able to adhere to the requirements for trial and, if so, get the agreement of the juror to do so. Some attorneys have proposed having jurors in high-profile cases sign written pledges that they will not use social media.59 One attorney in the Barry Bonds trial in California wanted the jurors to sign a document saying: “I don’t go on Facebook, I don’t Twitter. I don’t tweet. I don’t read anything between the time I sign this questionnaire and the end of this process. And [if ] I did, the court has indicated that I would be in contempt of court and subject to a fine or a jail sentence.”60 While a written pledge has some superficial attraction, there is danger in separating out one aspect of jury service and its obligation and elevating it above all the others by including it in a written statement, while leaving out the other requirements. It is probably more effective to discuss the issue in voir dire questioning and fully vet the juror’s willingness to abide by trial requirements, and then rely on the jurors’ responses made under oath. If a juror cannot be trusted to be candid in voir dire questioning under oath, having that juror sign a written statement probably adds little more confidence.

Introductory Instruction Once the jury is selected, at the beginning of the trial the judge has another opportunity to explain the rules and impress again on the jurors what they have promised to do.61 This is an instruction I drafted after looking at and borrowing from other proposals from around the country:62 58. While prospective jurors should not be excluded from jury service solely because of heavy social media use, there may be some jurors who will find it very difficult to limit their activities. Some may find it virtually impossible. See Byun et al., supra note 44, concerning internet addiction. Individual judgments will need to be made based on the totality of the prospective juror’s responses and the informed judgment of the trial judge. 59. This is included in the proposed instructions of the American College of Trial Lawyers as a “Statement of Compliance” that each juror would sign; see Amer. College of Trial Lawyers, supra note 55. 60. Ginny LaRoe, Barry Bonds Trial May Test Tweeting Jurors, The Recorder, Feb. 15, 2011, http://www. law.com/jsp/ca/PubArticleCA.jsp?id=1202481944364. 61. A recent survey of trial judges found that 56 percent of responders were giving jurors some instructions on new media use. See CCPIO, supra note 3, at 9. 62. Excellent compilations of jury instructions from state and federal courts around the country pertaining to the internet and social media can be found on the web site of the National Center for State Courts; see, Nat’l Ctr. for State Cts., Social Media and the Courts, http://www.ncsc.org/topics/media-relations/social-media-and-the-courts/state-links.aspx?cat=jury%20instructions%20on%20social%20 media; see also Eric P. Robinson, Esq., Juror Use of Social Media: A State-by-State Guide, Blog Law Online, http://bloglawonline.blogspot.com/2010/02/juror-use-of-social-media-state-by.html.

136

Volume 1, Issue 2


Worlds Collide Model Admonition (for delivery to veniere 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 boradest 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.

Jurors should be reminded of the opening instruction frequently during the trial, before any recess and particularly when the jury separates at the end of the day. This reminder could be in the form of a shorter version of the Admonition, such as the following: 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.

An interesting additional proposal was made in the Florida Bar Journal by a judge and two litigators. They suggested that sworn jurors be told at the beginning of the trial that they should send to all of their e-mail contacts, Facebook friends and Twitter followers the following message: I am sending this note to you as instructed by Judge_________. I am now a sworn juror in a trial. I am sequestered. This means I am not allowed to read or comment upon anything having to do with the subject of the trial, the parties involved, the attorneys, or anything else related to my service as a juror. Please do not send me any materials; don’t e-mail, text, or tweet me any questions or comments about this case or my service as a juror. Please do not text or e-mail me during the course of this trial Reynolds Courts & Media Law Journal

137


Worlds Collide except in an emergency. I will send you a note when I am released from my duty as a juror. 63

The authors further suggest that jurors could leave a variation of this message as the greeting in their voice mail during their service.64 This approach could perhaps work with those contacts who are responsible and sober citizens, but it likely would tempt less serious contacts to respond in a way that might create more problems for the fairness of the trial than the warning would prevent.

Judge and Lawyer Awareness The “buy in” approach is not a one-way street. In the new environment of juror access to instant information and communication, judges and lawyers should be aware throughout the trial that placing information before jurors in an incomplete, confusing or haphazard fashion will understandably tempt even conscientious jurors to seek outside information to complete the picture. While we should strictly instruct jurors to resist the temptation, it is prudent for counsel to prepare their cases to answer the obvious questions that will arise and to do so as early in the case as possible. Judges should prompt counsel to consider answering the obvious questions presented, such as having a witness fully explain the use of technical terms instead of leaving them open. If more explanation will come with later witnesses, that should be emphasized to the jurors. Obviously, the judge must be careful not to become an advocate for one side or the other, but prompting counsel to have witnesses fully explain technical or scientific terms or to present their cases with an eye to the information that is readily available to jurors by a click of their smartphones is well within the judicial role of managing the trial. Counsel should prepare their cases with awareness of what jurors who are used to instantly obtaining information on any subject from the World Wide Web may expect and plan their presentations and examinations accordingly. One device that can be helpful to engage a juror with the case is to supply jurors with trial notebooks, prepared by counsel and the court, which may include such items as the court’s instructions, selected exhibits, stipulations of the parties, and a glossary of terms used, especially if there is technical or scientific evidence involved.65 The notebook can be supplemented as the trial progresses. The jurors can write their notes in the book and highlight exhibits. Where I have used juror notebooks, the jurors are more engaged and universally feel that it made the trial more interesting. It certainly will only be a short time before such information will be supplied not by a traditional three ring binder but by giving each juror a tablet type device for their use at trial. The exhibits will be loaded on to this device, which will also contain searchable databases of evidence that the juror can use and mark pages or type margin notes.

Questions by Jurors During the trial, there should be some opportunity for jurors to bring up questions or issues of major concern to the attention of counsel and the court. The inquiry can be vet 63. Ralph Artigliere, Jim Barton & Bill Hahn, Reining in Juror Misconduct: Practical Suggestions for Judges and Lawyers, 84(1) Fla. Bar J. 8 (Jan. 2010). This recommendation is also made in the American College of Trial Lawyers’ proposed instructions. See Amer. Coll. of Trial Lawyers, supra note 55, at 5. 64. Id. 65. This is a recommendation of Principle 13 of the American Bar Association’s Principles for Juries & Jury Trials (Aug. 2005). See A.B.A. Amer. Jury Proj., Principles for Juries & Jury Trials (Aug. 2005)., available at http://www.americanbar.org/content/dam/aba/migrated/juryprojectstandards/ principles.pdf-2011-02-04.

138

Volume 1, Issue 2


Worlds Collide ted by the court and counsel, and can either be addressed by the parties, or the judge can explain to the jury why the question cannot be answered. The traditional view is that jurors should be neutral, passive, and silent, allowing the adversarial system to present to them what they need to resolve the case. As one commentator observed, “while evidence is being adduced, [jurors] sit silent, cast – one might say – into the role of potted courtroom plants.”66 Under this view, allowing jurors to raise questions during the trial should not only be discouraged; it should be disallowed entirely by the trial judge, and the jurors should be admonished to keep their questions to themselves. As jurors have become better educated, more assertive, and less willing to automatically and meekly accept absolute fiats about their role, judges and lawyers have reexamined the proposition that jurors should be seen but never heard during the trial. Some courts have tried to find ways to allow jurors under Counsel should prepare their cases tightly controlled circumstances to have their with awareness of what jurors who questions reviewed and, in some cases, even asked and answered. This procedure has been are used to instantly obtaining successfully introduced in many state67 and information on any subject from the federal courts,68 including the U.S. district World Wide Web. courts within the Seventh Circuit.69 Understandably, there is a greater reluctance to allow jurors to propose questions in criminal trials, where the prosecutor has the burden to prove the defendant’s guilt beyond a reasonable doubt and establish each and every element of the offense. In such cases a juror’s question may assist the prosecutor by removing potential doubt that he otherwise failed to address in his presentation. Thus some jurisdictions bar or limit questions from jurors in criminal cases, while allowing them in civil cases.70 Other jurisdictions allow juror questions to be considered in criminal trials and have rejected contentions that such a pro 66. Mirjan R. Damaska, Evidence Law Adrift (1997), at 90, quoted in Vidmar & Hans, supra note 52, at 343. 67. A review of the law in 2003 found that at least 31 jurisdictions permit some type of juror questioning. Sarah West, “The Blindfold of Justice Is Not a Gag”: The Case for Allowing Controlled Questioning of Witnesses by Jurors, 38 Tulsa L. Rev. 529 (2003). A 2007 survey of judicial personnel and attorneys found that respondents in all but four states – Delaware, Mississippi, North Carolina and South Carolina – reported that their courts allowed jurors to submit written questions to witnesses, in at least some proceedings. Gregory E. Mize, Paula Hannaford-Agor & Nicole L. Waters, The State-Of-TheStates Survey Of Jury Improvement Efforts: A Compendium Report (2007), at 85, available at http://contentdm.ncsconline.org/cgi-bin/showfile.exe?CISOROOT=/juries&CISOPTR=112. 68. The Federal Circuit courts that have considered the issue have held that allowing jurors to submit questions for review by the trial judge is within the discretion of the trial judge, but many of the opinions discourage the routine use of the procedure especially for criminal cases. See 29 Fed. Prac. & Proc. Evid. § 6235 (supp. 2010). 69. The Seventh Circuit Bar Association’s American Jury Project, chaired by Chief Judge James F. Holderman of the U.S. District Court for the Northern District of Illinois, conducted a study of juror questions and strongly recommended the procedure for state and federal trials. See Seventh Circuit American Jury Project: Final Project (Sept. 2008), available at http://www.7thcircuitbar.org/associations/1507/files/7th%20Circuit%20American%20Jury%20Project%20Final%20Report.pdf; see also S.E.C. v. Koenig, 557 F.3d 736 (7th Cir. 2009) for a discussion of the procedures used in the Seventh Circuit and an explanation of why it is better for the court to listen to juror’s questions rather than merely instructing them not to ask them. 70. A 2005 article reported that Texas, Georgia and Minnesota had taken this approach. Terry Carter, The Verdict on Juries, 91 A.B.A. J. 41 (April 2005). Reynolds Courts & Media Law Journal

139


Worlds Collide cedure violates a defendant’s constitutional rights.71 When questions from jurors are considered, there should be an orderly screening process that makes certain that inappropriate questions are not allowed. A format for handling juror’s questions is included in the American Bar Association’s Principles for Juries and Jury Trials, adopted in 2005: • Jurors should be instructed at the beginning of the trial concerning their ability to submit written questions for witnesses. • Upon receipt of a written question, the court should make it part of the court record and disclose it to the parties outside the hearing of the jury. The parties should be given the opportunity, outside the hearing of the jury, to interpose objections and suggest modifications to the question. • After ruling that a question is appropriate, the court may pose the question to the witness, or permit a party to do so, at that time or later; in so deciding, the court should consider whether the parties prefer to ask, or to have the court ask, the question. The court should modify the question to eliminate any objectionable material. • After the question is answered, the parties should be given an opportunity to ask follow-up questions. 72 It may seem that informing jurors that they can propose questions for witnesses will produce an endless string of questions that will delay the trial and divert the attention of jurors from the information that the attorneys are presenting through their questioning. It has not been my experience that this is the case, especially if the jury is instructed in advance that the lawyers will be doing the questioning and that jurors should propose questions only if they think an important matter is not being addressed. In many cases where I have given an instruction regarding juror questions at the beginning of trial, no questions were, in fact, proposed. In those cases where questions were proposed, I generally found them to be appropriate and relevant to the subject matter of the case.73 While lawyers are understandably nervous about allowing jurors to pose questions, even under the constraints envisioned by the ABA Principles, I have found that when they do hear the jurors’ questions, the attorneys often appreciate the insight into what at least one juror is thinking, so that mid-trial adjustments in the case presentation can be considered. It should be remembered that if a juror has a question it does not necessarily evaporate if the juror is told that it cannot be dealt with during trial. The juror is likely to carry it into deliberations, when the parties and the judge then have no opportunity to correct a misimpression, clarify a point, or explain that some issue is not relevant. As Chief Judge James Holderman, the chair of a Seventh Circuit study of jury practices of the courts within the Circuit,74 put it, “When the question is off-base, that’s when you really want jurors to be asking questions because they are already thinking off-base, and then I as the judge can bring them back.”75 If the human urge to ask a question is totally stifled, it may become an irresistible temptation for the juror to turn to his smartphone or tablet during a recess in the trial or delib 71. See, e.g., Medina v. People, 114 P.3d 845 (Colo. 2005). 72. See A.B.A. Amer. Jury Proj., supra note 65, Principle 13. 73. My experience is consistent with the findings of two researchers who found that in cases where jurors were explicitly told they could propose questions, no questions were asked in many cases and that in cases where jurors did ask questions, the median number of questions per trial was two. Larry Heuer & Steven Penrod, Juror Notetaking and Questions Asking During Trials: A National Field Experiment, 18 Law & Hum. Behav. 121, 141 (1994). 74. Seventh Circuit American Jury Project, supra note 69. 75. Rachel M. Zahorsky & James Holderman, Jury Duties, ABA Journal’s Legal Rebels: Remaking the Profession (Nov. 9, 2009), http://www.legalrebels.com/profiles/james_holderman_jury_duties.

140

Volume 1, Issue 2


Worlds Collide erations for a quick explanation from whatever website the juror’s search engine presents.76

Final Instructions Prior to deliberations, the jury should be instructed again, as part of the instructions for deliberations, about the need to not communicate with others or to obtain information from other persons or sources. Each juror should be given a written copy of this instruction during deliberations and perhaps be reminded of their “buy-in” to these restrictions when they were first selected. At this point, if not even earlier, it would probably make sense to instruct the jurors to report any violations of the rule by other jurors. Here is an instruction that I drafted, again after looking at proposals from around the country: 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.

Deliberations During deliberations, as indicated in the above instruction, all electronic devices should be removed from the jurors’ possession and held by court staff. During breaks in the deliberation day, the devices can be returned, but only to make calls to family, jobs, or other necessary contacts. The temporary return of the devices should be preceded by a reminder from the judge about the rules for their use. The jurors would be forbidden from accessing web sites of any type, except with the court’s permission and oversight. Overnight separation of the jurors while in the midst of deliberations will require the court to forcefully remind the jurors of these directives and the court’s instructions.

Juror Sanctions Most judges – correctly, in my view – are loath to impose sanctions upon jurors even when “misconduct” has occurred. It may, however, be necessary that a juror receive a sanction that would serve as an example to others in particularly egregious cases, where the directives to the juror were clear and there is no reasonable excuse for a violation. This would be particularly appropriate where the misconduct resulted in a mistrial or the granting of a motion for new trial, where parties, victims, attorneys, and others are greatly inconvenienced and where substantial expenses were incurred in the trial process.

76. In the Luzerne County shaken baby case, the juror who was cited for doing Internet research on retinal detachment during deliberation had earlier in the trial asked the judge if she could pose a question. She was told she could not. See Grow, supra note 38. Reynolds Courts & Media Law Journal

141


Worlds Collide

Anonymous Juries In high profile cases where there is intense public interest, it is a good precaution to have the jurors’ names and identifying information shielded from the public and the media during trial. This helps to insulate jurors from people, whether they be friends or total strangers, attempting to influence the trial by contacting the jurors or their family members, electronically or by other means. Traditionally, anonymous juries have been mostly used where there was concern about the jurors’ safety, or where there were concerns about attempts to intimidate jurors. Even before the issues of social media were so pressing, some commentators had argued for expanding the use of anonymous juries to encourage jurors’ willingness to participate in jury service and ensure fairer verdicts.77 In this new age when, with just a bit of information, even just a name and a geographical location, one can find an individual and potentially access the person’s social media profiles, courts should take care to insulate jurors from such scrutiny and contacts during the trial78. The attempts to contact may not have malicious intent, but they could still be troubling if the person making the contact communicates any information, views, or opinions about the case. In the Dixon trial, I kept the jurors’ names and addresses from public disclosure during the trial to insulate them from such contacts, given the high public interest in the case. I was also concerned that even innocently intended contacts by members of the public could compromise the jurors’ ability to serve. Several media organizations intervened into the proceedings to argue that it was improper for the court to withhold the names during the trial. I held a hearing the day after the verdict and agreed at that point to release the names, because the jury was discharged and the harm I was guarding against – interference with the jury’s work – was no longer relevant. These issues are currently front and center in the extortion and bribery trial and appeals of former Illinois Governor Rod Blagovich, where the trial judge ordered an anonymous jury for the first trial. This ruling was appealed, which led to a sharp division among the appellate judges who reviewed the media’s challenge.79 On re-trial, the trial judge has again concluded that an anonymous jury is required to avoid potential interference with the jurors.80 77. See, e.g., Nancy J. King, Nameless Justice: The Case for Routine Use of Anonymous Juries in Criminal Trials, 49 Vand. L. Rev. 123 (1996). 78. In Maryland, these concerns have recently been recognized in a court rule proposed by the Standing Committee on Rules of Practice and Procedure which would allow jurors’ names and home location to not be disclosed during trial if the trial court determines that disclosure would likely subject the jurors to “coercion, inducements, other improper influence, or undue harassment.” Proposed Rule 4-312, 168th Report of the Standing Committee on Rules of Practice and Procedure (letter dated March 16, 2011), at 34-41, available at http://www.mdcourts.gov/rules/reports/168thReport.pdf. The proposed rule would allow an anonymous jury in “high profile cases where strong public opinions about a pending case is evident....” Committee note to Proposed Rule 4-312, id. at 38. 79. U.S. v. Blagojevich, 612 F.3d 558, 38 Media L. Rep. 1929 (7th Cir. 2010), (opinion by Judge Easterbrook vacating and remanding trial court’s order withholding juror information), reh’g en banc denied, 614 F.3d 287 (7th Cir. 2010) (Posner, J., dissenting); see also Thaddeus Hoffmeister, Judges Posner and Easterbrook Disagree Over Anonymous Jury Issue, Juries (blog) (July 16, 2010), http://juries.typepad. com/juries/2010/07/judges-posner-and-easterbrook-disagree-over-anonymous-jury-issue.html. Upon remand, the trial court reached the same decision to withhold the jury information. See U.S. v. Blagojevich, --- F.Supp.2d ----, 2010 WL 2934476, 38 Media L. Rep. 2089 (N.D. Ill. July 26, 2010). 80. U.S. v. Blagojevich, 2011 WL 812116 (N.D. Ill. Feb. 28, 2011). A similar determination was made in the perjury trial of Barry Bonds. U.S. v. Bonds, No. C 07-00732 SI, 2011 WL 902207 (N.D. Cal. Mar. 14, 2011); see Juliet Macur, Jurors’ Names to Be Kept Secret in Bonds Case, N.Y. Times (March 15, 2011); see also Jurors’ Privacy, Public’s Rights To Know Collide, Associated Press, Mar. 22, 1011, available at

142

Volume 1, Issue 2


Worlds Collide

Standards for New Trials The Maryland appellate courts, like other appellate courts around the country, have found new trials to be required whenever, in the words of one case, juror misconduct suggests “even the hint of possible bias or prejudice.”81 This is the rule even where the case appears to be otherwise error-free and the trial judge made findings that the misconduct was not material to the fairness of the verdicts reached. These strict appellate standards should be reviewed in light of the modern realities facing jurors and trial judges. For example, in evaluating claims of juror “misconduct,” casual and non-serious postings made by a juror or potential juror in the atmosphere of a social media site should be evaluated with an understanding of the culture found there and courts should not overreact by voiding trials where the overall record reflects that a fair trial was held. For example, in the Dixon case, one of the jurors, a 24-year-old male posted the following on his publicly available Facebook page, after the verdict and before the new trial hearing: “If you see me on the news, remember you don’t know me. Fuck the judges and the jury pimpin.” The media seized on the comment as showing great hostility by the juror.82 After the Dixon case was fully resolved, I spoke to the juror who posted the remark and asked him about it, since he had always been very friendly and polite during the trial. He smiled sheepishly and said, “Hey judge, it means nothing. That’s just Facebook. We’re cool.” While allegations of juror misconduct involving the Internet should be explored and taken seriously, it is probably a good idea for those not used to the culture of the digital native to not overreact, and to judge the supposed violation in the context of the entire trial. This article has focused on the role of jurors in this age of new media. There are others involved in jury trials who will need to consider how their roles in jury trials will be affected by the Internet and social media world. Judges will also need to figure out whether new rules will be needed for these participants as well as themselves.

Regulating Lawyers

C

ourts and trial judges also have to think about whether they should take steps to regulate how lawyers use the Internet and devices in the trial process, particularly as to how it may affect the rights of jurors and the provision of a fair trial. There are already various jury selection apps for smartphones, laptops or tablet type devices that lawyers use to help them organize information about jurors to aid in selecting a jury that favors their side. 83 If these programs do not already do so, it can only be a matter of time before such apps also contain an Internet searching capability to instantly obtain online information available on each juror and update it throughout the trial. A whole range of issues are presented that require thought and careful collaboration between the bench and bar in developing a common understanding of what is appropriate http://www.npr.org/templates/story/story.php?storyId=134753777 (noting that the judge in the Bonds case “alluded to the media crush surrounding Blagojevich’s trial when she ruled that she would keep the jurors’ names secret until after their verdict”). 81. Wardlaw v. State, 185 Md. App. 440, 451, 971 A.2d 331, 337 (2009). 82. Dixon Jurors Ignore Judge, Continue Facebook Posts, WBALTV.com (Jan. 4, 2010), http://www.wbaltv. com/r/22117438/detail.html. 83. iJuror, Jury Tracker and Jury Duty are three apps that currently are available at low cost. See Ted Brooks, iPad Apps for Lawyers: iJuror, Jury Tracker, Jury Duty, WordPerfect Viewer, Ct. Tech. & Trial Presentation Blawg (Jan. 24, 2011), http://trial-technology.blogspot.com/2011/01/ipad-apps-forlawyers-ijuror.html. Reynolds Courts & Media Law Journal

143


Worlds Collide conduct. Among the issues are the following: 1) Should lawyers be allowed to use electronic devices in the courtroom to help screen prospective jurors during jury selection? 2) Should lawyers be allowed to continually check on sworn jurors during the trial by continuing to do Internet searches of jurors’ social media sites to see what activity, if any, is occurring. 3) If review or monitoring is done, what is the obligation of the lawyer during the trial to let the court know about it? 4) What is the obligation to disclose information discovered by such searches to opposing counsel? 5) Does the court have a role in protecting jurors from what jurors may perceive as intrusions into their private lives? 6) Does it make a difference if the review and investigation is being done by a non-lawyer, such as a party to the case, rather than a lawyer? 7) To what degree can lawyers interview jurors after trial without court knowledge and try to discover social media violations that can be turned into reasons to request a new trial? These issues have serious implications and deserve attention from the bench and bar.

Media in the Courtroom

T

here will also need to be consideration given to whether social media and the advances in electronic devices are changing the way that courts should regulate media and others in the courthouse and the courtroom, especially during high-profile trials. The issues are difficult because, with the advent of personal blogs and websites that are concerned with public issues, it is becoming ever more difficult to distinguish between those who are “journalists” and those who are “interested citizens”.

In the Dixon case, there was a media protocol order issued for the trial that worked well, but issues did arise.

For example, tweeting from the courtroom by journalists became an issue. At first, it was banned. After a while it seemed a little senseless, because the reporter would merely leave the courtroom and tweet from the hallway or courthouse steps and then return. Allowing journalists reporting on the case to tweet from the courtroom seems to make sense and should not be unduly disruptive of the proceedings.84 But how to fashion a rule limited to journalists presents a challenge for the courts, because other observers of a trial may also wish to use their electronic devices and may not see a valid distinction between their needs and desire to communicate and those of more traditional reporters. The on line activity of trial attendees who are not mainstream journalists can create issues that threaten to disrupt trials. In Texas, a trial attendee and environmental activist blogged that she had inside information on what the jury was thinking in a federal environmental case and wrote on her blog that she knew how the jury was split during deliberations. While the court felt that her blog entries “appeared to incorporate fantasy,” it allowed the corporate defendant to take her deposition because the court felt further investigation was warranted.85 84. Some judges around the country seem to be allowing tweeting from the courtroom in high profile cases, even when the parties object. See Judge Allows Twitter in Conn. Home Invasion Trial, Associated Press, Feb. 22, 2011, available at http://abcnews.go.com/Technology/wireStory?id=12973244. 85. United States v. Citgo Petroleum Corp., 2007 WL 4116066, 2007 U.S. Dist. Lexis 85341 (S.D. Tex. Nov. 19, 2007) (unreported).

144

Volume 1, Issue 2


Worlds Collide

Limits on Judges

J

udges have to not only figure out how to control the use of social media and the Internet by jurors, lawyers, and the media; they also have to determine the limits that they should impose on themselves. The dangers inherent in the new age do not disappear when one assumes the bench, and judges will have to make sure that their use of social media does not detract from the standards they must adhere to or impair the rights of litigants to obtain a full and fair trial.86 Courts are now beginning to address these issues, either in general guidance given to trial judges or in adjudications by ethical committees or boards.87 The Ohio Supreme Court’s Board of Commissioners on Grievances & Discipline recently set out extensive guidelines for Ohio state court judges to follow. Among the restrictions that the opinion noted judges must observe: • To comply with Jud. Cond. Rule 1.2., a judge must maintain dignity in every comment, photograph, and other information shared on the social networking site. • To comply with Jud. Cond. Rule 2.9 (A), a judge should not make comments on a social networking site about any matters pending before the judge – not to a party, not to a counsel for a party, not to anyone. • To comply with Jud. Cond. Rule 2.9 (C), a judge should not view a party’s or witnesses’ pages on a social networking site and should not use social networking sites to obtain information regarding the matter before the judge. • To comply with Jud. Cond. Rule 2.10, a judge should avoid making any comments on a social networking site about a pending or impending matter in any court. • To comply with Jud. Cond. Rule 2.11 (A)(1), a judge should disqualify himself or herself from a proceeding when the judge’s social networking relationship with a lawyer creates bias or prejudice concerning the lawyer or party. There is no bright-line rule: not all social relationships, online or otherwise, require a judge disqualification. • To comply with Jud. Cond. Rule 3.10, a judge may not give legal advice to others on a social networking site. 88 The opinion concludes: “To ensure compliance with all of these rules, a judge should be aware of the contents of his or her social networking page, be familiar with the social networking site policies and privacy controls, and be prudent in all interactions on a social networking site.”89 Besides judges having to be careful about their own social media use, they will also have to pay attention to their own liability to the extent that they attempt to get jurors or others involved in trials to disclose details of their social media sites as part of the voir dire process. A leading indicator of such a trend, perhaps, is a (now-dismissed) lawsuit in federal court in California by a former juror claiming that a trial judge violated his privacy by threatening to hold him in contempt unless he allowed Facebook to disclose

86. To traditionalists it may seem oxymoronic to link judges with social media sites, but one recent survey found that 40 percent of responding state court judges were on social media profile sites – about the same percentage as for the general population. See CCPIO, supra note 3, at 9. This surprising result may have something to do with the prevalence of elections for state court judge positions. Only nine percent of judges from non-elected jurisdictions reported they were on these sites. Id. 87. A discussion of judicial ethics advisory opinions on the subject from New York, South Carolina, Florida and Kentucky is included in the CCPIO report. Id. at 30-34. 88. See Opinion 2010-7 (Ohio Bd. Commr’s of Grievances & Disclip. Dec. 3, 2010), available at http://www. supremecourt.ohio.gov/Boards/BOC/Advisory_Opinions/2010//op_10-007.doc. 89. Id. Reynolds Courts & Media Law Journal

145


Worlds Collide his Facebook postings made during a trial.90 This raises the issue of whether a judge has the authority to order jurors to share with the court their primary email addresses in advance ( just as jurors must share their street addresses). And if so, does the judge have the authority to order the juror to turn over passwords upon reasonable suspicion of misconduct? Finally, under what circumstances should the judge be able to order disclosure for examination by the court (and possible reading into the record) of a juror’s social media or other electronic communications -Facebook postings, email exchanges, cell phone text messages, etc.?

Conclusion

T

he experience from the Dixon trial and the frequency of other trials having socalled “Google mistrial” problems merits our attention and action, but we should not overreact.91 The jury system has successfully survived great challenges in the past, including the addition of minorities and women to the formerly all-white male jury pool; the onslaught of prejudicial publicity during trials from newspapers, television, and radio; and the advent of highly complex or technical issues that threatened to outstrip juror competence. Each of these developments was prophesied at the time to be the end of the jury system as an effective instrument of justice. But despite the predictions of dire consequences at each development, the jury system has survived and, in my view, prospered by accommodating itself to these challenges. There is no reason to think that jury trials – with a little care and modest adjustments from the bench and bar – cannot survive the arrival of the digital native, along with her Facebook friends, Twitter followers, bloggers, and other electronic and digital creatures of the early 21st century.

90. Bridget Freeland, Juror’s Facebook Postings During Gang Trial Lead to Legal Morass & Suit Against Judge, Courthouse News Service, Feb. 15, 2011, http://www.courthousenews.com/2011/02/15/34186. htm. The case, Juror No. 1 v. California, Civil No. 11-00397 (E.D. Cal. Feb. 11, 2011), was dismissed in early April 2011; the complaint is available at http://www.courthousenews.com/2011/02/15/FacebookJuror.pdf 91. Professor Caren Myers Morrison has made this point in her recent law review article pointing out that the media reports on these cases tend to hype the cases beyond their legal significance with what she calls a “Jurors Gone Wild” spin that creates public interest and outrage but may not mean anything fundamental about jurors or the jury system. See Morrison, supra note 2.

146

Volume 1, Issue 2


That’s What “Friend” Is For? Judges, Social Networks and Standards for Recusal By Genelle I. Belmas Introduction: Judge Saffold and “lawmiss”

I

n spring 2010, an anonymous party writing under the name “lawmiss” posted comments on cleveland.com, a web site associated with The (Cleveland) Plain Dealer, on, among other issues, the case of Anthony Sowell, an accused serial murderer.1 Another comment by “lawmiss” attacking the mental state of a relative of one of the Plain Dealer’s journalists had been removed from cleveland.com because the comment had violated the web site’s policy of no personal attacks.2 In their investigation of the personal attack, newspaper staff determined that the email address associated with “lawmiss” was the personal email address of Cuyahoga County Common Pleas Judge Shirley Strickland Saffold: the judge then assigned to the Sowell serial murder case, which was among the issues on which “lawmiss” had commented.3 Upon further investigation, Plain Dealer reporters found that “lawmiss” had commented 80 times on the cleveland.com site. Some of these posts were on non-controversial areas like sports and celebrities, but there were also posts on the Sowell serial murder case before Judge Saffold, and several other legal cases.4 The judge’s 23-year-old daughter, Sydney, claimed to have used her mother’s email address to make the “lawmiss” posts on cleveland. com,5 but the Ohio Supreme Court still ordered Judge Saffold removed from the case to

1. The comments were posted in response to several articles on the web site about the Sowell case and other issues. The entire list of comments by lawmiss is available at http://connect.cleveland.com/user/ lawmiss/index.html. Sowell’s trial, before a different judge, is currently scheduled for June. See Leila Atassi, Cost of defense for serial killing suspect Anthony Sowell tops $530,000, Cleveland Plain Dealer, April 4, 2011, http://blog.cleveland.com/metro/2011/04/cost_of_defense_for_serial_kil.html. 2. Henry J. Gomez, Plain Dealer sparks ethical debate by unmasking anonymous Cleveland.com poster, Cleveland Plain Dealer, March 26, 2010, http://blog.cleveland.com/metro/2010/03/plain_dealer_ sparks_ethical_de.html. 3. Id. 4. Gabriel Baird, Web name linked to Judge Shirley Strickland Saffold has comments on other sites; some target Arabs, Asians, others, Cleveland Plain Dealer, May 9, 2010, http://blog.cleveland.com/metro/2010/05/lawmiss_comments_found_on_othe.html. 5. Id. Reynolds Courts & Media Law Journal

147


That’s What “Friend” Is For? avoid any appearance of impropriety.6 Although acting Chief Justice Paul Pfeiffer’s order did not rule that the defendant’s attorneys had established any actual wrongdoing by Judge Saffold, he noted that “even in cases where no evidence of actual bias or prejudice is apparent, disqualification is appropriate where the public’s confidence in the integrity of the judicial system is at stake.”7 When the Plain Dealer later evaluated records from Judge Saffold’s office computer, obtained by a public records request, the newspaper found that the computer was used to regularly visit other websites, and the “lawmiss” moniker was sometimes used to post comments on those sites.8 Some of these comments attributed to “lawmiss” were anti-Asian, anti-gay, and anti-Arab.9 While the U.S. Supreme Court has upheld the right of regular citizens to engage in anonymous commentary such as this,10 for a judge to do so calls into question the dispassion and impartiality of the entire judiciary. As acting Chief Justice Pfeiffer noted, the reassignment of the Sowell case was necessary “to avoid even an appearance of bias, prejudice, or impropriety, and to ensure the parties, their counsel, and the public the unquestioned neutrality of an impartial judge.”11

Social Media and the Law

W

hile the “lawmiss” situation was perhaps an easy case in which to support Judge Saffold’s removal from the case, it highlights the many issues that judges who use social networking sites such as Facebook, or social media sites like YouTube, encounter.

The Growth of Social Media Social media sites are growing at a rapid rate. According to one source, by March 2010, there were 200 million blogs worldwide, 450 million Facebook subscribers, 27 million tweets in every 24-hour period, and 1.2 billion YouTube views per day.12 Social media, according to one definition, are online communication sites which share most or all of the following characteristics: Participation: social media encourages contributions and feedback from everyone who is interested. It blurs the line between media and audience.

6. State of Ohio v. Sowell, Case No. 10-AP-036 (Ohio Apr. 22, 2010) ( judgment entry by Acting Chief Just. Paul E. Pfeifer), available at http://media.cleveland.com/pdextra/other/DOC042210.pdf. 7. Id., slip op. at 3. 8. Baird, supra note 4. 9. Id. For example one comment by “lawmiss” in response to a story about the Chinese volleyball team referred to Asians as “flat face morons.” Id. 10. See McIntyre v. Ohio, 514 U.S. 334, 342 (1995). 11. State of Ohio v. Sowell, supra note 6, at 4, citing In re Disqualification of Floyd, 101 Ohio St. 3d 1215, 1217-18, 2003-Ohio-7354. para. 10, 803 N.E.2d 816, 818-19 (2003). Judge Saffold and her daughter filed a $50 million lawsuit against the Plain Dealer and its Internet hosting company for breach of contract, promissory estoppel, and defamation, among other charges, for revealing information about the “lawmiss” screen name. Strickland-Saffold v. Plain Dealer Pub’g Co., CV-10-723512 (Ohio C.P., Cuyahoga County filed April 8, 2010) (complaint available at http://www.courthousenews.com/2010/04/08/ PlainDealer.pdf ). The suit was eventually dismissed against the newspaper, and the judge and her daughter reached a settlement with the Internet company. Saffolds dismiss lawsuit against Plain Dealer, settle with Advance Internet, Cleveland Plain Dealer, Dec. 31, 2010, http://blog.cleveland.com/ metro/2010/12/saffolds_dismiss_lawsuit_again.html. 12. Randy L. Dryer, Advising Your Clients (And You!) In the New World of Social Media: What Every Lawyer Should Know About Twitter, Facebook, YouTube, & Wikis, 23 Utah Bar J. 16, 16 (May/June 2010).

148

Volume 1, Issue 2


That’s What “Friend” Is For? Openness: most social media services are open to feedback and participation. They encourage voting, comments and the sharing of information. There are rarely any barriers to accessing and making use of content – password-protected content is frowned on. Conversation: whereas traditional media is about “broadcast” (content transmitted or distributed to an audience), social media is better seen as a two-way conversation. Community: social media allows communities to form quickly and communicate effectively. Communities share common interests, such as a love of photography, a political issue, or a favorite television show. Connectedness: most kinds of social media thrive on their connectedness, making use of links to other sites, resources and people.13

A similar characterization from the Judicial Conference of the United States defines social media as “online communities of people who share interests or activities, or who are interested in exploring the interests and activities of others.”14 In addition to web sites and services such as Facebook,15 MySpace,16 LinkedIn,17 Flickr18 and YouTube19, social media also includes blogs (weblogs) that permit users to comment on their content, micro-blogging services such as Twitter,20 and content sharing sites like the social bookmarking site Delicious.21 Sites like cleveland.com (the site operated by the Plain Dealer) and other web sites associated with traditional news operations like newspapers or television stations can be considered social media, because they provide users with the opportunity to comment (usually anonymously) on news stories and other items, and to react to comments made by others.

Judges Online Members of the legal community are experimenting in increasing numbers with social media as tools for campaigning, marketing, and exchanging information. Several judges have been identified as active participants in social networking sites,22 and 40 percent of judges 13. Antony Mayfield, What Is Social Media? (iCrossing e-book, 2008), at 5, http://www.icrossing.co.uk/ fileadmin/uploads/eBooks/What_is_Social_Media_iCrossing_ebook.pdf. See also Angela O’Brien, Are Attorneys and Judges One Tweet, Blog or Friend Request Away From Facing a Disciplinary Committee? 11 Loy. J. Pub. Int. L. 511, 512-14 (2010) (providing a brief discussion of social media types and uses). 14. Comm. on Codes of Conduct, Jud. Conf. of the U. S., Resource Packet for Developing Guidelines on Use of Social Media by Judicial Employees (2010), at 9. The committee defines these sites in the categories of social and professional networking, blogs, micro-blogging, wikis, social bookmarking, video sharing, threaded discussions, discussion boards and chat rooms. 15. www.facebook.com. 16. www.myspace.com. 17. www.linkedin.com. According to their “About Us” page, “LinkedIn operates the world’s largest professional network on the Internet with more than 100 million members in over 200 countries and territories.” About Us, LinkedIn Press Center, http://press.linkedin.com/about/. 18. www.flickr.com. 19. www.youtube.com. 20. www.twitter.com. 21. www.delicious.com. This site allows users to post bookmarks to interesting websites, sometimes with commentary. 22. Nicole D. Galli, Christopher D. Olszyk, Jr., & Jeffrey G. Wilhelm, Litigation Considerations Involving Social Media, 81 Pa. Bar Assn. Q. 59, 60-61 (2010). This article lists Judge Richard Clifton of the Ninth Circuit Court of Appeals, Judge John M. Ferren of the D.C. Circuit, Judge Deborah Cook of the Sixth Circuit and Judge Jennifer Elrod and Judge Edith Jones, both of the Fifth Circuit, as active users of social media. Reynolds Courts & Media Law Journal

149


That’s What “Friend” Is For? and court officials responding to a national survey stated that they were members of social networking sites, mostly Facebook.23 However, the survey respondents were wary of the use of social media in their professional lives, with nearly half disagreeing with the statement, “Judges can use social media profile sites, such as Facebook, in their professional lives without compromising professional conduct codes of ethics.”24 The report predicted that judicial ethics codes will soon be revisited and revised to account for the use of social media products.25 It is not difficult to imagine situations in which judges could use social media sites in perfect harmony with their judicial positions. In fact, at least one judge is on record suggesting that the appropriate use of social media can be helpful for the judiciary: Texas district court judge Susan Criss told an American Bar Association audience in 2009 that the “use of social media both professionally and personally can be tools that enrich the jobs of judges and lawyers and help them ‘do [their] job better,’ if used thoughtfully.”26 Another Texas district court judge, Gena Slaughter, recommended several positive uses for social networks, including professional development and political promotion, as well as a means of monitoring the behavior of attorneys and other parties before the court.27 If Judge Saffold’s email address had been used simply to comment on Cuyahoga County weather, for example, it would be hard to suggest that her judicial impartiality would be questioned. But it is easy to imagine situations in which judges could use social media sites in ways that suggest impropriety, and just as easy to imagine situations that seem innocuous on the surface but that could develop into problems. For example, if a judge comments online and publicly on the successes of the local college football team, what happens when that team falls on hard times, and the coach is let go and files a lawsuit for breach of contract that ends up on the judge’s docket? Does the judge’s past online commentary mandate that the judge recuse himself?

Caperton To the Rescue? The United States Supreme Court in 2009 decided a case in which a judge’s refusal to recuse himself was deemed a denial of the defendant’s due process rights. In Caperton v.

23. Conf. of Ct. Public Info. Officers, New Media and the Courts: The Current Status and a Look at the Future (2010), at 9, available at http://www.ccpio.org/documents/newmediaproject/ New-Media-and-the-Courts-Report.pdf. Of the 810 responses to this online survey, 254, or 31.4 percent, were considered to be from judicial officers. Id. at 65. 24. Id. at 9. 25. Id. at 7. 26. Judges All Atwitter Over New Media, ABANow, Aug. 2, 2009, http://www.abanow.org/2009/08/ judges-all-atwitter-over-new-media/. See also Miriam Rozen, Social Networks Help Judges Do Their Duty, Law Tech. News, Aug. 25, 2009, http://www.law.com/jsp/lawtechnologynews/PubArticleLTN. jsp?id=1202433293771; Dahlia Lithwick & Graham Vyse, Tweet Justice, Slate, April 30, 2010, http:// www.slate.com/id/2252544/ (noting that Judge Criss asks attorneys to “de-friend” her if they will be appearing before her). 27. Judge Gena Slaughter & John G. Browning, The Attorney and Social Media: Social Networking Dos and Don’ts for Lawyers and Judges, 73 Tex. B. J. 192, 193-94 (2010). Judge Slaughter gave several examples of monitoring individuals who are parties to cases before the court, including one Michigan judge who uses Facebook and MySpace pages to monitor offenders on probation; he sometimes finds images of unauthorized drug use on those pages. Id. at 194. See also Kathleen Elliott Vinson, The Blurred Boundaries of Social Networking in the Legal Field: Just “Face” It, 41 U. Mem. L. Rev. 355, 400 (2010) (reporting a judge’s use of Facebook to determine that an attorney had lied about a death in her family when requesting a continuance; the attorney’s Facebook pictures showed her partying rather than mourning).

150

Volume 1, Issue 2


That’s What “Friend” Is For? A.T. Massey Coal Co.,28 the Court, by a 5-4 vote, said that the Fourteenth Amendment was violated when the judge declined to recuse himself in a case in which one of the parties was the judge’s largest campaign contributor, who had contributed $3 million (300 percent more than the judge’s own campaign committee) to his re-election.29 The majority, led by Justice Anthony Kennedy, suggested that in this particular (extreme) case, the likelihood of bias was simply too high to be constitutionally acceptable.30 But in dissent, Chief Justice John Roberts claimed that the “probability of bias” standard articulated by the majority was simply too vague to be applied in future cases.31 Justice Antonin Scalia also wrote a brief dissent that lamented the Court’s “quixotic quest to right all wrongs and repair all imperfections through the Constitution”32 – which he believed cannot be done in cases of judicial recusal. Caperton – often referred to as “Massy Coal,” after the company that contributed to the judge’s campaign – did not involve social media; it was about campaign contributions. However, the purpose of this article is to look at the commentary and guidelines proposed in Caperton – both the Kennedy majority opinion and the Roberts dissent – to determine how their standards would apply to instances of judicial use of social media, and whether judicial ethics codes need to be adjusted to address judges’ use of social media sites and services. To what extent does Caperton suggest that judges’ use of social media results in a denial of a party’s due process rights under the Court’s new rule of the likelihood of actual bias? Should judicial codes of ethics be amended to reflect the appropriate use of social media by judges, and if so, how? The article will begin with a review of Caperton. This review will be followed by a discussion of several ethics board decisions and state bar recommendations that directly address the use of social media by judges. Next, the legal community’s response to the Caperton decision and developments in social networking use will be addressed. The article will then conclude with a model proposal and a few thoughts on the best way to proceed in the post-Caperton recusal environment.

The Caperton case

I

n Caperton, the issue was the recusal of a justice of the West Virginia Supreme Court of Appeals from a case in which one of the parties had donated a significant amount to the justice’s election campaign.33 Don Blankenship, chairman, president, and chief executive officer of Massey Coal, donated $3 million to the campaign of Brent Benjamin for the Supreme Court of Appeals of West Virginia: more than the total from all other supporters, and three times more than the candidate’s campaign committee had spent.34 After Ben-

28. 129 S. Ct. 2252, 173 L.Ed.2d 1208 (U.S. 2009). 29. Id. 129 S. Ct. at 2264. 30. Id. at 2265 (“On these extreme facts the probability of actual bias rises to an unconstitutional level.”). See also Jeffrey Stempel, Impeach Brent Benjamin Now!? Giving Adequate Attention to Failings of Judicial Impartiality, 47 San Diego L. Rev. 1, 8-9 (2010) (asserting that West Virginia Court of Appeals Chief Justice Brent Benjamin’s handling of the recusal issue in his ruling in the case, Caperton v. A.T. Massey Coal Co., Inc., 223 W.Va. 624, 679 S.E.2d 223, rev’d and remanded, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (U.S. 2009), was deeply flawed and in fact “calls into question his judicial competence, his judicial temperament (being too emotionally invested in the issue to view his situation with suitable dispassion), and even his integrity.”). 31. Caperton, 129 S. Ct. at 2269 (Roberts. J., dissenting). 32. Id. at 2275 (Scalia, J., dissenting). 33. Id. at 2257. 34. Id. Reynolds Courts & Media Law Journal

151


That’s What “Friend” Is For? jamin was elected in 2004, Massey Coal appealed a case in which the company had been found liable for $50 million in damages for, among other things, fraudulent misrepresentation, to the West Virginia Supreme Court of Appeals.35 Caperton moved to disqualify Justice Benjamin based on due process grounds and the West Virginia Code of Judicial Conduct, which provides in part that judges “shall avoid impropriety and the appearance of impropriety in all of the judge’s activities, and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”36 Justice Benjamin denied the motion, stating that he could find no reason to believe that he would be biased or unfair.37 In 2007, then, the court – with Justice Benjamin in the majority – reversed the findJustice Kennedy’s majority opinion ing against Massey on a 3-2 vote.38 Caperton noted that most cases of judicial then asked for a rehearing and the recusal of three justices, including Benjamin. Although recusal do not rise to the level of the other two justices recused themselves, constitutional concern. Benjamin did not.39 In 2008 the reconstituted court again reversed in favor of Massey.40 Justice Benjamin filed an opinion defending both the majority opinion’s merits and his decision to remain on the case, saying that a standard that relies on the “appearance” of bias “seems little more than an invitation to subject West Virginia’s justice system to the vagaries of the day.”41 In the U.S. Supreme Court, Justice Kennedy’s majority opinion noted that most cases of judicial recusal do not rise to the level of constitutional concern.42 He cited two leading cases in his analysis: Tumey v. Ohio,43 in which the Court established that a financial interest in a case would require recusal;44 and In re Murchison,45 in which recusal was held to be appropriate when a judge had a conflict arising from participation in an earlier proceeding.46 Kennedy was careful to point out that the Caperton case met all the “objective standards that require recusal when ‘the probability of actual bias on the part of the judge or decision-maker is too high to be constitutionally tolerable.’”47 Noting that the Court did not find actual bias on the part of Justice Benjamin, neverthe 35. Id. 36. W. Va. Code of Jud. Conduct Canon 2A (1993); Justice Benjamin suggested that the canon could be misinterpreted by removing the reference to “activities:” “That some form of action by a judge is necessary in context with the term ‘appearance of impropriety,’ is evident from the Commentary to Canon 2A which focuses on ‘irresponsible or improper conduct by judges.’ (emphasis added.).” Caperton v. A.T. Massey Coal Co., 223 W. Va. 624, 694 n. 13 (W. Va. 2008). 37. Caperton, 129 S. Ct. at 2258. 38. Caperton v. A.T. Massey Coal Co., Inc., 2007 WL 4150960 (W.Va. Nov 21, 2007) (depublished from Westlaw, available at http://www.state.wv.us/wvsca/docs/fall07/33350.pdf ), vacated, 223 W.Va. 624, 679 S.E.2d 223. (W. Va. 2008) . 39. Caperton, 129 S. Ct. at 2258. 40. Caperton v. A.T. Massey Coal Co., Inc., 223 W.Va. 624, 679 S.E.2d 223 (W.Va. 2008). 41. Caperton, 129 S. Ct. at 2259 (quoting Caperton v. A.T. Massey Coal Co., Inc., 223 W.Va. at 306, 679 S.E.2d at 707 (Benjamin, J., concurring). 42. Caperton, 129 S. Ct. at 2259. 43. 273 U.S. 510 (1927). 44. Id. at 523 (“a direct, personal, substantial, pecuniary interest” in a case would require recusal.). 45. 349 U.S. 133 (1955). 46. Id. at 133. 47. Caperton, 129 S. Ct. at 2257 (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)).

152

Volume 1, Issue 2


That’s What “Friend” Is For? less, Kennedy said, in implementing objective due process standards for recusal, “the Court has asked whether, ‘under a realistic appraisal of psychological tendencies and human weakness,’ the interest ‘poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.’”48 In this case, Kennedy said, there was a “serious risk of actual bias – based on objective and reasonable perceptions – when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”49 The risk of actual bias was high enough, based on the proportions and amounts of support Blankenship gave to Justice Benjamin’s campaign, that recusal was required to guarantee due process.50 Kennedy concluded by asserting again that this was an extreme case51 and that most issues of judicial recusal can be handled without resorting to due process claims, as Congress and the states may require more rigorous standards.52 As noted earlier, Justice Scalia’s short dissent mourned the Court’s attempt to apply constitutional doctrine in this area.53 But Chief Justice Roberts’ more lengthy dissent outlined a litany of problems with the majority opinion. He raised 40 questions that he believed were now left to the courts to decide on a Caperton motion, ranging from “How much money is too much money?,”54 to “What if the case involves a social or ideological issue rather than a financial one?”55 and “What if the judge voted against the supporter in many other cases?”56

Responses to Caperton It has been suggested that Caperton’s shift from the “appearance of impropriety” standard to the “likelihood of actual bias” standard is not merely semantic. One writer seems to suggest that the Caperton “actual bias” standard is actually a higher standard to meet: as he describes it, “An appearance-based standard focuses on the public’s perception of the fairness of the court, while a probability-based standard centers on a reasonable judge’s likelihood of actual bias.”57 This argument suggests that the Caperton evaluation is less a public evaluation than one to be undertaken by the judiciary itself – “the spotlight is directly on the judge, not on the observations of the public.”58 However, as the decision in Caperton made clear, Congress and the states are free to impose more stringent rules on their own judiciaries than those based on the Court’s application of the Constitution’s due process clause.59 A good argument can also be made, then, that the “appearance of impropriety” standard already in place in most states is a higher 48. Id. at 2263 (quoting Withrow, 421 U.S. at 47). 49. Id. at 2263-64. 50. Id. at 2264. 51. Id. at 2265 (“On these extreme facts the probability of actual bias rises to an unconstitutional level.”). 52. Id. at 2266. 53. Id. at 2275. 54. Id. at 2269. 55. Id. 56. Id. at 2270. 57. Dmitry Bam, Understanding Caperton: Judicial Disqualification Under the Due Process Clause, 42 McGeorge L. Rev. 65, 75 (2010). 58. Id. 59. Caperton, 129 S. Ct. at 2266 (“The Due Process Clause demarks only the outer boundaries of judicial disqualifications. Congress and the states, of course, remain free to impose more rigorous standards for judicial disqualification than those we find mandated here today.” (quoting Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 828 (1986) )). Reynolds Courts & Media Law Journal

153


That’s What “Friend” Is For? standard for judges to meet, as it does not require proof of actual impropriety or even a reasonable likelihood of impropriety – merely its appearance to a reasonable observer. Did the Court reach the “right” decision in Caperton? The reviews are mixed. On the one hand, some believe that Caperton “raised the due process floor to a level that better corresponds with our traditional, and perhaps aspirational, conception of due process, as expressed in judicial codes and statutes already in force.”60 One commentator notes that one result of the case is to make states more cognizant of the public’s eroding confidence in the judiciary and to encourage them to consider changing the ways in which judges are chosen to serve.61 Yet others disagree that Caperton provides meaningful guidance, claiming that the decision is paradoxical, applying a “likelihood of actual bias” standard but basing it on only one element of an election – campaign contributions – and not on any of a number of other elements that may have affected the election’s outcome.62 The Caperton case thus gives lower courts a new recusal mandate but no tools with which to make the determination of whether there is a likelihood of actual bias.63 One commentator writes that Caperton did not go far enough: it did not “make due process congruent with prevailing state and federal disqualification standards.”64 Moreover, the “appearance of impropriety” standard rejected by the Caperton Court is rooted in precedent and more practical in application.65 As another author suggests, “in explaining the new recusal rule, the Supreme Court should have been even more clear that appearances matter.”66 But, he adds, the Court has an opportunity to make Caperton matter: The Court has an opportunity to define the rule of law and the basic notions of due process, and it has an opportunity to shape a reform effort. Its actual ruling in Caperton could be wisely minimalist and even ambiguous, but its discussion of due process and fairness should be bold, direct, accessible, and inspiring.67

If the Court grants certorari to subsequent recusal cases, it has the power to effect reform throughout the judiciary. 60. Marie McManus Degnan, No Actual Bias Needed: The Intersection of Due Process and Statutory Recusal, 83 Temp. L. Rev. 225, 250 (2010). Degnan adds that the new standard “raises the due process floor to a level roughly equivalent to the recusal standard in all fifty states and the federal courts, thus aligning the definition of due process with widely held notions of fairness and impartiality.” Id. at 252. 61. James Sample, Court Reform Enters the Post-Caperton Era, 58 Drake L. Rev. 787, 818 (2010). Sample bases his assessment on the reform activities in several states (Wisconsin, Michigan, and West Virginia) after the Caperton decision. 62. Andrew L. Frey and Jeffrey A. Berger, A Solution in Search of a Problem: The Disconnect Between the Outcome in Caperton and the Circumstances of Justice Benjamin’s Election, 60 Syracuse L. Rev. 279, 280 (2010). “By focusing solely on the amount of money spent and mislabeling the way it was spent, the majority turned a blind eye to forces that reduced, or eliminated, that probability.” Id. at 288. 63. Id. at 289. 64. Jeffrey W. Stempel, Completing Caperton and Clarifying Common Sense Through Using the Right Standard for Constitutional Judicial Recusal, 29 Rev. Litig. 249, 251 (2010). Stempel provides a suggestion for the use of the case: “Of all the criticisms of Caperton, the practical problems attack is most easily accommodated by this article’s suggestion that it be considered a due process problem whenever a state jurist erroneously fails to recuse.” Id. at 292. 65. Jed Handelsman Shugerman, In Defense of Appearances: What Caperton v. Massey Should Have Said, 59 DePaul L. Rev. 529, 530 (2010). 66. Id. “Mere ‘appearances’ may seem superficial, but appearances are actually more substantial than they appear, so to speak. The ‘appearance of bias’ standard is just as firmly rooted in Anglo-American precedents, it is more practical for courts, and moreover, appearances of bias are real harms in themselves.” Id. at 541. 67. Id. at 553.

154

Volume 1, Issue 2


That’s What “Friend” Is For?

State Judicial Codes of Ethics and Judicial Ethics Board Decisions

W

hile the likelihood of actual bias revealed through use of social media by judges was not directly addressed by Caperton, judge’s social media activities could be a factor in whether a judge’s bias raises a constitutional concern. State judicial ethics boards have issued several advisory opinions that deal explicitly with judges’ use of social networking sites. The federal government and all the states have essentially adopted the American Bar Association Model Code of Judicial Conduct as their standard for judicial behavior,68 including Rule 2.11 of the Model Code, governing recusal.69 The current version of Rule 2.11 provides that: (A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances: (1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding. … (5) The judge, while a judge or a judicial candidate, has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy. 70

The Comments to this rule include a statement that the judge should recuse whenever his/ her impartiality could reasonably be questioned, regardless of whether the specifics of the actual rule are met.71 The federal statute, 28 U.S.C. § 455(a), also incorporates the Model 68. See Degnan, supra note 60, at 227. 69. All fifty states and Congress have adopted very close forms of Rule 2.11 (formerly Canon 3E in the 1990 version of the Model Code). See 28 U.S.C. § 455(a) (2006); Ala. Canon of Jud. Ethics 3C (2001); Alaska Code of Jud. Conduct Canon 3E (2010); Ariz. Code of Jud. Conduct R. 2.11 (2009); Ark. Code of Jud. Conduct R. 2.11 (2009); Cal. Code of Jud. Ethics Canon 3E (2009); Colo. Code of Jud. Conduct R. 2.11 (2010); Conn. Code of Jud. Conduct Canon 3(c) (1974); Del. Judges’ Code of Jud. Conduct Canon 3C (1994); Fla. Code of Jud. Conduct Canon 3E (2010); Ga. Code of Jud. Conduct Canon 3E (2004); Haw. Rev. Code of Jud. Conduct R. 2.11 (2008); Idaho Code of Jud. Conduct Canon 3E (2008); Ill. Code of Jud. Conduct Canon 3C (1993); Ind. Code of Jud. Conduct R. 2.11 (2010); Iowa Code of Jud. Conduct Canon 3C (2009); Kan. Code of Jud. Conduct R. 2.11 (2009); Ky. Code of Jud. Conduct Canon 3E (2003); La. Code of Jud. Conduct Canon 3C (2003); Me. Code of Jud. Conduct Canon 3E (2005); Md. Code of Jud. Conduct Canon 3D (2005); Mass. Code of Jud. Conduct Canon 3C (1998); Mich. Ct. R. § 2.003(C) (2010); Minn. Code of Jud. Conduct R. 2.11 (2009); Miss. Code of Jud. Conduct Canon 3E (2002); Mo. Code of Jud. Conduct Canon 3E (2004); Mont. Code of Jud. Conduct R. 2.12 (2008); Neb. Ct. R. § 5-203(E) (2008); Nev. Code of Jud. Conduct R. 2.11 (2010); N.H. Code of Jud. Conduct Canon 3E (2010); N.J. Code of Jud. Conduct Canon 3C (1994); N.M. Code of Jud. Conduct R. 21-400 (2004); N.Y. R. of the Chief Admin. Judge § 100.3(E) (2010); N.C. Code of Jud. Conduct Canon 3C (1998); N.D. Code of Jud. Conduct Canon 3E (2006); Ohio Code of Jud. Conduct Canon 3E (2009); Okla. Code of Jud. Conduct Canon 3E (2010); Or. Code of Jud. Conduct R. 2-106(A) (1996); Pa. Code of Jud. Conduct Canon 3C (2005); R.I. Code of Jud. Conduct Canon 3E (2009); S.C. Code of Jud. Conduct Canon 3E (2010); S.D. Code of Jud. Conduct Canon 3E (2006); Tenn. Code of Jud. Conduct Canon 3E (2002); Tex. Code of Jud. Conduct Canon 3D (2002); Utah Code of Jud. Conduct R. 2.11 (2010); Vt. Code of Jud. Conduct Canon 3E (1994); Canons of Jud. Conduct for Va. Canon 3E (2004); Wash. Code of Jud. Conduct Canon 3D (1995); W. Va. Code of Jud. Conduct Canon 3E (1993); Wis. Sup. Ct. R. 60.04(4) (2010); Wyo. Code of Jud. Conduct R. 2.11 (2009). 70. ABA Model Code of Jud. Conduct R. 2.11 (2007). The code is available at http://www.americanbar.org/ content/dam/aba/migrated/judicialethics/ABA_MCJC_approved.authcheckdam.pdf. 71. Id. at comment [1]. Reynolds Courts & Media Law Journal

155


That’s What “Friend” Is For? Code and echoes this language, mandating that a federal judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”72 None of these codes make any mention of social networks or social media. There are, however, suggested guidelines for the use of social media by judicial employees. The Committee on Codes of Conduct of the Judicial Conference of the United States published a 2010 resource packet for use by courts in drafting policies for their judicial employees, including, for example, judges’ staff and law clerks, staff attorneys, court executive employees (e.g., clerks of court), as well as employees who do not work directly for judges, such as those who work in a clerk’s office and probation officers.73 In formulating its own policy, the Judicial Conference recommends that each court should take into account the five canons of the Code of Conduct for Judicial Employees: upholding the integrity and independence of the judiciary and the employee’s office; avoiding impropriety and the appearance of impropriety; adhering to appropriate standards in performing office duties; avoiding the risk of outside activities conflicting with official duties; and refraining from political activity deemed inappropriate.74 The 2010 publication does not include an actual code but rather provides recommended standards and strategies for use by courts in developing their own policies. For example, the committee suggests that a court make policy restricting the use of social media, including whether such use is to be work-related only or may include personal activity; whether the policy should apply to anonymous activity; and which types of online activity should be included (not only using social media sites but also perhaps online surveys, podcasting and webcasting, or blogging or maintaining a website). The publication also states that education should be part of the court’s plan.75 It seems that no court has yet ruled on a recusal motion that resulted from a judge’s use of social media.76 However, one state judicial ethics board has censured a judge for inappropriate Facebook use, and several others have issued advisory opinions intended to guide judges in their use of social networks. At least one social network case (in Georgia, discussed below) was resolved by the judge resigning without the intervention of an outside board.

North Carolina In 2009, a North Carolina trial judge was reprimanded for an inappropriate Facebook relationship with an attorney and that attorney’s client before his court.77 State district court judge B. Carlton Terry presided over a child custody and support case in his jurisdiction.78 During the case, the judge and the attorneys for both parties discussed the Facebook website in the judge’s chambers: the mother’s attorney said that she did not have time for it, but the father’s attorney and the judge became Facebook friends.79 72. 28 U.S.C. § 455(a) (2006). 73. Comm. on Codes of Conduct, Jud. Conf. of the U.S, supra note 14, at 17. 74. Id. at 15. The Code of Conduct for Judicial Employees, which was put into effect in 1996 by the Judicial Conference of the United States, is available at http://www.uscourts.gov/rulesandpolicies/codesofconduct/codeconductjudicialemployees.aspx. 75. Id. at 13-14. 76. Lexis searches of “recus*” in the same paragraph as “social media” or as “social network” on April 14, 2011, resulted in no hits. 77. Public Reprimand of Terry, N.C. Jud. Stds. Comm., Inquiry No. 08-234 (April 1, 2009), available at http://www.aoc.state.nc.us/www/public/coa/jsc/publicreprimands/jsc08-234.pdf. 78. Id. at 1-2. 79. Id. at 2.

156

Volume 1, Issue 2


That’s What “Friend” Is For? During the course of the custody case, the judge and the attorneys met in chambers to discuss prior testimony that suggested that one party was having an affair, and the father’s attorney said, “I will have to see if I can prove a negative.”80 He posted the same sentiment on his Facebook page, and the judge posted in response to that comment that he had “two good parents to choose from.”81 Judge Terry also posted that he believed that the attorney “will be back in court” in reference to the case not yet being settled, and the father’s attorney posted in response, “I have a wise Judge.”82 Moreover, Judge Terry used Google, an Internet search engine, to find information about the mother’s photography business, and in so doing found numerous poems on her website. Before he announced his ruling in the custody case, he quoted one of the poems with minor changes, indicating that the poem gave him “hope for the kids” and made him believe that the mother “was not as bitter as he first thought.”83 The judge did not disclose that he had done this independent research.84 The North Carolina Judicial Standards Commission found that Judge Terry had ex parte communications with one party’s counsel in a matter pending before him, and that he was influenced by information that he had gathered independently by viewing a website, even though neither the website nor its contents were entered into evidence.85 Judge Terry’s actions, the Commission held, “constitute[d] conduct prejudicial to the administration of justice that brings the judicial office into disrepute.”86

Georgia While the North Carolina reprimand appears to be the only case where a judge was actually censured for use of social networks in violation of a state judicial ethics code, in 2010, a Georgia judge chose to resign as a result of his inappropriate use of Facebook. Although his situation did not result in an ethics committee advisory opinion or a court proceeding, it is an example of what would almost certainly qualify as an inappropriate use of social networks by judges. Judge Ernest “Bucky” Woods apparently initiated contact through Facebook with a criminal defendant who worked at a hair salon, saying that he was looking for a new barber.87 The two subsequently met in person, where she asked to borrow money from the judge for her rent; the judge also advised her on defense strategies for her case and for a friend facing drug charges.88 The case became public after the parents of the friend turned over the email communications with a complaint that Judge Woods had 80. Id. at 2. 81. Id. 82. Id. 83. Id. at 3. 84. Id. 85. Id. at 3-4. See also Sharon Nelson, John Simek & Jason Foltin, The Legal Implications of Social Networking, 22 Regent U.L. Rev. 1, 10 (2009-2010) (discussing the case); Ryan Jones, Judge reprimanded for discussing case on Facebook, The (Davidson County, N.C.) Dispatch, June 1, 2009, http://www. the-dispatch.com/article/20090601/ARTICLES/905319995/1005?Title=Judge-reprimanded-for-diseussing-case-on-Facebook. 86. Id. at 4. 87. Katheryn Hayes Tucker, Ga. Judge Steps Down Following Questions About Facebook Relationship With Defendant, Fulton County Daily Rep., Jan. 7, 2010, http://www.law.com/jsp/article. jsp?id=1202437652986&Ga_Judge_Steps_Down_Following_Questions_About_Facebook_Relationship_With_Defendant&slreturn=1&hbxlogin=1; see also Debra Cassens Weiss, Ga. Judge Resigns After Questions Raised About Facebook Contacts, ABA J., Jan. 7, 2010, http://www.abajournal.com/news/ article/ga._judge_resigns_after_questions_raised_about_facebook_contacts/. 88. Hayes Tucker, supra. Reynolds Courts & Media Law Journal

157


That’s What “Friend” Is For? unfairly jailed their son.89 Woods resigned after two newspapers made freedom of information requests for the e-mails.90 Several states ethics boards have issued advisory opinions that deal with judges and social networks. One of these opinions – Ohio’s – provides a useful model to consider for other states and the federal ethics code.

Florida In probably the most controversial of the state ethics board advisory opinions to date, the Florida Judicial Ethics Advisory Committee in 2009 said that a judge “friending” an attorney on Facebook is inappropriate under the state’s judicial ethics code.91 The committee said that the combination of the judge’s ability to exercise selection of attorneys as “friends” and the communication of those relationships to the public ran afoul of the code “because the judge, by so doing, conveys or permits others to convey the impression that they are in a special position to influence the judge.”92 The committee elaborated: The Committee believes that listing lawyers who may appear before the judge as “friends” on a judge’s social networking page reasonably conveys to others the impression that these lawyer “friends” are in a special position to influence the judge. This is not to say, of course, that simply because a lawyer is listed as a “friend” on a social networking site or because a lawyer is a friend of the judge, as the term friend is used in its traditional sense, means that this lawyer is, in fact, in a special position to influence the judge. The issue, however, is not whether the lawyer actually is in a position to influence the judge, but instead whether the proposed conduct, the identification of the lawyer as a “friend” on the social networking site, conveys the impression that the lawyer is in a position to influence the judge. The Committee concludes that such identification in a public forum of a lawyer who may appear before the judge does convey this impression and therefore is not permitted.93

The committee’s decision was not unanimous: the opinion noted that several members believed that the term “friend” is now viewed differently than it was prior to the rise of social networks, and the term now can be reasonably understood to mean an individual who is more like an acquaintance or a contact rather than someone in a position to garner special treatment from the judge.94 The committee added that situations in which a judge does not have to take any action to approve such relationships, such as “fan” sites supporting judicial candidacy on which the judge or his/her election committee cannot control who is able to join the fan site, would be permissible under the ethics code.95 As might be expected, this opinion generated significant debate. A New York Times editorial quoted a legal ethics expert saying that the opinion went too far and that the committee was being “hypersensitive.”96 More colorfully, Bill Haltom, a past president of the Tennessee Bar Association, called the opinion “nonsense on stilts,”97 adding that he was friends – in the traditional, social sense, not on Facebook – with many judges, including state supreme court judges, and that when he appears before them, their decisions either

89. Id. See also Judge Herbert B. Dixon Jr., The Black Hole Effect: When Internet Use and Judicial Ethics Collide, 49 Judges’ J. 38 (Fall 2010) for additional details on the Georgia case. 90. Hayes Tucker, supra note 87. 91. Florida Sup.Ct., Jud. Ethics Advisory Comm., Op. 2009-20 (2009). 92. Id. 93. Id. 94. Id. 95. Id. 96. John Schwartz, For Judges on Facebook, Friendship Has Limits, N.Y. Times, Dec. 11, 2009, at A25. 97. Bill Haltom, But Seriously Folks: If You Are a Judge, You Better Get a Dog, 46 Tenn. B.J. 36, 37 (Feb. 2010).

158

Volume 1, Issue 2


That’s What “Friend” Is For? for him or against him have nothing to do with his friendship with them.98 Still, some think this opinion hits the mark; a Florida county judge told the New York Times that the rule was “probably a good idea, just to avoid any perceptions of impropriety.”99

Kentucky In 2010, the Ethics Committee of the Kentucky Judiciary took a different approach, answering with a “Qualified Yes” the question, “May a Kentucky judge or justice, consistent with the Code of Judicial Conduct, participate in an Internet-based social networking site, such as Facebook, LinkedIn, MySpace or Twitter, and be ‘friends’ with various persons who appear before the judge in court, such as attorneys, social workers, and/ or law enforcement officials?”100 Agreeing with the minority in the Florida opinion, the Kentucky committee said, “The consensus of this Committee is that participation and listing alone do not violate the Kentucky Code of Judicial Conduct, and specifically do not ‘convey or permit others to convey the impression that they are in a special position to influence the judge.’”101 However, the opinion did not give free rein to rampant judicial social networking. The committee made it clear that it struggled with the decision of whether to answer with a “Qualified No” instead of a “Qualified Yes.”102 Tipping the balance was the fact that Kentucky judges are elected and as such “should not be isolated from the community in which they serve.”103 The committee admonished the judiciary that its members should be “extremely cautious”104 in their uses of social networks so as not to run afoul of the ethics code.

New York The summary of the 2009 New York advisory opinion on the question of judicial use of social networks reads: “Provided that the judge otherwise complies with the Rules Governing Judicial Conduct, he/she may join and make use of an Internet-based social network.”105 After outlining some of the reasons judges may want to make use of these networks (e.g., reconnecting with former college or even high school classmates, keeping in touch with distant family, monitoring the activities of minor children) and pointing out that judges often socialize with attorneys in person, the committee said that it could see nothing inherently problematic with judges joining social networks.106 The committee did suggest that judges need to keep abreast of new technological developments that may affect their responsibilities under the ethics rules in the future.107 98. Id. 99. Schwartz, supra note 96, at A25. 100. Ethics Committee of the Kentucky Judiciary, Formal Jud. Ethics Op. JE-119 (2010). 101. Id. (quoting Ky. Code of Jud. Conduct Canon 3E (2003)). 102. Id. 103. Id. 104. Id. 105. N.Y. Advisory Comm. on Jud. Ethics, Op. 08-176 (2009). 106. Id. (“In some ways, this is no different from adding the person’s contact information into the judge’s Rolodex or address book or speaking to them in a public setting.”). 107. Id. The committee took its own advice in a brief subsequent advisory opinion dealing with whether a judge could participate on a blog commenting on current events (see N.Y. Advisory Comm. on Jud. Ethics, Op. 10-138 (2011)). The committee noted that it had already commented on social network use and encouraged the inquiring judge to review that advisory opinion, stating that “The same is true with respect to judges using internet blogs as well.” Id. Reynolds Courts & Media Law Journal

159


That’s What “Friend” Is For?

South Carolina South Carolina’s brief 2009 advisory opinion states that “A judge may be a member of Facebook and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge’s position as magistrate.”108 The committee added that “[a]llowing a Magistrate to be a member of a social networking site allows the community to see how the judge communicates and gives the community a better understanding of the judge.”109

Ohio After first establishing that nothing in the Ohio judicial ethics code prohibits social friendships between judges and attorneys, even attorneys appearing before a judge, the Ohio Board of Commissioners on Grievances and Discipline in a 2010 advisory opinion produced a detailed and thoughtful list of guidelines addressing some appropriate (and inappropriate) uses of social networks for judges.110 The list includes several general rules, coupled with a rationale or explanation from the ethics code (only the rules are reproduced here): A judge must maintain dignity in every comment, photograph, and other information shared on the social network. … A judge must not foster social networking interactions with individuals or organizations if such communications will erode confidence in the independence of judicial decision making. … A judge should not make comments on a social networking site about any matters pending before the judge – not to a party, not to a counsel for a party, not to anyone. … A judge should not view a party’s or witness’ page on a social networking site and should not use social networking sites to obtain information regarding the matter before the judge. … A judge should avoid making any comments on a social networking site about pending or impending matters in any court. … A judge should disqualify himself or herself from a proceeding when the judge’s social networking relationship with a lawyer creates bias or prejudice concerning the lawyer for a party. Not all social relationships, online or otherwise, require a judge’s disqualification. … A judge may not give legal advice to others on a social networking site. … A judge should be aware of the contents of his or her social networking page, be familiar with the social networking site policies and privacy controls, and be prudent in all interactions on a social networking site.111

Other states may find this to be an excellent model. Not only does the opinion give concrete advice on the appropriate uses of social networking sites, it couples that advice with backup from the language in the state’s ethics code. For example, the admonition that judges should not interact with individuals or organizations if doing so would erode public confidence in judicial independence is followed by language tying the recommendation to particular elements of the ethics code and giving an example: 108. S.C. Advisory Comm. on Stds. of Jud. Conduct, Op. 17-2009 (2009). 109. Id. 110. Ohio Bd. of Comm’rs on Grievances & Discipline, Op. 2010-7 (2010). 111. Id.

160

Volume 1, Issue 2


That’s What “Friend” Is For? As required by Jud. Cond. Rule 2.4(C), a judge must not convey the impression that any person or organization is in a position to influence the judge; and must not permit others to convey that impression. For example, frequent and specific social networking communications with advocacy groups interested in matters before the court may convey such impression of external influence.112

Discussion: Caperton and Implications for Social Network Use

A

s previously noted, Chief Justice Roberts’ dissent in Caperton included several questions that he said courts would have to consider in applying the majority’s “likelihood of actual bias” standard.113 While most of the questions in Caperton were framed in electioneering or finance terms, inquiries like those Roberts raised in questions 9 and 21—“What if the case involves a social or ideological issue rather than a financial one?”114 and, “Does close personal friendship between a judge and a party or lawyer now give rise to a probability of bias?”115—suggest that there are situations wherein money may not be the sole determinant of whether a judge ought to recuse. The issues Roberts raises in these questions arguably reflect precisely the sorts of positions and relationships that social media not only encourage, but make public, and could potentially include activities as seemingly innocuous as “friending” a colleague or “liking” a politically-motivated post. There has not been much discussion about judges’ uses of social networking in the legal literature; a few such articles have been referenced here.116 But no author to date has provided an analysis of Caperton motions in light of judges’ use of social networking sites (probably because the case is relatively new and as yet largely untested), and there are few recommendations in that literature for resolving issues that will inevitably arise if the number of social networking sites and their participants continues to rise. What follows is a possible model for states and Congress to use in evaluating whether to revisit and revise their ethics codes to address judges’ use of social networking sites and how to position those uses in a way that comports with the Caperton and state recusal standards. As Chief Justice Roberts suggests, some of the questions raised by the majority opinion in Caperton have to do with ideological issues and personal friendships – under what circumstances do these give rise to the need for a judge to recuse? Most of the state ethics boards’ advisory opinions (with the notable exception of Florida, which itself was not a unanimous opinion) stress that the issue is not whether a judge participates, but the circumstances of that participation – that is, how the judge interacts with others on social networking sites. It seems reasonable to construct a continuum of potential uses of social media and position individual situations along this continuum for purposes of evaluating recommendations to recuse. The list below is an attempt to categorize common uses of social networks and their implications for recusal. A list like this, perhaps modeled on the Ohio advisory opinion, could be included in the Comments for the Model Code Rule 2.11 governing judicial recusal, coupled with a call for education on types and appropriate judicial uses of social networks and other social media sites. Regardless of whether a state uses the “likelihood of actual bias” standard articulated in Caperton or the traditional “appearance of impropriety” standard, this list can help the judiciary and ethics boards determine what

112. Id. 113. See supra text accompanying notes 54-56. 114. Id. at 2269. 115. Id. at 2270. 116. See, e.g., Galli, Olszyk & Wilhelm, supra note 22; Slaughter & Browning, supra note 27; Vinson, supra note 27; Nelson, Simek & Foltin, supra note 85. Reynolds Courts & Media Law Journal

161


That’s What “Friend” Is For? uses of social networking may raise the potential for a recusal motion.117

Facebook “Friending” At the “acceptable” end, simple “friending”— the process by which two individuals’ accounts become linked on Facebook— probably does not raise the likelihood of bias or a significant appearance of impropriety. A mere link between two accounts, not unlike a face-to-face casual acquaintance, would not raise significant due process concerns. It seems reasonable to construct In this same category might be the posting of family pictures on Facebook or Flickr a continuum of potential uses of (assuming that attorneys or parties in cases social media ... for purposes of before the judge do not appear in the imevaluating recommendations ages), and commenting on non-political or non-controversial issues (e.g., the weather). to recuse. This recommendation comports with the language in the Model Code governing acceptance of gifts; Rule 3.13 says that the judge may accept gifts of “ordinary social hospitality” without reporting them.118 It is not a stretch to suggest that merely “friending” an attorney or other individual is an excercise of ordinary social hospitality without a material exchange.

Commenting on Potentially Controversial Issues (E.G., Sports Teams) Generally, comments on sports teams, celebrities, local developments, and the like will not result in a likelihood of bias or the appearance of impropriety. However, there is the potential for an interaction that seems mundane or non-controversial at the time to develop over time into a more problematic situation. For example, a judge “tweets” on his Twitter account on how nice it will be to have a new shopping mall nearer to his home than the one he usually frequents. Two months later, the mall developer is before the judge on a dispute with a building contractor. The savvy attorney for the contractor finds the judge’s innocuous online communication and uses it to demand a recusal based on the appearance of impropriety. Would the reasonable person believe that the single tweet is inappropriate? Probably not, and the judge would likely not decide to recuse. However, if the judge made several tweets or posts on a social networking site expressing his pleasure in the mall’s development and stating how much he was looking forward to not having to drive so far to do his shopping, the answer becomes less clear.

Campaign Communication According to the Conference of Court Public Information Officers study discussed earlier,119 most judges who engage in social media use do so because they are in one of the

117. Bam, supra note 57, suggests that Caperton is largely irrelevant unless states voluntarily make procedural changes to their recusal processes: “If states combine Caperton’s substantive probability-of-bias standard with a more aggressive procedural approach, the combination could increase in [sic] the public’s confidence in the courts.” Bam at 81. 118. ABA Model Code of Jud. Conduct R. 3.13(B)(3) (2007). 119. See supra text accompanying notes 23-25.

162

Volume 1, Issue 2


That’s What “Friend” Is For? 39 states120 that use elections to select or retain judges.121 There are several issues here. First, how appropriate is it for the judge to personally interact on his/her own social media site dedicated to his/her election or re-election, or should that be left to campaign staff? Second, if the judge engages in commentary on state or local issues on the site as part of the election bid, and those issues come before his/her court after he/she is elected, what standards should be used to determine whether the activity would now appear improper? Much has already been written on the nexus between judicial campaigns and communications, and campaign contributions and the appropriateness of recusal.122 Suffice it to say, campaign communications are somewhere in the middle of the continuum of appropriate uses of social networks by judges because of the potential for topics and situations about which the judge has written to appear before that judge in court. The U.S. Supreme Court has provided some guidance in the area of judicial election speech. In Republican Party of Minnesota v. White,123 the Court ruled that a Minnesota judicial ethics rule prohibiting judicial candidates from discussing issues which may come before the judicial office they were seeking (the “announce clause”)124 violated the Constitution’s free speech previsions. The Court said in a 5-4 decision that the announce clause must survive a strict scrutiny test, and that it could not do.125 Writing for the majority, Justice Scalia came down hard on the announce clause, claiming that far from meeting the strict scrutiny standard, it “is barely tailored to serve that interest [in judicial impartiality] at all.”126 He added, “There is an obvious tension between the article of Minnesota’s popularly approved Constitution[,] which provides that judges shall be elected, and the Minnesota Supreme Court’s announce clause[,] which places most subjects of interest to the voters off limits.”127 Judicial elections require the candidate to mount a campaign for the position, and as such, the candidate will necessarily have to participate in some form of campaign speech. Social networking is an ideal way to reach voters effectively and inexpen 120. See Amer. Judicature Soc., Judicial Selection in the States: Appellate and General Jurisdiction Courts (2009), available at http://www.judicialselection.us/uploads/documents/Judicial_Selection_Charts_1196376173077.pdf. The figure cited here was calculated by counting all states with an “x” in the “non-partisan election” or “partisan election” columns, and any state with a retention election designation in the “method of retention” column. 121. Conf. of Ct. Public Info. Officers, supra note 23, at 9. 122. See, e.g., Genelle I. Belmas and Jason M. Shepard, Speaking from the Bench: Judicial Campaigns, Judges’ Speech, and the First Amendment, 58 Drake L. Rev. 709 (2010); David Goldberger, The Power of Special Interest Groups to Overwhelm Judicial Election Campaigns: The Troublesome Interaction Between the Code of Judicial Conduct, Campaign Finance Laws, and the First Amendment, 72 U. Cin. L. Rev. 1 (2003); David K. Stott, Zero-Sum Judicial Elections: Balancing Free Speech and Impartiality Through Recusal Reform, 2009 B.Y.U.L. Rev. 481 (2009); Molly McLucas, The Need for Effective Recusal Standards for an Elected Judiciary, 42 Loy. L.A. L. Rev. 671 (2009); Matthew D. Besser, May I Be Recused? The Tension Between Judicial Campaign Speech and Recusal After Republican Party of Minnesota v. White, 64 Ohio St. L.J. 1197 (2003); Andrew L. Kaufman, Judicial Correctness Meets Constitutional Correctness: Section 2c of the Code of Judicial Conduct, 32 Hofstra L. Rev. 1293 (2004). 123. 536 U.S. 765 (2002). 124. Id. at 768. 125. Id. at 774-75 (“Under the strict-scrutiny test, respondents have the burden to prove that the announce clause is (1) narrowly tailored, to serve (2) a compelling state interest.”) 126. Id at 776 (emphasis in original). 127. Id. at 787. See also Bauer v. Shepard, 620 F. 3d 704 (7th Cir. 2010), cert. denied, No. 10-425, 2011 WL 1631059, 79 USLW 3228 (U.S. May 2, 2011) (finding provisions of Indiana’s judicial conduct code barring judges from making “commitments that could compromise impartiality” not overbroad under First Amendment). Reynolds Courts & Media Law Journal

163


That’s What “Friend” Is For? sively; one judge called Facebook “an amazing tool to get my message out.”128 A judge’s personal use of social media during a campaign might reasonably be considered to be covered by the White case; as Scalia noted there, the First Amendment does not permit “leaving the principle of elections in place while preventing candidates from discussing what the elections are about.”129 It is almost unthinkable that a candidate for any political office would pass up the opportunity to use social media to reach potential voters, and it is not a far stretch to assume that White’s protection of judges’ speech during campaigns would apply to newer forms of online communication, as well as traditional campaign literature (which is what White focused on130) and television commercials. But it is important to distinguish between restrictions on speech during judicial campaigns and a requirement that judges, once elected, recuse themselves from cases in which their prior campaign statements may cast doubt on their ability to fairly judge a particular case before them. Justice Kennedy pointed out this difference in his concurrence in White: Minnesota may choose to have an elected judiciary. It may strive to define those characteristics that exemplify judicial excellence. It may enshrine its definitions in a code of judicial conduct. It may adopt recusal standards more rigorous than due process requires, and censure judges who violate these standards. What Minnesota may not do, however, is censor what the people hear as they undertake to decide for themselves which candidate is most likely to be an exemplary judicial officer.131

It is in the context of campaign contributions and communications that the differences between the “likelihood of bias” and the “appearance of impropriety” standards become most critical. While mere participation in partisan politics may not generally give rise to an actual likelihood of bias, under a more stringent standard of the appearance of impropriety, judges may find themselves asked to recuse in cases that involve the political stances of their parties or their own campaigns. However, it should also be noted that not all communication about cases before the judge is necessarily cause for recusal. As one commentator points out, the Model Code allows judges to comment in some situations without censure: “a judge is given necessary flexibility to handle public exposure of cases in a manner that can be individualized to suit the exact circumstances arising from each case.”132

Case Commentary and Ex Parte Communications At the other end of the continuum are the cases for which a bias analysis will typically favor recusal. They tend to be more clear-cut because they involve communications that would be prohibited in a non-social media context, such as ex parte communications or commentary on pending or impending litigation. The North Carolina judge censured for his ex parte communication over Facebook with a defendant is an excellent example. Judge Saffold’s alleged anonymous communication about cases before her court would be another example. It may also be appropriate to include social media communications that reveal judges’ biases in this category. However, such communications have First Amendment implications that should not be ignored. Whether a communication is indicative of a likelihood of bias must be evaluated against a judge’s First Amendment rights. If a judge is never asked

128. Schwartz, supra note 96. 129. White, 536 U.S. at 788. 130. Id. at 768. 131. Id. at 794 (Kennedy, J., concurring). 132. Summary Guide to the Courts and Media, 1 Reynolds Cts. & Media L. J. 49, 100 (2011).

164

Volume 1, Issue 2


That’s What “Friend” Is For? to rule in a case in which his/her biases are germane, the speech should be protected.133 If, however, the judge is asked to rule in such a case, it would be appropriate to examine that communication for a likelihood of bias. There are examples of expressions of bias by judges that have not resulted in censure. For example, in 2002 the Mississippi Supreme Court refused to discipline a justice of the peace who had written a letter to a newspaper and given an interview on a radio show in which he expressed disbelief at state legislatures that had passed same-sex marriage laws and added that “gays and lesbians should be put in some type of mental institute” [sic].134 The judge argued that his point of view was based in his Christian beliefs and cited the U.S. Supreme Court’s ruling protecting speech by judicial candidates135 in defense of his First Amendment rights. The Mississippi Supreme Court agreed, characterizing the speech as religious commentary and adding: Allowing – that is to say, forcing – judges to conceal their prejudice against gays and lesbians would surely lead to trials with unsuspecting gays or lesbians appearing before a partial judge. Unaware of the prejudice and not knowing they should seek recusal, this surely would not work to provide a fair and impartial court to those litigants.136

The Mississippi Supreme Court also acknowledged that gay men and lesbians will likely seek recusals if they were to come before this judge’s court.137 While not a recusal case, the Mississippi decision illustrates the problems inherent in balancing First Amendment concerns with the need for an impartial, dispassionate judiciary. As the numbers and types of social networking and media outlets continue to rise, it will be vital for the judiciary to address the appropriate uses of social media, whether by amending the Model Code and other ethics codes, by engaging in an education campaign for legal professionals, and/or by continuing to issue advisory opinions.138 All three options are recommended here. While it would be easy to recommend a total ban on the use of any social media by judges, as Florida has done, that is an extreme solution to a currently small problem. It remains to be seen whether Chief Justice Roberts’ fears about a potential deluge of Caperton recusal motions comes to pass. While advisory opinions and codes provide useful guidelines, it is not unreasonable to suggest that these guidelines be amended and updated as technological and social developments occur. The recommendations in this section are recommendations to do just that – not to throw the codes out, nor amend their primary tenets, but to add illustrations to help well-meaning judges do the right thing. The Ohio ethics board advisory opinion, coupled with the continuum outlined above, offers a good starting point. 133. This was the position taken by the Mississippi Supreme Court in Miss. Comm’n on Jud. Performance v. Wilkerson, 876 So. 2d 1006 (Miss. 2004), discussed infra. 134. Tobin A. Sparling, Keeping up Appearances: The Constitutionality of the Model Code of Judicial Conduct’s Prohibition of Extrajudicial Speech Creating the Appearance of Bias, 19 Geo. J. Legal Ethics 441, 461-62 (2006). The full letter sent by the judge is reproduced there. 135. Republican Party of Minnesota v. White, 536 U.S. 765 (2002). 136. Miss. Comm’n on Jud. Performance v. Wilkerson, 876 So. 2d 1006, 1015 (Miss. 2004). See also Richard M. Esenberg, If You Speak Up, Must You Stand Down: Caperton and Its Limits, 45 Wake Forest L. Rev. 1287, 1329-30 (2010); and Sparling, supra note 134 at 462-64, for additional commentary on the Wilkerson case. 137. Wilkerson, 876 So. 2d at 1015 (“We feel obliged to point out that, having publicly expressed his view that ‘gays and lesbians should be put in some type of mental institute,’ Judge Wilkerson will doubtless face a recusal motion from every gay and lesbian citizen who visits his court.”). 138. But see O’Brien, supra note 13, at 529 (stating that the current applications of ethics codes to inappropriate uses of social networks by judges are sufficient, and no new ethics rules are necessary). Reynolds Courts & Media Law Journal

165


That’s What “Friend” Is For?

Conclusion

T

he judiciary is under mounting public scrutiny and escalating attacks on its decisions, impartiality, and ethics. While attacks on the judiciary are not new, first arising in the Jeffersonian era,139 they are on the rise. Nasty and partisan judicial elections, including a November 2010 Iowa retention election that for the first time resulted in the ouster of three state supreme court justices,140 are indicative of the rise of vocal and strident political voices dominating judicial elections. Former Supreme Court Justice Sandra Day O’Connor in 2006 lamented the increase in assaults on the judiciary, noting that “the breadth and intensity of rage currently being leveled at the judiciary may be unmatched in American history.”141 Not even the highest court in the nation is immune from calls for transparency and reform: in February 2011, 107 law professors from law schools all over the country signed a letter to members of the Senate and House Judiciary Committees calling for reforms in Supreme Court ethics rules, particularly those governing recusal.142 The professors claimed that “the opacity and non-reviewability of this [recusal] process erodes public confidence in the integrity of the Court.”143 The letter recommended four legislative responses to the lack of transparency: require the application of the federal judicial ethics code to the Supreme Court; establish procedures to enforce that code’s standards to the justices; require a written opinion when a justice denies a motion to recuse; and provide a procedure for review of a justice’s refusal to recuse (or require the Court to develop one).144 The New York Times opined that the proposal was “a good start,” adding that “questions about the court’s impartiality are too serious to ignore.”145 Shortly after the letter was made public, two House members introduced a bill based on its suggested reforms.146 Yet, as one commentator points out, the Internet has the potential to increase judicial transparency, with a flood of information available just a Google search away.147 Does this plethora of facts make it more likely that any small piece of information posted, tweeted, or uploaded by a judge will necessarily give rise to a motion for recusal, and will judges feel compelled to recuse based on these snippets? 139. Justice Ming W. Chin, Judicial Independence: Under Attack Again? 61 Hastings L.J. 1345, 1346 (2010) (“[A]ttacks on judicial independence are almost as old as the American Republic itself; they date back at least to 1805, when President Jefferson tried, but failed, to use the impeachment procedure to remove United States Supreme Court Justice Samuel Chase, in part because of the content of his decisions.”). 140. The justices had voted to strike down a law prohibiting same-sex marriages. See Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009). For discussion of the judges’ removal, see Ashby Jones, Judgeless in Iowa: Making Sense of Tuesday’s Judicial Ouster, Wall St. J. Law Blog, Nov. 3, 2010, http://blogs.wsj.com/ law/2010/11/03/judgeless-in-iowa-making-sense-of-tuesdays-judicial-ouster/. University of Iowa law professor Todd Pettys explained the vote, the first such result in state history: “But there’s long been an understanding that you retained the judges unless they appeared unethical or immoral or incompetent, not because you disagreed with a particular ruling. This notion of singling them out because they disagreed with a particular ruling, well, that was new with us.” 141. Sandra Day O’Connor, Op-Ed., The Threat to Judicial Independence, Wall St. J., Sept. 27, 2006, at A18. 142. Alliance for Justice, Alliance for Justice Joins Law Professors in Calling for Congress to Mandate Ethics Reforms in the Supreme Court, Feb. 24, 2011, http://www.afj.org/press/02242011.html. The letter is available at http://www.afj.org/judicial_ethics_sign_on_letter.pdf. 143. Alliance for Justice letter, id., at 2. 144. Id. at 2-3. 145. Editorial, The Court’s Recusal Problem, N.Y. Times, Mar. 16, 2011, at A30. 146. See Supreme Court Transparency and Disclosure Act, H.R. 862, 112th Cong. § 1 (2011). 147. Sparling, supra note 134, at 485. Sparling adds, “Not only have the Internet, television, radio, and the popular press given the public more access to information about judges, they have also whet the people’s appetite to receive it by bringing the courts closer to them.” Id.

166

Volume 1, Issue 2


That’s What “Friend” Is For? Second Circuit Judge Roger Miner, writing before the Supreme Court’s decision in Caperton, mused that the trend seems to be toward erring on the side of caution when dealing with recusal, rather than exercising the traditional “duty to sit” on cases.148 He bemoaned this development, saying, “I do not think that this trend is a desirable one, for it will lead inevitably to a presumption in favor of recusal, with a concomitant burden upon the judge to rebut the presumption.”149 The judiciary needs to guard against this presumption of recusal in most social media use situations. Not every Facebook “friend” relationship or judicial tweet should result in a successful recusal motion. Such actions do not meet even the most stringent appearance of impropriety standards currently in state ethics codes (except perhaps Florida), to say nothing of the due process minimums established in Caperton. While there is always the potential for abuse and the likelihood of actual bias, as defined by Caperton, most uses of social media by judges are unlikely to rise to this level. An addition to the Model Code, perhaps in the form of comments to Rule 2.11 modeled on the Ohio advisory opinion’s thoughtful and detailed list, coupled with additional and ongoing education for everyone in the legal profession, from judges and their staffs, to attorneys and their clients, should result in fewer recusal requests resulting from judges’ social network participation.

148. Roger J. Miner, Judicial Ethics in the Twenty-First Century: Tracing the Trends, 32 Hofstra L. Rev. 1107, 1120 (2004). Judge Miner was not as pessimistic as some about the state of the ethics of the judiciary when writing in 2004, but he added a call for more transparency in judicial disciplinary proceedings: “Secrecy is usually not desirable in matters of this kind, and I believe that open proceedings would go far toward restoring public confidence in the judiciary.” Id. at 1136. 149. Id. at 1120. Reynolds Courts & Media Law Journal

167


That’s What “Friend” Is For?

168

Volume 1, Issue 2


Untangling the Web:

How Courts Should Respond to Juries Using the Internet for Research Gareth S. Lacy When lawyers speak about courtroom technology, they are typically debating the merits of making their presentations in Powerpoint.1

O

ne quarter of Americans get news via their cell phones.2 Amazon’s Kindle e-reader allows readers to carry thousands of novels and access the Internet with a single notepad-sized device. Apple’s iPad is one of the fastest selling new products and Windowsbased “slate PCs” are projected to be just as popular.3 As jurors bring these devices into the courtroom, they are causing concern amongst judges and attorneys.4 Courts have been wholly unprepared for this new wave of immediate access to useful information. In recent years, several courts have ordered mistrials after discovering jurors had accessed Wikipedia or conducted other Internet research during trial.5 With nearly 58 million U.S. cell-phone users accessing the mobile Internet on a daily basis,6 it is critical that courts respond quickly and effectively to this increased use of the Internet during trial. 1. Nancy S. Marder, Juries and Technology: Equipping Jurors for the Twenty-First Century, 66 Brook. L. Rev. 1257, 1273 (2001). 2. Kristen Purcell, et al., Understanding the Participatory News Consumer, Pew Research Center 5 (Mar. 1, 2010), http://www.pewinternet.org/~/media/Files/Reports/2010/PIP_Understanding_the_ Participatory_News_Consumer.pdf. 3. Sarah Jacobsson Purewa, iPad: Fastest-Selling Electronic Device…Ever, CIO (Oct. 5, 2010), http:// www.cio.com/article/621921/IPad_Fastest_Selling_Electronic_Device_8230_Ever (iPad adoption rates faster than DVD player); Edwin Klee, Microsoft Looks to Media Center as Windows Slate Savior?, Ubergizmo (Oct 6, 2010), http://www.ubergizmo.com/2010/10/microsoft-looks-to-media-center-aswindows-slate-savior/. 4. See, e.g., Ellen Brickman, et al., How Juror Internet Use Has Changed the American Jury Trial, 1 J. Ct. Innovation 287 (2008), http://www.courtinnovation.org/sites/default/files/documents/JournalCCI_ Fall08.pdf; Michael Hoenig, Juror misconduct on the Internet, N.Y. L.J., Oct. 8, 2009. 5. See Eric Robinson, Courts In Colorado, Maryland, New Jersey, Florida Declare Mistrials After Juror Internet Research, Citizen Media Law Project Blog (Jan. 25, 2010), http://www.citmedialaw.org/ blog/2010/courts-colorado-maryland-new-jersey-florida-declare-mistrials-after-juror-internet-research; John Schwartz, As Jurors Turn to Web, Mistrials Are Popping Up, N.Y. Times, Mar. 18, 2009, http://www.nytimes.com/2009/03/18/us/18juries.html. 6. Sarah Radwanick, The 2010 Mobile Year in Review, at 23 (Feb. 14, 2011) (unpublished report from comScore, Inc.), http://www.comscore.com/Press_Events/Presentations_Whitepapers/2011/2010_ Mobile_Year_in_Review. Reynolds Courts & Media Law Journal

169


Untangling the Web This article will first analyze judicial opinions involving juror’s use of outside information including traditional print sources and Internet research. Second, this Article will explain why the prevailing response to this increasing use of outside information—“just say no”—will be increasingly insufficient. Third, the underlying assumption that access to outside information is always harmful will be questioned. Fourth, this Article will argue that denying useful tools and information is unwise in the face of increasingly complex trials.

How Jurors Access Outside Information During Trials

F

or decades, despite jury instructions and admonishments to the contrary, jurors have searched for outside information during trials by reading newspapers or accessing encyclopedias and other reference materials.7 Internet research raises the same legal issues as those traditional print information sources, but the Internet makes access to this information easier, the volume of information greater, and verification of its accuracy sometimes more difficult. Despite these important differences, it is useful to recognize that when jurors conduct Internet research during trial, this raises issues that courts have been addressing for a long time. This section surveys how courts have responded when jurors access non-Internet information during trial and then examines cases in which Internet research became an issue.

Traditional Print Sources It is nothing new for judges to admonish juries not to conduct outside research during a trial. Many courts have considered it misconduct to, for example, look up information about a case in a newspaper or to gather information from an encyclopedia. The basic rationale for prohibiting such activities is that juries should only consider facts introduced into evidence and that each party should have an opportunity to cross-examine witnesses and object to any jury instructions. For example, Fitzpatrick v. Allen upheld a new trial in a medical malpractice lawsuit over a child’s cerebral palsy when a juror consulted a medical encyclopedia and several jurors read or heard passages stating that the cause of cerebral palsy was unknown.8 7. See e.g., In re Estate of Cory, 169 N.W.2d 837, 846 (Iowa 1969) (dictionary); Bellows Falls Vill. Corp. v. State Highway Bd., 190 A.2d 695, 698 (Vt. 1963) (newspaper); Aiken v. Dunn, 147 N.Y.S.2d 450, 452 (N.Y. Sup. Ct. 1955) (book). 8. 575 N.E.2d 750, 753 (Mass. 1991), accord Adkins v. Aluminum Co. of America, 750 P.2d 1257, 126264 (Wash. 1988) (holding that when jurors obtain a dictionary from the bailiff to look up the terms “negligence” and “proximate cause,” the trial court does not abuse its discretion in granting a mistrial), clarified, 756 P.2d 142 (Wash. 1988); Fulton v. Callahan, 621 So. 2d 1235, 1249-50 (Ala. 1993) (holding it was reversible error to deny plaintiff ’s motion for a new trial when jurors looked up definitions of “oppression” and “wantonness,” terms that were material to a finding of the type of conduct necessary to support an award of punitive damages); Maslinski v. Brunswick Hosp. Center, Inc., 500 N.Y.S.2d 318 (N.Y. App. Div. 1986) (trial court did not err in setting aside a verdict when jurors looked up the term “malpractice” in a medical dictionary); Kirby v. Rosell, 648 P.2d 1048, 1052 (Ariz. 1982) (affirming grant of a new trial after juror consulted definitions in a business law textbook—even without proof of actual prejudice—because the definitions related to the case and there was a reasonable possibility of prejudice); Heaver v. Ward, 386 N.E.2d 134, 138 (Ill. 1979) (reversing jury verdict when foreman conducted independent research by visiting the scene of an accident and brought a guidebook for new drivers into the jury room); Nichols v. Seaboard C. R. Co., 341 So. 2d 671, 676 (Ala. 1976) (noting that “jurors can hardly be blamed for looking to their home reference books during the night recess to clarify in their minds the legal concepts essential to a resolution of the case” but ultimately held that doing so constituted prejudice as a matter of law, mandating reversal); Gertz v. Bass, 208 N.E.2d 113, 115-16 (Ill. 1965) (holding that sending a dictionary to the jury room was prejudicial to the plaintiffs so as to constitute

170

Volume 1, Issue 2


Untangling the Web But courts tolerate such outside research if jurors do not rely on the information and a particular party is not prejudiced. In Dulaney v. Burns, for example, the court upheld the verdict in a will contest in which the jury had obtained a Webster’s School Dictionary during deliberations and read various definitions.9 Kaufman v. Miller placed the burden on the party challenging the verdict to show that consulting a dictionary caused any prejudice.10 And another court recently held that when the jury finds a definition of a word that is substantially the same as the definition given in the jury instructions, there is no ground for a new trial.11 In short, consulting a dictionary has often been found to be harmless, and grounds for reversing the verdict and judgment because words crucial to the case, “guest,” “passenger,” “willful,” and “wanton,” would confuse the jury and be highly prejudicial to the plaintiffs); Harden v. Illinois C. R. Co., 112 N.W.2d 324, 325-26 (Iowa 1961) (reversing decision to deny mistrial when jurors examined a handbook showing stopping distance of automobile at various speeds when motorist’s speed was of primary importance and distances specified in handbook varied from distances testified to by witnesses); Stiles v. Lawrie, 211 F.2d 188 (6th Cir. 1954) (reversing and remanding when jurors reviewed a state highway manual with information about motor vehicle stopping distances at various speeds); Daniels v. Barker, 200 A. 410, 415 (N.H. 1938) (ordering a new trial when jurors consulted a dictionary); Palestroni v. Jacobs, 77 A.2d 183, 186-88 (N.J. 1950) (granting new trial when jurors looked up the word “wainscot” in dictionary). 9. 119 So. 21, 25 (Ala. 1928), overruled by, Whitten v. Allstate Ins. Co., 447 So. 2d 655, 659 (Ala. 1984). See also Cooper Tire & Rubber Co. v. Mendez, 155 S.W.3d 382 (Tex. Ct. App. 2004) (holding juror’s conduct of consulting a dictionary at her home and sharing definition with other jurors in deliberations did not constitute an “outside influence” as would permit jurors to give testimony impeaching verdict on motion for new trial), rev’d on other grounds, 204 S.W.3d 797 (Tex. 2006); South Bend Clinic, Inc. v. Kistner, 769 N.E.2d 591, 593 (Ind. Ct. App. 2002) (affirming decision to deny mistrial when there was no evidence that jurors consulting dictionary for definition of “preponderance” resulted in any prejudice to the defendants); Macias v. Forte, 661 N.E.2d 472, 475-76 (Ill. 1996) (upholding decision to deny new trial when jurors read definitions of “reasonable” “reasonable care,” and “defective condition”); Granite Constr. Co. v. Rhyne, 817 P.2d 711, 712 (Nev. 1991), (affirming decision to deny new trial when juror takes dictionary into jury room because definition of words would have no tendency to influence jury to reach a verdict inconsistent with legal proofs and court’s instructions) overruled on other grounds, Countrywide Home Loans, Inc. v. Thitchener, 192 P.3d 243 (Nev. 2008); Harris v. Deere & Co., 263 N.W. 2d 727, 732-33 (Iowa 1978) (holding trial court did not abuse its discretion in refusing new trial when jurors looked up words “control” and “lever” in dictionary and informed other jurors); Dutton v. S. Pac. Transp., 561 S.W.2d 892 (Tex. Civ. App. 1978) (holding juror’s use of dictionary during deliberation to determine the meaning of “proximate cause” was misconduct, but not prejudicial error), rev’d on other grounds, 576 S.W.2d 782 (Tex. Civ. App. 1978); In re Estate of Cory, 169 N.W.2d 837, 845-46 (Iowa 1969) (holding court did not abuse its discretion in refusing to grant a new trial when jurors procured dictionary definitions of “undue” and “undue influence”); Lane v. Mathews, 245 P.2d 1025, 1028-29 (Ariz. 1952) (holding it was harmless error for jurors to use a dictionary to ascertain the meaning of words contained in jury instructions and interrogatories); McGee v. McGee, 237 S.W.2d 778, 783-84 (Tex. Civ. App. 1950) (holding no injury resulted when jurors examined bank financial statements and consulted a dictionary and lawbook). 10. 405 S.W.2d 820 (Tex. Civ. App. 1966), rev’d on other grounds, 414 S.W.2d 164 (Tex. Civ. App. 1967) (citing St. Louis Sw. Ry. Co. v. Gregory, 387 S.W.2d 27 (Tex. 1965)). 11. South Bend Clinic, Inc. v. Kistner, 769 N.E.2d 591, 593 (Ind. Ct. App. 2002) (consulting dictionary for definition of “preponderance” did not prejudice defendants when definition was substantially the same as that in jury instruction). See also Rutland v. State, No. 2008-CT-01544-SCT, 2011 WL 907116, at *6 (Miss. Mar. 17, 2011) (upholding trial court decision to deny mistrial because it did not prejudice verdict when jurors looked up definitions of “abuse” and “neglect,” because the definitions were “clearly something within the collective intelligence and common knowledge of any jury.”); Bauberger v. Haynes, 632 F.3d 100, 106 (4th Cir. 2011) (holding jury’s use of dictionary to obtain definitions of terms “recklessly” and “wantonly” used in jury instruction on “malice” did not materially alter meaning of instruction as a whole and therefore any violation of Sixth Amendment rights was harmless error and did not have subReynolds Courts & Media Law Journal

171


Untangling the Web not adequate grounds for reversal.12 Courts have also upheld verdicts when jurors consulted maps or government information pamphlets.13 In Bi-Lo, Inc. v. Stanciel, the court affirmed the judgment when a juror stantial and injurious effect upon the verdict); Macias v. Forte, 661 N.E.2d 472, 475-76 (Ill. 1996) (citing Danhof v. Richland Township, 559 N.E.2d 1155 (1990)) (holding no prejudice occurred when jurors consulted definition of “reasonable” and “reasonable care” that were essentially the same as definitions in the jury instructions); Adkins v. Aluminum Co. of Am., 750 P.2d 1257, 1262-63 (Wash. 1988) (upholding trial court’s grant of new trial because the dictionary definition of “negligence” did not merely restate the definition of negligence given in the jury instructions), clarified, 756 P.2d 142 (Wash. 1988); In re Estate of Cory, 169 N.W.2d 837, 846 (Iowa 1969) (finding no prejudice when dictionary definition of “undue influence” was no different than jurors’ common knowledge of the term); In re Hall’s Will, 113 S.E.2d 1, 12-14 (N.C. 1960) (upholding decision to deny new trial in will contest when jurors consulted a dictionary definition of “undue influence” that was more favorable to appellant than the jury instruction); Frazier v. Beard, 201 F. Supp. 395, 397 (W.D. Va. 1962) (holding defendant’s substantial rights were not prejudiced when the jury procured and considered the “Questions and Answers on the Motor Vehicle Code of Virginia” because the jury was not influenced by bad faith or desire to bring about injustice to either of the two competing parties); Pulkrabek v. Lampe, 293 P.2d 998, 1000 (Kan. 1956) (holding that, when dictionary definition of “proximate” was not inconsistent with jury instructions, substantial rights were not prejudiced); Fagen Elevator v. Pfiester, 56 N.W.2d 577 (Iowa 1953) (holding that jurors trying automobile collision case were presumed to have known any provisions of law in pamphlets prepared by State Department of Public Safety for guidance of drivers and therefore examining such a such book did not require a new trial). Accord Kirby v. Rosell, 648 P.2d 1048, 1052 (Ariz. 1982) (no abuse of discretion to order new trial when jurors read definitions of terms in a legal textbook that were not included in jury instructions). 12. Granite Constr. Co. v Rhyne, 817 P.2d 711, 712 (Nev. 1991), overruled on other grounds by, Countrywide Home Loans, Inc. v. Thitchener, 192 P.3d 243, 246 (Nev. 2008); Pulkrabek v. Lampe, 293 P.2d 998, 1001 (Kan. 1956) (no prejudice when jury reads dictionary definition of “proximate”). But see Fulton v. Callahan, 621 So. 2d 1235, 1248-49 (Ala. 1993) (holding majority shareholders were entitled to new trial when the jury considered dictionary definitions before awarding punitive damages); Adkins v. Aluminum Co. of Am., 750 P.2d 1257, 1262 (Wash. 1988), clarified by, 756 P.2d 142 (Wash. 1998) ( judge properly granted a mistrial when the bailiff provided the jury with legal dictionary in violation of a state statute). 13. People v. Williams, 2010 WL 3813161 at *6 (Mich. App. Sep. 30, 2010) (no mistrial when juror created a Google map of crime scene because other jurors did not see the map and the prosecutor introduced a similar map at trial); United States v. Wheaton, 426 F.Supp.2d 665-67 (N.D. Ohio 2006) (holding defendant failed to prove bias affecting verdict when juror used his personal computer in the jury room during deliberations because it was well within court’s discretion to believe or disbelieve individual assurances of impartiality and the extraneous information had no relevance to any element of charged crimes); Loving v. Baker’s Supermarkets, Inc., 472 N.W.2d 695, 702 (Neb. 1991) (holding that bailiff ’s inadvertent inclusion of documents that had not been received into evidence, including photocopies, answers to interrogatories, an accident report, and a legal pad with handwritten notes, was not sufficiently prejudicial to warrant setting aside the verdict, because each of the documents contained information presented to the jury through the introduction of evidence in the course of trial); Williams v. Salamone, 470 A.2d 694, 698 (Conn. 1984) (holding it was “abundantly clear” that when a juror consulted a map during trial, there was no probable prejudicial effect); People v. Martinez, 147 Cal. Rptr. 208 (1978) (holding it did not prejudice defendant when foreman brought three maps into jury room that were not part of evidence received at trial); Blackmon v. United States, 474 F.2d 1125, 1127 (6th Cir. 1973) (permitting jury to have a map that had never been introduced as evidence because there was no reason to believe introduction of map would have been refused, and trial judge showed he was exercising restraint and extreme care by admonishing jury before allowing the map to be examined); Frazier v. Beard, 201 F. Supp. 395 (W.D. Va. 1962) (upholding verdict in which jury had considered information from a pamphlet prepared by the division of motor vehicles, which included information about average vehicle stopping distances at varying speeds); Accord Vail-Beserini v. Rosengarten, 701 N.Y.S.2d 159, 160 (N.Y. App. Div. 1999) (upholding denial of request for a mistrial after juror brought into the

172

Volume 1, Issue 2


Untangling the Web had looked up concepts in a legal treatise because the defendant failed to demonstrate any harm or prejudice.14 On the other hand, courts may reverse verdicts if jurors consult plainly incorrect information. Bouton-Perkins Lumber Co. v. Huston, for example, granted a new trial when jurors read a pamphlet with laws from 1911 that were not in effect at the time of the events in question.15 Some courts have also rejected jury efforts to conduct more searching inquiries. For example, Arthur v. Washington Iron Works Division of Formac International, Inc., upheld a mistrial decision when the foreman consulted a telephone directory and researched an issue at the public library.16

Internet Research During Trial The opinions that have evaluated Internet use by juries during civil trials have applied standards derived from cases involving outside research through traditional information jury room a pamphlet published by the state Department of Motor Vehicles). But see Stiles v. Lawrie, 211 F.2d 188, (6th Cir. 1954) (holding trial court should have granted new trial when juror consulted highway department manual showing stopping speeds for various motor vehicles); Heaver v. Ward, 386 N.E.2d 134, 138-39 (1979) (reversing verdict when jury consulted an official instruction booklet for driver’s license applicants). 14. 251 S.E.2d 834 (Ga. Ct. App. 1979). See also State v. Taylor, 917 S.W.2d 222 (Mo. Ct. App. 1996) ( jurors visited library and consulted statutes dealing with an issue that was not before the jury); Annaratone v. State, 399 So. 2d 825, 827 (Miss. 1981) (trial judge properly denied motion for new trial when jurors read from lawbooks in jury room because it did not appear that reading about automobile accident case law and courthouse history influenced verdict of jury to the prejudice of defendant); Dickerson Constr. Co. v. Dozier, 584 S.W.2d 36 (1979) (allowing jury to have something not admitted into evidence will not necessarily constitute an abuse of discretion); State v. Carter, 363 So. 2d 893 (La. 1978); Davis v. Damge, 328 S.W.2d 203 (Tex Civ. App. 1959) (holding prejudice was not shown when a juror consulted two lawbooks on torts); Posey v. State, 234 Ind. 696 (1956) ( judgment will not be reversed because of the jury’s use of a lawbook where it does not appear that any prejudice resulted); McGee v. McGee, 237 S.W.2d 778 (Tex. Civ. App. 1950) (holding it was not reasonably probable that consulting a lawbook for the definition of “stock” affected the verdict). But see Sunrise Enterprises, Inc. v. Mid-South Road Builders, Inc., 987 S.W.2d 674 (1999) (holding trial judge did not abuse his discretion in granting a new trial when jurors were exposed to legal materials pertaining to landlord’s right to sell property even when such issue was inapplicable to present case); Kirby v. Rosell, 648 P.2d 1048, 1052 (Ariz. 1982) (holding trial court did not abuse its discretion in granting motion for new trial when juror consulted business law textbook and read definitions of legal terms to other jurors); Demaray v. Ridl, 249 N.W.2d. 219, 225 (N.D. 1976) (holding trial court had discretion to find presence of law book opened to a wrongful death case entitled plaintiffs to new trial even without evidence that the book was consulted). 15. 143 P. 146, 147-48 (1914). See also Sunrise Enterprises, Inc. v. Mid-South Road Builders, Inc., 987 S.W.2d 674, 677 (1999) (trial judge did not abuse his discretion in granting a new trial when jurors were exposed to legal materials pertaining to landlord’s right to sell property); Noll v. Lee, 34 Cal. Rptr. 223, 228-29 (1963) (plaintiff was substantially prejudiced when a juror brought a copy of the vehicle code into the jury room and read to other members of the jury sections of the code not included in the court’s instructions). But see Fagen Elevator v. Pfiester, 56 N.W.2d 577, 581-82 (Iowa 1953) (verdict upheld when jury consulted manual containing sections of state vehicle code because the information in the manual was accurate). 16. 587 P.2d 626, 629-30 (Wash. App. 1978). See also Castaneda by Correll v. Pederson, 518 N.W.2d 246, 250 (Wis. 1994) (evidence that jurors went to the library to research average medical malpractice awards was admissible to determine whether “extraneous prejudicial information” was improperly brought to jury’s attention). But see Davis v. Kansas City Public Service Co., 233 S.W.2d 669 (Mo. 1950) (holding the respondent was not prejudiced when a juror took notes at the library on stopping distances and brought the information to deliberations). Reynolds Courts & Media Law Journal

173


Untangling the Web sources such as print dictionaries and newspapers.17 In general, courts consider whether the outside information prejudiced one of the parties. For example, Russo v. Takata Corp. upheld a trial court’s decision to grant a new trial because a reasonable juror could have been influenced by a juror’s remarks that a seatbelt manufacturer’s website did not reveal any lawsuits.18 But Russo made clear that not all Internet searches during trials require declaration of a mistrial: “Today we announce no hard and fast rule that all such When juror research directly affects types of internet research by a juror prior to an issue of fact at trial, rather than trial without notice to the court and 19counsel automatically doom a jury’s verdict.” Inan interpretation of law, a reversal stead, Russo gave deference to the trial court and held that the party seeking to overturn is more likely. a verdict must show the juror’s conduct was prejudicial: “The test is whether the extraneous matter had a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the evidence and the instructions of the court.”20 So, in some cases, jurors’ consulting the Internet for basic definitions of unfamiliar legal terms has not affected verdicts. In Real v. Wal Mart Stores, Inc. a plaintiff customer successfully rebutted a presumption that the defendant store was prejudiced by a juror using the Internet to research the term “negligence” in a personal injury lawsuit.21 The appeals court found no evidence that having one juror review this information confused the jury as a whole, or encouraged a decision in favor of any particular party.22 Similarly, in Stebner v. Associated Materials, Inc., there was no prejudice when a juror researched the term “preponderance” on the Internet, because other jurors had already voted by the time the information was revealed.23 But when the research directly affects an issue of fact at trial, rather than an interpretation of law, a reversal is more likely. For example, Thompson v. Krantz held that a juror’s Internet research about a medical procedure and medications taken by the patient justified a new trial because the research involved information not in evidence.24 Nevertheless, if the party seeking a mistrial fails to demonstrate a “reasonable possibility” that the Internet research affected the verdict, the verdict will probably stand.25 17. Tapanes v. State, 43 So. 3d 159, 162 (Fla. Dist. Ct. App. 2010) (“Using [the online dictionary] Encarta to access a dictionary is, of course, no different than utilizing a bound dictionary.”) 18. 774 N.W.2d 441, 454 (S.D. 2009). 19. Id. 20. Id. at 451. 21. No. B145819, 2002 WL 80664 (Cal. App. Dist. Jan. 22, 2002) (unpublished). 22. Id. at *4. 23. 234 P.3d 94 (Mon. 2010); accord Buford v. Group Health Cooperative of Puget Sound, 98 Wash. App. 1063 (Jan. 18, 2000) (unpublished opinion) (upholding medical malpractice verdict when a juror used the Internet to look up medical terms during the trial because the research was not prejudicial). 24. 2006 OK 60, 137 P.3d 693 (Okla. Civ. App. 2006). See also People v. Collins, 110 Cal. Rptr. 3d. 384, 443 (Cal. 2010) (citing cases in which jurors investigated trial evidence using a computer). 25. Buford v. Group Health Cooperative of Puget Sound, 98 Wash. App. 1063, 2000 WL 44123 (2000) (unpublished opinion) (finding no juror misconduct when jurors read about a medical condition and such information was redundant with information presented at trial); Adidas America, Inc. v. Payless Shoesource, Inc., No. CV 01-1655KI, 2008 WL 4279812 (D. Or. 2008) (unreported) (refusing to grant a new trial based on allegation that juror conducted Internet research). Cf. United States v. Wheaton, 517 F.3d 350, 361 (6th Cir. 2008) (upholding guilty verdict when juror used laptop computer to review sound recordings and maps presented during trial, rejecting defendant’s argument—made without proof—that the laptop could have been used to access Internet material).

174

Volume 1, Issue 2


Untangling the Web

Internet Research About Attorneys or Parties This section discusses cases in which a juror accessed outside information through the Internet about parties or attorneys during a trial. In general, courts will uphold verdicts when jurors conduct such research, as long as the research is not shared with other jurors. Sometimes jurors access general information about a party, such as employment records. In Wells v. Levine a juror conducted Internet research regarding the defendant in a lawsuit, but the trial court found no evidence that any jurors altered their positions as a result of the information.26 The appellate court agreed that the complainant failed to establish that prejudice resulted from the Internet research.27 The court in CGB Occupational Therapy, Inc. v. RHA Health Services Inc. refused to grant a new trial on the grounds that a juror had used the Internet to research the defendant’s financial situation, because the information was only relevant to the amount of punitive damages.28 But when jurors disclose the results of their research to other jurors, courts are more likely to grant a new trial. For example, in Sheffield v. Goodyear Tire & Rubber Co., the appeals court granted a new trial on the issue of damages when a juror researched a party’s annual earnings on the Internet and disclosed that information to fellow jurors during deliberations.29 But if the Internet research does not cause a jury to vote any differently than it otherwise would have, there is no probable injury and retrial will likely be denied.30 For example, when a juror looked up the driving record of a defendant truck driver, the court refused to grant a mistrial because it held that the jury would have rendered the same verdict, which was not required to be unanimous, even without the research.31 Researching the parties’ attorneys is apparently not likely to affect verdicts. Rodriguez v. FedEx Freight East, Inc. upheld a verdict when a juror learned that plaintiff ’s attorney specialized in representing minority employees in alleged discrimination cases.32 The court found that any bias against attorneys who represent particular classes of clients was handled by voir dire and there was no evidence that the juror sided with the defendant based on the information learned about plaintiff ’s counsel.33 Similarly, in both Ramos v.

26. No. 2003-CA-001684-MR, 2004 WL 1700062 (Ky. Ct. App. 2004) (unpublished). 27. Id. 28. 357 F.3d 375 (3d Cir. 2004). The court did remand, however, because the jury form did not differentiate among these acts of interference for purposes of punitive damages. CGB Occupational Therapy, Inc. v. RHA Health Servs., 499 F.3d 184 (3d Cir. 2007). Accord Moore v. American Family Ins. Co., Civil No. 2:05-cv-31, 2008 WL 4021695 (N.D. 2008) (refusing to grant a new trial when a juror researched a defendant’s financial condition on the Internet, because the juror did not share the information with others on the jury). 29. 151 Wash. App. 1052 (table), 2009 WL 2586619 (text) (Div. 1 2009) (unpublished); see also Tapanes v. State, 43 So. 3d 159, 162 (Fla. Dist. Ct. App. 2010) (holding it was misconduct for jury foreperson to looking up definitions through online dictionary and share the information with fellow jurors); Moore v. Am. Family Ins. Co., No. 2:05-cv-31, 2008 WL 4021695 (N.D. Aug. 26, 2008) (researching defendant’s financial condition on the Internet was not prejudicial when juror did not share results with other jurors); United States v. Bristol-Martir, 570 F.3d 29 (1st Cir. 2009) (holding it was error for trial court not to individually question each juror to determine whether juror who conducted research shared that information with fellow jurors). 30. See Magee v. Williams, 17 So. 3d 687 (Ala. Civ. App. 2009); Sharpless v. Sim, 209 S.W.3d 825, 827-29 (Tex. App. Dallas 2006). 31. Id. 32. 2008 WL 4155677 (E.D. Mich. 2008). 33. Id. Reynolds Courts & Media Law Journal

175


Untangling the Web Shearer34 and Wells v. Levine,35 courts upheld verdicts after jurors researched defense counsel on the Internet, because the aggrieved party failed to establish that any prejudice resulted from the inquiry.

Judicial Response: “Just Say No,” Mostly

D

espite these rulings, which have generally not found that mistrials and reversals are necessary in many cases of juror Internet research, courts and commentators still fear that access to the Internet could introduce bias into trial proceedings.36 While existing court rules and jury instructions are designed to ensure that jurors consider only evidence admitted at trial,37 courts have generally failed to make these underlying rationales clear to jurors. Jurors are therefore likely to feel—rightly so—that important information is being hidden from them. Two-thirds of the states have responded to the increased use of the Internet by drafting or revising new jury instructions and admonitions to specifically restrict such research.38 But 34. 2008 WL 2445485 (Cal. App. 4th Dist. 2008). 35. 2004 WL 1700062 (Ky. Ct. App. 2004). 36. Hillary Hylton, Tweeting in the Jury Box: A Danger to Fair Trials?, Time, Dec. 29, 2009, http://www. time.com/time/nation/article/0,8599,1948971,00.html. 37. Evan Brown, Some Thoughts On Jurors Doing Internet Research – Keep The Process Clamped Down, Internet Cases, Jan. 2, 2010, http://blog.internetcases.com/2010/01/02/-some-thoughts-on-jurorsdoing-internet-research-keep-the-process-clamped-down/. 38. See Ala. Patt. Jury Inst. Civ. 1.22 (2nd ed. updated Nov. 2010), http://jamesajohnsonpc.com/resources/ alabama-pattern-jury-instructions/; Alaska Crim. Pattern Jury Instr.1.02-1.03 (2010), http://www. courts.alaska.gov/crimins.htm#1; Ariz. Patt. Jury Inst., Civ. Prelim. 9 (Mar. 2008), http://www.myazbar.org/SecComm/Committees/CIJI/CIJI-PDF/Preliminary.pdf; Ark. Sup. Ct. Comm. on Jury Inst., Ark. Model Jury Inst., Civil AMI 101 (West Dec. 2010); Jud. Council of Cal., Civil Jury Inst. 100, http:// www.courts.ca.gov/partners/documents/2011_Edition.pdf; Jud. Council of Cal., Crim. Jury Instr. 101 (2011), http://www.courtinfo.ca.gov/jury/criminaljuryinstructions/calcrim_juryins.pdf; Colo. Sup. Ct., Comm. on Civ. Jury Inst., Colo. Jury Inst., Civ. 1:4, 1:9, 4:1A (West 4th ed., updated Apr. 2010); State of Conn. Jud. Branch, Conn. Civ. Jury Inst. 1.1-1 (rev. Nov. 20, 2009), http://www.jud.ct.gov/ji/Civil/; State of Conn. Jud. Branch, Conn. Crim. Jury Instr. 1.2-10 (rev. June 12, 2009), http://www.jud.ct.gov/ JI/Criminal/Part1/1.2-10.htm; Richard W. Stevens, ed., Crim. Jury Inst. for the Dist. of Columbia (5th ed. 2002, rev. 2010), Inst. 1.202; Fla. Sup. Ct., Comm. on Std. Jury Inst. in Civ. Cases, Fla. Stand. Jury Inst. in Civ. Cases, R. 201.2 http://www.floridasupremecourt.org/civ_jury_instructions/ instructions.shtml; 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), http://www. floridasupremecourt.org/decisions/2010/sc10-51.pdf (amending criminal and civil jury instructions); Haw. Pattern Jury Instr., Crim. 1-01, 2-01 (2010); Idaho Crim. Jury Instr. 002, 108 (2010), http://www. isc.idaho.gov/idaho_courts_e.htm; Ill. Sup. Ct. Comm. on Pattern Jury Inst. in Civ. Cases, Ill. Pattern Inst., Civ. 1.01 (West 2009); 1-100 Ind. Model Civ. Jury Inst. 101, Admonishment (Lexis); Pattern Inst., Kan. 3d, Criminal 51.01-B (2009); Donald G. Alexander, 1-2 Me. Jury Instruction Manual, § 2-19 (Matthew Bender 2001); Mass. Super. Ct. Civ. Pract. Jury Inst. 1.1.2 (Patrick F. Brady, ed., 2d ed. 2008); Mich. Sup. Ct. Comm. on Model Civ. Jury Inst., Mich. Civ. Jury Instr. 2.06, http://www.courts.michigan.gov/mcji-index.htm; 4 Minn. Prac., Jury Instr. Guides—Civ. 10.15, 10.40 (5th ed. 2010); 10 Minn. Prac., Jury Instr. Guides—Crim. 1.02A, 1.02B, 2.08 (5th ed. 2010); Miss. Prac. Model Jury Instr. Civ. §§ 1:15.50, 1.15.60; Miss. Prac. Model Jury Instr. Crim. §§ 1:2.50, 1:2.70 (2010); Mo. Sup. Ct. Comm. on Civ. Jury Inst., Mo. Approved Jury Instr. (Civ.) 2.01, § 8 (Stephen H. Ringkamp, ed., 6th ed. 2008); In re: Revisions, additions and withdrawals to MACH-CR and MAI-CR 3d (Mo. May 20, 2008), http:// www.courts.mo.gov/file.jsp?id=10320 (modifying Mo. Approved Jury Instr., Crim 300.04 [admonition to avoid coverage of case] and Mo. Approved Jury Instr., Crim. 302.01 [instruction on what is evidence]); Mont. Crim. Jury Inst. Comm., Mont. Pattern Inst., Inst. No. 1-101 (2009), http://www. doj.mt.gov/resources/criminaljury/chapter1.pdf; 1 Neb. Prac., Neb. Jury Inst., Civ. 1.00, 1.00A, 5.01

176

Volume 1, Issue 2


Untangling the Web even these revised instructions often do not explain the rationale behind the prohibitions. Michigan’s Civil Jury instruction, for example, admonishes jurors not to use hand-held devices such as smartphones.39 But the only explanation given is that “the law requires that cases be decided only on the evidence presented during the trial.”40 There should instead be some effort to explain the reasoning behind the court’s rule and an attempt to give at least some logical rationale for such restrictions. Connecticut’s jury instructions for civil and criminal trials explain the prohibition against outside research by highlighting constitutional rights: [P]arties have a right to have the case decided only on evidence they know about and 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 information that has not been tested by the oath to tell the truth and by cross-examination.41 (2d ed., 2010-11); 1 Neb. Prac., Neb. Jury Inst. Crim. 1.0 , 1.1, 9.0 (2d ed., 2010-11); N.J. Model Civ. Jury Charges 1.11C (1998, rev. 2010), 1.11I (2004, rev. 2007), both available via http://www.judiciary. state.nj.us/civil/civindx.htm; N.J. Model Crim. Jury Charges, Non-2C Charges, Preliminary Instructions to the Jury (rev. 2010), http://www.judiciary.state.nj.us/criminal/charges/non2c017.pdf; N.J. Model Crim. Jury Charges, Non-2C Charges, Instructions After Jury Is Sworn (rev. 2011), http://www. judiciary.state.nj.us/criminal/charges/non2c014.pdf; 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; N.M. Uniform Jury Instr. – Crim. 14-101, 14-114 (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; Ass’n of Sup. Ct. Justices, State of N.Y., Comm. on Pattern Jury Inst., N.Y. Pattern Jury Inst. Civ., 1:01, 1:11 (West Jan. 2011); N.Y. Crim. Instr. 2d [NY CJI 2d], Jury Admonitions In Prelim. Instr. (rev. May 5, 2009), http://www.nycourts. gov/cji/1-General/CJI2d.Jury_Admonitions.pdf; id., Jury Separation During Deliberations (rev. Dec. 17, 2009), http://www.nycourts.gov/cji/1-General/CJI2d.Jury_Separation_Rev.pdf; Ohio Jud. Conf., 1 Civ. Ohio Jury Inst. 301.07 (Jan. 23, 2010); Ohio Judicial Conf., 2 Ohio Jury Instr., Crim. 401.09 (2011); Okla. Supreme Court, Okla. Uniform Jury Inst. 1.4 (2008), http://www.oscn.net/applications/oscn/ Index.asp?ftdb=STOKJUCV&level=1; Beverly Michaelis, Oregon Adopts Social Media Jury Instruction, Oregon Law Practice Management Blog (Jan. 26, 2011), http://oregonlawpracticemanagement.wordpress.com/2011/01/26/oregon-adopts-social-media-jury-instruction/ (regarding amendment of Ore. Uniform Civ. Jury Instr. 5.01); Pa. Sup. Ct. Comm. for Proposed Std. Jury Inst., Civ. Inst. Subcomm., Pa. Suggested Std. Jury Inst., §1.52 (2008); S.C. Civ. Jury Charges, Chap. 3, General Charge (n.d. [2007?]), http://www.charlestonbar.org/CM/ArchivedNewsletters/CivilCharges.doc; S.C. Crim. Jury Charges, Chap. 3, General Charge (n.d. [2007?]), http://www.charlestonbar.org/CM/ArchivedNewsletters/GSInstructions2.doc; Re: Juror use of Personal Communication Devices (order), No. 2009-07-20-01 (S.C. July 20, 2009), http://www.judicial.state.sc.us/courtOrders/displayOrder. cfm?orderNo=2009-07-20-01; Tenn. Jud. Conf, Comm. on Pattern Jury Inst. (Civ.), 8 Tenn. Pract. Pattern Jury Inst., Tenn. Pract. Series, Tenn. Pattern Jury Inst., Civil 1.02, 15.02 (2010); Tenn. Jud. Conf, Comm. on Pattern Jury Inst. (Crim.), 7 Tenn. Pract. Pattern Jury Inst., Tenn. Pract. Series, Tenn. Pattern Jury Inst., Crim. 1.09, 43.14 (2010); Amendments to Tex. R. Civ. Pro. 281 and 284 and to Jury Instr. Under Texas R. Civ. Pro. 226a, Misc. Docket No. 10-9210 (order) (Tex. 2010); Model Utah Jury Inst. Comm., Model Utah Jury Inst. Civ. 101A, 101B (2nd ed. 2010), http://www.utcourts.gov/resources/muji/inc_list.asp?action= showRule&id=1#101A; 1-2 Va. Model Jury Inst., Civil 2.000 (1998); Wash. Sup. Ct. Comm. on Jury Inst., Wash. Pattern Jury Inst., Civil, 6 Wash. Prac., Wash. Pattern Jury Instr., Civ., WPI 1.01 (West 5th ed. 2002); Wis. Jud. Conf. Civ. Jury Inst. Comm., Wisconsin Jury Instruction 50, Criminal, Rel. No. 48 (May 5, 2010). New Hamsphire has proposed such rules. See Crim. Jury Instr. Drafting Comm., N.H. Bar Assn., Criminal Jury Instructions: Drafting Committee Version (Sept. 2010), at 2, http://www.nhbar.org/uploads/pdf/CJI.pdf. 39. Mich. Sup. Ct. Comm. on Model Civil Jury Instr., Civ. Jury Inst. 2.06, http://www.courts.michigan.gov/ mcji-index.htm. 40. Id. 41. Conn. Crim. Jury Inst. 1.2-10, Your Conduct as Jurors (rev. June 12, 2009), available at http://www.jud. Reynolds Courts & Media Law Journal

177


Untangling the Web Indeed, a juror’s communication of extrinsic facts to other jurors in a criminal case might implicate the Confrontation Clause of the Sixth Amendment.42 But the Confrontation Clause does not apply to civil proceedings. Nor is there necessarily a due process right to cross examination in a civil case, so long as there was a meaningful opportunity to be heard.43 Instead, the Supreme Court has consistently refused to create constitutional doctrines protecting fundamental rights of civil litigants: constitutional cases reflect concerns about federalism rather than provision for any particular procedure for civil disputes.44 It is important to keep this distinction in mind as courts craft new policies and instructions concerning access to outside information during civil trials. A jury instruction used in Multnomah County, Oregon invokes everyday experience in an attempt to explain the prohibition against outside research: 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.45

Again, this instruction clarifies what jurors are expected not to do, but it still fails to explain why the “system of justice” requires restricting access to outside information. Anything short of transparent explanations will likely continue to feed jury—and public—mistrust for the legal system. Ohio’s civil jury instruction explains that the law requires jurors to only consider testimony and evidence presented in court, but again fails to fully explain why the law is so restrictive: 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.46

In February 2010, the U.S. Judicial Conference suggested jury instructions on the use of ct.gov/ji/criminal/part1/1.2-10.htm; Conn. Civ. Jury Inst. 1.1-1, Obligation of Juror’s Oath (rev. Nov. 20, 2009), available at http://www.jud.ct.gov/ji/Civil/part1/1.1-1.htm. 42. Estrada v. Scribner, 512 F.3d 1227, 1238 (9th Cir. 2008) (citing Sassounian v. Roe, 230 F.3d 1097, 1108 (9th Cir. 2000)). 43. S.C. Dept. of Social Services on Behalf of State of Tex. v. Holden, 459 S.E.2d 846, 849 (S.C. 1995). See also Tennessee v. Lane, 541 U.S. 509, 523, 532 (2004) (interpreting the Due Process Clause as requiring States, “within the limits of practicability,” to “afford certain civil litigants a ‘meaningful opportunity to be heard’ by removing obstacles to their full participation in judicial proceedings”). 44. John Leubsdorf, Constitutional Civil Procedure, 63 Tex. L. Rev. 579, 580-81 (1984). 45. Gregory S. Hurley, Cell Phone Policies/Instructions for Jurors, Jur-E Bulletin, May 1, 2009, http:// view.exacttarget.com/?j=fe4f1579726d04747313&m=ff3417737561&ls=fe0313707667047d74147970& l=feee117976630d&s=fdf015757d6006757d127377&jb=ffcf14& ju=fe2116727c6d0778771377. In January 2011, the Oregon courts adopted an addition to the state’s Uniform Civil Jury Instructions which prohibits jurors from using the Internet or other electronic tools to find information about a case or communicate about a case via cell phone, e-mail, text messaging, etc. See Beverly Michaelis, Oregon Adopts Social Media Jury Instruction, Ore. L. Prac. Mgmt. (Jan. 26, 2011), http://oregonlawpracticemanagement.wordpress.com/2011/01/26/oregon-adopts-social-media-jury-instruction/. The revised instruction, Ore. Uniform Civ. Jury Inst. 5.01, also includes some explanation of the rationale for the restrictions. Id. 46. Civil Ohio Jud. Conf., 1 Civ. Ohio Jury Inst. 301.07 (Jan. 23, 2010).

178

Volume 1, Issue 2


Untangling the Web “electronic communication technologies.47 The instructions ban a laundry-list of devices and resources—“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”—but fail to explain why jurors should not, for example, look up the definition of “lividity.”48 Again, if courts want to convince jurors not to “google” on their cell phones, they must give a concrete explanation for the court rule. Instead, the Judicial Conference’s suggested instructions just state, “You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom,” without explaining why this is so. The American College of Trial Lawyers also approved new instructions in 2010 addressing this issue.49 The instructions include a suggested statement of compliance for jurors to sign and also explain to prospective jurors that they should not access the Internet because information might be inaccurate: 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.50

It might seem obvious to lawyers and judges why outside information should not be consulted during trial. But it may not be so obvious to anyone else. A continued failure to carefully explain reasons for an Internet ban risks creating mistrust for the judicial system. A New York Times article on jurors’ use of the Internet51 provoked more than 250 comments within nine hours,52 some of which expressed belief that there could be a “systemic effort to keep jurors from learning the truth . . . [so that] jurors, therefore, needed to dig deeper to uncover the truth.”53 What can ease this mistrust? Clear and convincing explanations of judicial policies will help. Furthermore, giving jurors the tools and information in court that they need to make informed decisions in court will make them less likely to look elsewhere for answers. It is important to examine the traditional reasons offered for why jurors should not access outside information to determine whether such views are still valid today. Judges and lawyers offer three basic reasons why outside information should be kept from the courtroom: (a) rules of evidence; (b) prevention of jury bias; and (c) constitutional protections. 47. Jud. Conf. Comm. on Ct. Admin. & Case Mgmt., Proposed Model Jury Inst., The Use of Electronic Technology to Conduct Research on or Communicate about a Case (Jan. 28, 2010), http://www.wired.com/ images_blogs/threatlevel/2010/02/juryinstructions.pdf. 48. A Maryland appeals court threw out a first-degree murder conviction after a juror, confused by the word “lividity” during a murder trial, looked up the term on Wikipedia. Del Quentin Wilber, Social networking among jurors is trying judges’ patience, Wash. Post, Jan. 9, 2010, at C01. 49. Amer. Coll. of Trial Lawyers, Jury Inst. Cautioning Against Use of the Internet and Social Networking (Sep. 2010), http://www.actl.com/AM/Template.cfm?Section=Home&template=/CM/ContentDisplay.cfm&ContentID=5213. 50. Id. at 1 (“For Summons to Prospective Jurors”). 51. John Schwartz, As Jurors Turn to Web, Mistrials Are Popping Up, N.Y. Times, Mar. 18, 2009, http:// www.nytimes.com/2009/03/18/us/18juries.html. 52. These comments are available at http://community.nytimes.com/comments/www.nytimes. com/2009/03/18/us/18juries.html. 53. Douglas L. Keene & Rita R. Handrich, Online and Wired for Justice: Why Jurors Turn to the Internet, Jury Expert 14 (Nov. 2009), http://www.astcweb.org/public/publication/article.cfm/1/21/6/WhyJurors-Turn-to-the-Internet. Reynolds Courts & Media Law Journal

179


Untangling the Web

Rules of Evidence Evidence rules impose various limits on the jury’s unfettered evaluation of evidence.54 When jurors have been exposed to information other than what is presented in court, the judge determines whether there is a reasonable probability that the extraneous matter will have a prejudicial effect upon a hypothetical average juror, considering the nature of the outside information, the circumstances under which the information was brought to the jury’s attention, and the connection between the information and the material issue in the case.55 Trial courts also have discretion to allow juries to take items not admitted in evidence into the jury room if they will aid the jury and not prejudice an opposing party.56 Thus, if jurors are exposed to information not admitted into evidence, Federal Rule of Despite the general principle that Evidence 606(b) mandates a new trial only jury verdicts should be based solely if the material was prejudicial; the judge determines whether there is a “reasonable on evidence submitted in court, possibility” that the outside research altered the verdict.57 the law allows some types of The rules of evidence can also be unexternal evidence. derstood as an effort to shift power away from juries and toward attorneys: “the true historical function of the law of evidence may not have been so much jury control as lawyer control.”58 The rules of evidence also made it possible for more talented lawyers to gain advantage over competition through skillful argument of evidentiary points.59

Prejudicial Effect of Outside Information Sheppard v. Maxwell, while primarily known for its ruling on camera coverage of court proceedings, is also a fountainhead case on the effect of extraneous evidence on juror decision-making.60 At issue was whether Sam Sheppard was denied a fair trial for murder when the trial judge failed, in the U.S. Supreme Court’s view, to protect the defendant from pervasive publicity surrounding the prosecution, both before and during trial.61 The Court held that excessive publicity can be grounds for granting of a habeas petition. The Court stated that “the jury’s verdict [must] be based on evidence received in open 54. In 1898, Harvard Law School Professor James Bradley Thayer, who is arguably the founder of modern evidence law and of the Federal Rules of Evidence, examined the origins of the modern jury and, in particular, the transition from juries basing decisions on personal experience to judges controlling information presented to the jury by excluding hearsay, opinion evidence, character evidence, and evidence lacking probative value. See Eleanor Swift, One Hundred Years of Evidence Law Reform: Thayer’s Triumph, 88 Cal. L. Rev. 2437 (2000). 55. See generally, George L. Blum, Prejudicial Effect of Juror Misconduct Arising from Internet Usage, 48 A.L.R. 6th 135 (2009). 56. Poppe v. Siefker, 735 N.W.2d 784 (Neb. 2007) (slide calculator); Williams v. First Sec. Bank of Searcy, Ark., 738 S.W.2d 99 (Ark. 1987) (expert witness’s drawings); American Nat’l Bank & Trust Co. of Chicago v. Thompson, 511 N.E.2d 1206 (Ill. 1987) (present value annuity tables); Wilkins v. Cash Register Serv. Co., 518 S.W.2d 736, 751 (Mo. App. 1975). 57. Fed. R. Evid. 606(b). 58. John H. Langbein, The Criminal Trial Before the Lawyers, 45 U. Chi. L. Rev. 263, 306 (1978). 59. Douglas G. Smith, The Historical and Constitutional Contexts of Jury Reform, 25 Hofstra L. Rev. 377, 414 (1996). 60. 384 U.S. 333 (1996). 61. Id. at 357-62.

180

Volume 1, Issue 2


Untangling the Web court, not from outside sources,”62 and noted that this “undeviating rule”63 dated back to 1907, when Justice Holmes explained that outside information should be curbed at trial: “The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.”64 Today, when a juror considers evidence not produced in open court, whether by reading newspapers or making unauthorized investigations, courts consider this to be misconduct.65 A verdict might even be set aside if the outside evidence likely affected the outcome.66 The rationale for setting aside the verdict is that parties were unable to rebut or challenge evidence that was not admitted at trial.67

Allowability of Outside Evidence Courts will often assume a jury’s exposure to publicity or outside information about a case is inherently unfair. In Irwin v. Dowd,68 Justice Clark described the underlying rationale for assuming outside information would be harmful: [L]ight impressions which may fairly be supposed to yield to the testimony that may be offered; which may leave the mind open to a fair consideration of that testimony, constitute no sufficient objection to a juror; but that those strong and deep impressions, which will close the mind against the testimony that may be offered in opposition to them; which will combat that testimony and resist its force, do constitute a sufficient objection to him.69

The underlying theory is that a juror who has been exposed to outside information will form an opinion and cannot be impartial.70 But it is not legally required that the juror be totally ignorant of the facts involved.71 Instead, “it is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.”72 Despite the general principle that jury verdicts should be based solely on evidence submitted in court, the law allows some types of external evidence. For example, jurors are permitted to draw on information based on common sense and some personal experiences,73

62. Id. at 351. 63. Id. 64. Patterson v. State of Colo. ex rel. Attorney General, 205 U.S. 454, 462 (1907). 65. See generally, Jimmie E. Tinsley, Jury Misconduct Warranty New Trial, 24 Am. Jur. Proof of Facts 2d § 633 (1980 updated 2010); Bennett L. Gershman, Contaminating the Verdict: The Problem of Juror Misconduct, 50 S.D. L. Rev. 332, 332-334 (2005); Note, Jury Misconduct in Iowa, 20 Drake L. Rev. 641, 642, 649 (1971). 66. See, e.g., Halvorson v. Anderson, 513 P.2d 827, 828 (Wash. 1973). 67. E.g., Goff v. Kinzle, 417 P.2d 105, 108 (Mont. 1966). 68. 366 U.S. 717 (1961). 69. Id. at 722, n.3 (quoting 1 Burr’s Trial 416 (1807)). 70. Reynolds v. United States, 98 U.S. 145, 155-56 (1879). 71. Irvin v. Dowd, 366 U.S. 717, 722 (1961). 72. Id. at 723 (1961) (citing The Anarchists’ Case, 123 U.S. 131 (1887)). 73. Hard v. Burlington N. R.R., 812 F.2d 482, 486 (9th Cir. 1987) (“Jurors must rely on their past personal experiences when hearing a trial and deliberating on a verdict,” except that where “those experiences are related to the litigation, . . . they constitute extraneous evidence which may be used to impeach the jury’s verdict.”). See also United States v. Heath, 970 F.2d 1397, 1402 (5th Cir. 1992); United States v. Cruz-Valdez, 773 F.2d 1541, 1546 (11th Cir. 1985) (per curiam); Chicago, M. & St. P. Ry. Co. v. Moore, 166 F. 663, 666-67 (8th Cir. 1909) (collecting cases); The Conqueror, 166 U.S. 110, 131 (1897); Head v. Hargrave, 105 U.S. 45, 49 (1881); Sioux City & P. R. Co. v. Stout, 84 U.S. 657, 663 (Mem.) (1873). Reynolds Courts & Media Law Journal

181


Untangling the Web and to consider the evidence in light of personal knowledge and observations.74 Jurors are also allowed to express opinions on technical subjects they learned about through personal experience.75 But while personal experience can be used to inform a juror’s evaluation of evidence presented at trial, that experience should not supplant the evidence.76 There are other situations in which jurors have been permitted to use outside sources during trial. For example, some juries have been allowed to view exhibits and models not in evidence during deliberations.77 In Rucker v. Gascon, the court held that no prejudice had been caused when a trial judge permitted a deliberating jury to return to the courtroom to examine blackboard drawings of the scene of an accident that had not been admitted into evidence.78 One appellate court has upheld a trial court’s decision to allow jurors to take a dictionary into the jury room when the trial court had examined the definition of the words and found nothing that would have a tendency to influence a verdict inconsistent the court’s instructions.79 Another appellate court held it was not juror misconduct for a juror in a negligence claim against a prescription drug manufacturer to bring into the jury room a popular magazine containing an article discussing methods of treating asthma.80 The use of books will also usually not affect the verdict if the information was not prejudicial or the information in the book was already in evidence.81 The trial court has wide discretion to determine the effect of any type of outside infor 74. See, e.g., People v. Szymanski, 589 N.E.2d 148, 152 (Ill. App. Ct. 1992) ( juror’s drawing of a map based on personal knowledge of area held not to require hearing on vacating verdict). 75. See, e.g., People v. Santi, 818 N.E.2d 1146 (N.Y. 2004) ( juror did not commit misconduct by giving a lay opinion on the introduction of an I.V. line based on trial experience and life experience as a nurse); Grotemeyer v. Hickman, 393 F.3d 871, 878-79 (9th Cir. 2004), cert. denied, 546 U.S. 880 (2005); Meyer v. State, 80 P.3d 447, 458 (Nev. 2003) (reviewing cases from various jurisdictions); People v. Steele, 120 Cal. Rptr. 2d 432 (2002), cert. denied, 537 U.S. 1115 (2003); State v. Mann, 39 P.3d 124, 132-33 (N.M. 2002); Carter v. State, 754 N.E.2d 877, 882 (Ind. 2001). But see People v. Maragh, 708 N.Y.S.2d 44, 48 (N.Y. 2000) (trial court properly set aside verdict after two jurors who were registered nurses told other jurors about consequences of blood loss). See also Paul F. Kirgis, The Problem of the Expert Juror, 75 Temp. L. Rev. 493 (2002). 76. Jones v. State, 636 S.W.2d 880, 881 (Ark. 1982); See generally, Annotation, Expression of Opinion by Juror Based Upon or Influenced by his Own Observation and Experience in Connection with his Trade, Business, or Profession as Ground for Reversal or New Trial, 156 A.L.R. 1033 (1945, supp. 2011). 77. Some jurisdictions allow items not admitted into evidence to be taken into the jury room during deliberations if the items accurately reflect testimony, will be a legitimate memory aid, and do not prejudice the opposing party. Williams v. First Sec. Bank of Searcy, Ark., 738 S.W.2d 99 (Ark. 1987); Fisher v. State, 139 S.W.3d 815 (Ark. Ct. App. 2004); American Nat. Bank & Trust Co. of Chi. v. Thompson, 511 N.E.2d 1206 (Ill. 1987); Rossell v. Volkswagen of Am., 709 P.2d 517 (Ariz. 1985). But see Modelski v. Navistar Intern. Transp. Corp., 707 N.E.2d 239 (Ill. 1999) (holding trial court abused its discretion in granting jury access to tractor’s seat assembly during deliberations because seat assembly had not been introduced into evidence and access invited experimentation). 78. 284 F.2d 244 (D.C. Cir. 1960). 79. Granite Const. Co. v. Rhyne, 817 P.2d 711 (Nev. 1991) (dictum), overruled on other grounds by, Countrywide Home Loans, Inc. v. Thitchener, 192 P.3d 243 (Nev. 2008); Meyers v. Cornwell Quality Tools, Inc., 674 A.2d 444, (Conn. App. 1996); see generally, Fran Amendola, et al., Annotation, Papers and Articles in Jury Room; Viewing of Exhibits, 89 C.J.S. §§ 804-06 (describing cases in which trial courts had discretion to allow jurors to take items not admitted into evidence into the jury room). 80. Bocci v. Key Pharmaceuticals, Inc., 974 P.2d 758, 769 (Or. App. 1999), vacated on issue of damages, 22 P.3d 758 (Or. 2001), cert. granted and judgment vacated sub nom., Key Pharmaceuticals, Inc. v. Edwards, 538 U.S. 974 (2003) (memorandum). 81. See generally, Fran Amendola, et al., Annotation, Papers and Articles in Jury Room; Viewing of Exhibits, 89 C.J.S. Trial §§ 804-06.

182

Volume 1, Issue 2


Untangling the Web mation on a jury verdict. In the Second Circuit, for example, the trial judge first determines whether the information had any potential for unfair prejudice. If the outside information added nothing to the evidence presented in court, or if the information was innocuous, further inquiry is not necessary. But if the information was clearly prejudicial—for example a review of outdated or incorrect data—the jury is canvassed to ascertain if they learned of the potentially prejudicial publicity. The court will often interview the jurors separately to determine the extent of the exposure and whether corrective measures should be taken.82 There is some precedent for formally allowing jurors to access outside information. In People v. Lambright, a defendant was convicted in the California Superior Court of two counts of second-degree murder.83 The trial court had instructed jurors that they had a right to read articles about the trial or obtain extrajudicial evidence by radio or television.84 The Supreme Court reversed and held that the prejudicial effect of the error was not removed by a general admonition to the jury not to consider the external evidence.85 But 16 months later, the same court, citing Lambright, found no prejudice when the trial judge told the jurors they could view telecasts, read newspapers, or listen to radio accounts of the trial proceedings as long as they did not let the reports affect their deliberations.86 Numerous decisions have held that jurors reading news accounts of a trial in which they are sitting does not constitute automatic grounds for a new trial, mistrial, or reversal.87 In addition, as a practical matter, scanning the Internet for news information may only rarely turn up relevant reports when, for example, only five percent of felony arrests ever receive media coverage.88

Does Outside Research Really Bias Jurors?

W

hile attorneys and judges restrict outside research based on the assumption that the information will bias jurors, psychologists and social scientists have conducted extensive scientific research to isolate the effect of outside information on juror decision-making. Instead of embracing such research, courts and commentators have generally dismissed the results of scientific studies and ignored research that questions whether outside information is really that harmful to jurors. A recent article on jury Internet usage states confidently: “Jurors may feel their research or communication is harmless and will not bias them, but this is untrue.”89 But the sole authority for this assertion is a 2008 article by trial strategy consultants, which cites several studies to conclude that “[r]esearch has demonstrated that jurors’ exposure to media 82. Hon. Robert S. Hunter, Juror hearing and reading news accounts of the trial, 1 Fed. Trial Handbook Crim. § 5:2 (4th ed. 2010) (citing United States v. Chang An-Lo, 851 F.2d 547 (2d Cir. 1988) (Second Circuit procedure)). 83. 39 Cal. Rptr. 209 (1964). 84. Id. at 210-11. 85. Id. at 211-12. 86. People v. Luker, 47 Cal. Rptr. 209, 215 (1965). 87. Andrea G. Nadel, Annotation, Juror’s Reading of Newspaper Account of Trial in State Criminal Case During its Progress as Ground for Mistrial, New Trial, or Reversal, 46 A.L.R. 4th 11, § 6 (1986 updated 2011); Andrea G. Nadel, Annotation, Juror’s Reading of Newspaper Account of Trial in Federal Criminal Case During its Progress as Ground for Mistrial, New Trial, or Reversal, 85 A.L.R. Fed. 13, § 4 (1987 updated 2011). 88. R. Frasca, Estimating the Occurrence of Trials Prejudiced by Press Coverage, 27 Judicature 162 (1988). 89. Timothy J. Fallon, Mistrial in 140 Characters or Less, 38 Hofstra L. Rev. 935, 963 (2010) (citing Ellen Brickman, et al., supra note 4, at 297). Reynolds Courts & Media Law Journal

183


Untangling the Web coverage and other extrinsic information about a case can be highly influential to their decision-making.”90 While, indeed, some research suggests that jurors might be influenced by pretrial publicity or other negative outside information about criminal defendants,91 other studies have reached the opposite conclusion.92 In short, an examination of the scientific data shows that the potentially harmful influence of outside information may not be as well-defined as courts and commentators have assumed.93 It is essential for attorneys and judges to review this literature and determine whether the underlying assumption about outside information—that it influences jurors such that they cannot evaluate trial information with fairness and objectivity—is based on any empirical evidence. The scientific literature may surprise members of the legal profession, who have been trained to believe that pretrial publicity and outside information always biases jurors.

Scientific Studies on the Effect of Outside Information on Juries Whether pretrial publicity or outside information actually biases jurors is an empirical question, not a legal one, and it is therefore important to carefully examine the results of scientific research on the issue. While the following review is not a comprehensive metaanalysis of these studies on the influence of outside information on jurors,94 a review of such studies shows that courts and legal commentators may be overlooking some important scientific research when jumping to the conclusion that outside information is always harmful to jurors during trial. As a preliminary matter, it is important to note that the majority of studies have been laboratory simulations, rather than field research of actual jury behavior.95 This appears to have a substantial effect on the results of these studies: while laboratory studies have found that pretrial publicity has an effect on jurors, those results have not been replicated in field research.96 A 2002 article actually pointed out this deficiency in research on prejudicial 90. Brickman, et al., supra note 4, at 289 (citing Neil Vidmar, Case Studies of Pre- and Midtrial Prejudice in Criminal and Civil Litigation, 26 Law & Hum. Behav. 73, 86 (2002)). The 2002 article does not support the proposition that extrinsic information is “highly influential.” Instead, the article points out deficiencies in research on prejudicial publicity and explains how courts have rejected research based on laboratory simulations rather than actual case studies. 91. See, e.g., Brickman, et al., supra note 4, at 290 n.4 (citing Amy L. Otto, S.D. Pendrod & H.R. Dexter, The Biasing Impact of Pretrial Publicity on Juror Judgments, 18 Law & Hum. Behav. 453 (1994)). 92. See Jon Bruschke & William E. Loges, Free Press vs. Fair Trials: Examining Publicity’s Roles In Trial Outcomes, 74-75 (2004) (criticizing prior research on the influence of pre-trial publicity on jurors, and concluding that “[p]retrial publicity is not the pernicious ogre previouslyreported,” but that “the issue is not one to dismiss as irrelevant . . .”). 93. Id., at 74-75. 94. For a meta-analysis of laboratory studies, see N. M. Steblay, J. Besirevic, S. M. Fulero, & B. Jimenez-Lorente, The Effects of Pretrial Publicity on Juror Verdicts: A Meta-analytic Review, 23 Law & Hum. Behav. 219 (1999) (meta-analysis of 44 empirical tests, representing 5,755 subjects). The article concludes that “data support the hypothesis that negative pretrial publicity significantly affects jurors’ decisions about the culpability of the defendant. . . . [While] initial observation of the data set showed mixed results as to the effect of PTP, it appears now with closer analysis that some of the nonsupportive results may simply have been due to lack of statistical power.” Id. at 229). 95. Christina A. Studebaker, et al., Assessing Pretrial Publicity Effects: Integrating Content Analytic Results, 24 Law & Hum. Behav. 317, 321 (2000) (“experimental studies of pretrial publicity . . . have typically been conducted in the lab and have been designed to assess the effect of pretrial publicity in general on juror judgments about a case”.) 96. Bruschke & Loges, supra note 92, at 29-72.

184

Volume 1, Issue 2


Untangling the Web publicity, and explained that courts have rejected research based on laboratory simulations rather than actual case studies.97 Another limitation of the studies is that they generally focus on the criminal context. Thus, with a few exceptions,98 research has generally not answered whether pretrial publicity affects civil litigation.

Studies on the Effect of Pre-Trial Publicity The majority of studies on the effect of outside information on jurors have focused on pretrial information, and have reached contradictory conclusions. 99 For example, a 1996 study that exposed mock jurors to publicity and then a mock acquaintance rape trial found that verdicts were not affected by the publicity.100 A Canadian study also found evidence that pretrial publicity did not influence trial outcomes.101 But another study, in which a researcher interviewed study participants before trial and determined potential bias before introducing media information surrounding a date-rape case, found that pretrial publicity actually offset jurors’ preexisting biases.102 And a 1997 metastudy of pretrial publicity studies found that the pretrial information did, indeed, have an influence.103 Another metastudy on the effect of outside information on juries described eight prior studies that found a pretrial publicity effect, and seven that found no effect.104

Little of the published research has attempted to correlate actual media coverage with the outcomes of actual trials. One such study, which examined newspaper coverage of all federal murder trials over a three-year period, found that “it does not appear that highly publicized defendants are treated much differently in terms of ultimate conviction rates than defendants who receive no publicity at all,”105 and that lower levels of publicity actually resulted in greater probability of conviction.106

Studies on the Effect of Pre-Trial Publicity and Other Factors Several studies have examined the effect of pretrial publicity in conjunction with other variables, such as trial evidence, judges’ instructions or jury deliberations. 97. Neil Vidmar, Case Studies of Pre- and Midtrial Prejudice in Criminal and Civil Litigation, 26 Law & Hum. Behav. 73, 74 (2002) (citing United States v. McVeigh, 918 F. Supp. 1467, 1473 (W.D. Okla. 1996)). 98. See infra notes 110-111, and accompanying text. 99. For an analysis of these studies see Christina A. Studebaker & Steven D. Penrod, Pretrial Publicity: The Media, the Law, and Common Sense, 3 Psychol. Pub. Pol’y & L. 428, 428 (1997) (proposing “a multimethod research approach by which meditational mechanisms can be assessed”). 100. C. Mullin, D. J. Imrich & D. Linz, The Impact of Acquaintance Rape Stories and Case-Specific Pretrial Publicity on Juror Decision-Making, 23 Comm. Res. 100, 115 (1996). The study also found that men were more likely to acquit, regardless of their exposure to the pretrial publicity. Id. 101. Freedman & Burke, infra, note 123. See also John S. Carroll, et al., Free Press and Fair Trial: The Role of Behavioral Research, 10 Law & Hum. Behav. 187 (1986); D. R. Pember, Does Pretrial Publicity Really Hurt? 23(3) Colum. Jour. Rev. 16 (1984); H.E. Rollings & J. Blascovich, The Case of Patricia Hearst: Pretrial Publicity and Opinion, 27 J. Comm. 58 (1977). 102. M. B. Kovera, The Effects of General Pretrial Publicity on Juror Decisions: An Examination of the Moderators and Mediating Mechanisms, 26 L. & Human Behav. 43 (2002). 103. Studebaker & Penrod, supra note 99, at 445. 104. Bruschke & Loges, supra note 92, at 29-72. 105. Jon Bruschke & William E. Loges, Relationship Between Pretrial Publicity and Trial Outcomes, 49(4) J. Comm, 104, 115 (1999). While this study found pretrial news coverage did not influence determinations of guilt or innocence, it was associated with the relative term of sentences. Id. at 113-14. 106. Id. at 114. Accord Amy L. Otto, S.D. Pendrod & H.R. Dexter, The Biasing Impact of Pretrial Publicity on Juror Judgments, 18 Law & Hum. Behav. 453 (1994). Reynolds Courts & Media Law Journal

185


Untangling the Web A 1994 study found that while negative pretrial information about a defendant’s character can influence jurors’ initial judgments about the defendant’s guilt, this bias is weakened by the presentation of trial evidence.107 Another study that utilized the facts of a famous rape-murder case found that those with more knowledge of the case were more likely to initially believe that the defendant was guilty, but that this bias was eliminated after the jurors read a summary of the actual trial evidence.108 Other studies investigated whether trial evidence and deliberation could eliminate the effect of pretrial publicity. In one study, jurors read biased articles and then viewed a taped trial seven days later: the publicity had no significant effect on verdicts.109 Another study concluded that while pretrial publicity affects verdicts, a 12-day continuance in the experimental “court” proceeding – which allowed jurors to ruminate on their verdicts – eliminated the effect that factually biased pretrial information had on the jurors.110 Other studies have found that the jury deliberations, along with jury instructions, can eliminate jurors’ pretrial biases.111 In a 1994 study on the effect of outside information on jurors during a product liability case, jurors found the defendant liable more often even when there was a limiting jury instruction.112 Another study found that while pretrial publicity in civil cases could create a juror bias, the bias was significantly reduced by a judicial admonition.113 A 1990 study found that when juries learn substantial and contrary information from evidence and judicial instructions during trial, they are capable of displacing potentially biasing information received before trial.114 In other words, prior beliefs can be diluted by new, relevant information.115 When trial evidence is strong, it can reduce the effect of bias and external information: “[T]he effect of irrelevant, inadmissible, or biasing information is reduced in its effect to the degree that relevant, probative evidence is available for the jurors’ consideration.”116 107. Amy L. Otto, S.D. Pendrod & H.R. Dexter, The Biasing Impact of Pretrial Publicity on Juror Judgments, 18 Law & Hum. Behav. 453, 462-63 (1994). 108. J. L. Freedman & T. M. Burke, The Effect of Pretrial Publicity: The Bernardo Case, 38 Can. J. Criminology 253, 263 (1996). In the case, which was “one of the most sensational cases in Canadian history,” Paul Bernardo (also known as Paul Teale) was convicted in the abduction, rape, and murder of two teenage girls. Id. at 257. Bernardo’s ex-wife, Karla Homolka, who was also involved in the abduction and murder, testified against her ex-husband and was also charged with committing dozens of rapes in a Toronto neighborhood. 109. J. L. Freedman, C. K. Martin & V. L. Mota, Pretrial Publicity: Effects of Admonition and Expressing Pretrial Opinions, 3 Legal & Criminological Psych. 255 (1998). 110. G. P. Kramer, N. L. Kerr, & J. S. Carroll, Pretrial Publicity, Judicial Remedies, and Jury Bias, 14 Law & Hum. Behav. 409, 424, 431-32 (1990). The study involved nearly 800 participants, including students and subjects from jury rolls. 111. K. London & N. Nunez, The Effect of Jury Deliberations on Jurors’ Propensity to Disregard Inadmissible Evidence, 85 J. Applied Psychol. 932 (2000). 112. S. Landsman & R.E. Rakos, A Preliminary Inquiry Into the Effect of Potentially Biasing Information on Judges and Jurors in Civil Litigation, 12 Behav. Sci. & L. 113-26 (1994). 113. Brian H. Bornstein, et al., Pretrial Publicity and Civil Cases: A Two-Way Street, 26 Law & Hum. Behav. 3 (2002). 114. Rita J. Simon, Does the Court’s Decision in Nebraska Press Association Fit the Research Evidence on the Impact on Jurors of News Coverage?, 29 Stan. L. Rev. 515 (1977). Accord Martin F. Kaplan, Cognitive Processes in the Individual Juror, in Norbert L. Kerr & Robert M. Bray, eds., The Psychol. of the Courtroom 197 (1982). But see Geoffrey P. Kramer et al., Pretrial Publicity, Judicial Remedies, and Jury Bias, 14 Law & Hum. Behav. 409 (1990) (finding judicial admonition had no effect and deliberations exacerbated negative effects of factual or emotional information). 115. Martin F. Kaplan & Lynn E. Miller, Reducing the Effects of Juror Bias, 36 J. Personality & Soc. Psychol. 1443, 1449 (1978). 116. Michael J. Saks, What Do Jury Experiments Tell Us About How Juries (Should) Make Decisions?, 6 S. Cal. Interdisc. L.J. 1, 28 (1997).

186

Volume 1, Issue 2


Untangling the Web

Giving The Internet A Second Chance The Inadequacy of Traditional Approaches

After judges and lawyers raise concerns about jurors turning to information from outside the courtroom, their most common recommendation is for courts to issue stronger admonitions to juries.117 Other suggestions include more vigorous voir dire, or banning devices such as cell phones from the courthouse.118 But courts are already taking these steps. In short, commentators have offered few new suggestions for how to respond to jurors who use the Internet. These suggested solutions contain an underlying assumption that external information biases jurors. This assumption restricts the judiciary’s options: if external information is always harmful, cell phone and Internet policies should not be liberalized. Those who hold this view often call for increasingly harsh sanctions, even criminal penalties, for jurors who access the Internet.119 These judicial standards for curbing outside information and pretrial publicity may be forming without consulting all empirical evidence on the actual effect of outside information.120 Studies examining the influence of external information question whether the fundamental assumption behind such punitive measures—that external information is always harmful—is correct. Instead, the results of these various studies suggest that courts ought to focus on the content and quantity of the information jurors receive, rather than on outright bans on outside information. Courts should manage the flow of information, rather than make unrealistic efforts to weed out all juror exposure to external information from sources such as the Internet. As Internet access becomes more instant and prevalent, the traditional courthouse—a “protective cocoon . . . where jurors calmly and dispassionately receive only relevant and reliable information based on evidentiary rules”121—will need to make dramatic changes to remain viable. For decades, judges and scholars have called for allowing better tools in the courtroom to help juries.122 For example, they have argued for engaging jurors in the legal process by providing trial notebooks summarizing key information, allowing jurors to take notes, relaxing rules of evidence, granting access to dictionaries and other reference materials, and allowing jurors to ask questions.123 These calls for boosting juror engagement continue

117. See, e.g., Ellen Brickman, et al., supra note 4. 118. See, e.g., Anita Ramasastry, Why Courts Need to Ban Jurors’ Electronic Communications Devices, Findlaw, Aug. 11, 2009, http://writ.news.findlaw.com/ramasastry/20090811.html. 119. Paul Elias, Courts finally catching up to texting jurors, Associated Press, Mar. 6, 2010, http://abcnews.go.com/US/wireStory?id=10028507. 120. G. Moran & B. L. Cutler, The Prejudicial Impact of Pretrial Publicity, 21 J. of Applied Social Psych. 345 (1991); J. R. P. Ogloff, Two Steps Forward and One Step Backward: The Law and Psychology Movement(s) in the 20th Century, 24 Law & Hum. Behav. 457 (2002). 121. Michael Hoenig, Juror misconduct on the Internet, N.Y. L.J., Oct. 8, 2009. 122. See, e.g., Douglas G. Smith, The Historical and Constitutional Contexts of Jury Reform, 25 Hofstra L. Rev. 377, 505 (1996). 123. Interview by Donald C. Dilworth with Judge B. Michael Dann, Arizona Superior Court, Waking up Jurors, Shaking Up Courts, Trial, July 1, 1997, at 20, http://www.thefreelibrary.com/_/print/PrintArticle.aspx?id=19634468; Hon. B. Michael Dann, “Learning Lessons” and “Speaking Rights”: Creating Educated and Democratic Juries, 68 Ind. L.J. 1229, 1241 (1993); William W. Schwarzer, Reforming Jury Trials, 1990 U. Chi. Legal F. 199, 137 (1990); Warren K. Urbom, Toward Better Treatment of Jurors by Judges, 61 Neb. L. Rev. 409, 425 (1982). Reynolds Courts & Media Law Journal

187


Untangling the Web to meet tacit approval but have rarely led to concrete reforms.124 As a result, the call for reform continues.125 Jurors want to know everything they can about a case so they can make informed decisions. But rather than promote the jury’s interest in truth and justice, courts tend to discourage curiosity and obscure information. For example, some courts still debate the “fairly recent innovation” of “allowing jurors to take notes during trial.”126 And while some evidence shows judicial resistance to note-taking may be waning, individual judges still have the final say, and resistance persists.127 Juries were not always this sheltered. For four hundred years after William the Conqueror’s reign, jurors were expected to investigate facts and “declare the truth” on the basis of personal knowledge.128 Even after sworn testimony became common in the Courts are competing with pocket- sixteenth century, jurors were still permitted to ask questions. It was only when lawyers sized encyclopedias inside every and judges began to assert the function of cell phone, so they will need to law-making and law-finding that “[the] struggle for control over the jury came to a explain to juries exactly why the head.”129 Rules of evidence then emerged to court rules exist. If a concrete, limit the information available to juries and evidence-based explanation cannot to control how the information was received.130 Jury power was ultimately curbed be proffered, perhaps these rules by strong demands from bankers, mershould be revised. chants, and industrialists for a more predictable—and sympathetic—legal system.131 It is also worth noting that the prohibition against note-taking arose at a time when most jurors were illiterate.132 Today, the legal profession may be justified in exercising caution in adopting jury innovations in some circumstances, but it seems absurd to continue many of these traditional practices. As trials become increasingly complex, juror comprehension tends to decline.133 124. ABA/Brookings Symposium, Charting a Future for the Civil Jury System 16 (1992). 125. Elizabeth C. Wiggins, What We Know and What We Need to Know About the Effects of Courtroom Technology, 12 Wm. & Mary Bill Rts. J. 731 (2004); See also citations supra note 123; citations infra note 126. 126. Nancy S. Marder, Juries and Technology: Equipping Jurors for the Twenty-First Century, 66 Brook. L. Rev. 1257, 1276. (2001). Although many would find it hard to believe, the merits of note-taking by jurors are still subject to some scholarly debate. See, e.g., Irwin A. Horowitz & Lynee ForsterLee, The Effects of Note-Taking and Trial Transcript Access on Mock Jury Decisions in a Complex Civil Trial, 25 Law & Hum. Behav. 373 (Aug. 2001); Steven D. Penrod & Larry Heuer, Tweaking Commonsense: Assessing Aids to Jury Decision Making, 3 Psychol., Pub. Pol’y & L. 259, 271 (1997); Victor E. Flango, Would Jurors Do a Better Job if They Could Take Notes?, 63 Judicature 436 (1979-80). 127. The Eighth Circuit, for example, has indicated that “[n]ote taking by jurors is not a favored procedure.” U. S. v. Darden, 70 F.3d 1507, 1537 (8th Cir. 1995). See generally, Sonja Larsen, Annotation, Taking and Use of Trial Notes by Jury, 36 A.L.R. 5th 255 (2010). 128. Blackstone’s Commentaries on the Law 673-77 (Bernard C. Gavit ed., 1941). 129. Morris S. Arnold, Law and Fact in the Medieval Jury Trial: Out of Sight, Out of Mind, 18 Am. J. Legal Hist. 267, 279 (1974). 130. Lawrence M. Friedman, A History of American Law 101 (3d ed. 2005). 131. Morton J. Horwitz, The Transformation of American Law 1780-1860 (1977) at 140-41. 132. Marder, supra note 126. 133. Matthew A. Reibera & Jill D. Weinberg, The Complexity of Complexity: An Empirical Study of Juror Competence in Civil Cases, 78 U. Cin. L. Rev. 929 (2010).

188

Volume 1, Issue 2


Untangling the Web Modern trials can involve hundreds of witnesses and thousands of exhibits: a panoply of information that jurors cannot store in their heads. Even in shorter trials, jurors would be well-served by note-taking. Psychologists have known for some time that the dual process of hearing and writing enhances retention.134 And trial judges are well within their authority to allow note-taking during trials.135 If courts are going to insist on controlling the flow of information during trial, they will need to accept innovations to improve juror comprehension, such as allowing jurors to take notes, to call and question witnesses, to review evidence and exhibits during deliberation, and to access reference materials. Many such practices are well-established in military tribunals, which allow jurors (known as “members�) to be quite engaged during trial.136 Courts in Colorado and Arizona have also taken steps to engage jurors by permitting them to deliberate as a case progresses.137 In the early 1990s, one hundred law professors, attorneys, judges, researchers, and representatives of business, insurance, and various interest groups met to consider the workings of the jury system and to recommend improvements. The participants did not agree about everything, but the majority strongly supported making jurors more active during trials: Jurors need not and should not be merely passive listeners in trials, but instead should be given the tools to become more active participants in the search for just results. To that end, trial procedures and evidentiary rules should take greater advantage of modern methods of communication and recognize modern understanding of how people learn and make decisions.138

A New Approach to Juror Internet Research Jurors want answers to their questions. Judges increasingly allow jurors to submit questions to the court.139 This is a good start. But courts are competing with pocket-sized encyclopedias inside every cell phone, so they will need to explain to juries exactly why the court rules exist. If a concrete, evidence-based explanation cannot be proffered, perhaps these rules should be revised. Either way, lawyers must be permitted to deliver useful information to jurors to reduce the desire to turn to outside sources. But even with these reforms, jurors are probably not going to stop looking at outside information. The best way to keep jurors away from Wikipedia and other Internet resources would be to sequester them without any access to electronic devices, but this is unrealistic. Also, sequestration is rarely practical on a large scale because it is prohibitively expensive and tends to promote mistrust for the jury system.140 Confiscating cell phones and similar devices during proceedings and deliberations might work, but may sow juror discontent and will not affect after-hours research. A more realistic response would be for attorneys and courts to conduct their own Internet research in advance to identify what information about the case is available online, 134. Elizabeth F. Loftus, Memory 19-20 (1980). 135. See, e.g., Johnson v. State, 887 S.W.2d 957 (Tex. Crim. App. 1994); see also Sonja Larsen, Annotation, Taking and Use of Trial Notes by Jury, 36 A.L.R. 5th § 255 (1996). 136. David A. Anderson, Let Jurors Talk: Authorizing Pre-Deliberation Discussion of the Evidence During Trial, 174 Mil. L. Rev. 92, 93-94 (2002). 137. Colo. Civ. Jury Instr. 1:4 (4th ed. 2010); Ariz. R. Civ. P. 39(f ); Paula L. Hannaford, Valerie P. Hans & G. Thomas Munsterman, Permitting Jury Discussions During Trial: Impact of the Arizona Reform, 24 L. & Hum. Behav. 359, 360 (2000); Janessa E. Shtabsky, Comment, A More Active Jury: Has Arizona Set the Standard for Reform with Its New Jury Rules?, 28 Ariz. St. L.J. 1009, 1028 (1996). 138. ABA/Brookings Symposium, supra note 124. 139. See infra note 141. 140. James P. Levine, The Impact of Sequestration on Juries, 79 Judicature 266 (1995). Reynolds Courts & Media Law Journal

189


Untangling the Web analyze that information, and then deal with it during trial. Although trial courts have not yet adopted this exact procedure, trial courts and attorneys have significant experience evaluating outside information before and during trial. In particular, courts routinely evaluate pretrial publicity, take judicial notice, and even allow jurors to ask questions during trial.141 Each of these practices provides a possible framework and precedent for evaluating new online sources of information that courts and jurors might access before or during civil trials. In general, federal courts have adopted managerial judging practices to sharpen issues and increase efficiency at trial. For example, pretrial discovery conferences, which are essentially mandatory for all civil parties in federal court,142 could allow parties to discuss what information about the case might already be available online and searchable by prospective jurors.143 This would be consistent with the purpose of pretrial conferences to “improv[e] the quality of the trial through more thorough preparation.”144 Courts also have experience evaluating outside information during the jury-selection phase of litigation, when it is common for parties to raise the issue of external influences,

141. See, e.g., United States v. Cassiere, 4 F.3d 1006 (1st Cir. 1993) (allowing jurors to ask eleven questions was not plain error); United States v. Douglas, 81 F.3d 324 (2d Cir. 1996) (harmless error to allow jurors to question witness); United States v. Hernandez, 176 F.3d 719 (3rd Cir. 1999) (allowing juror questioning of witnesses); United States v. Polowichak, 783 F.2d 410 (4th Cir. 1986) (disapproving of allowing jurors to verbally question witnesses but refusing to find prejudice); United States v. Callahan, 588 F.2d 1078 (5th Cir. 1979) (no error in allowing jurors to submit written questions); United States v. Feinberg, 89 F.3d 333 (7th Cir. 1996) (trial court has discretion to allow jurors to ask questions); United States v. Brockman, 183 F.3d 891 (8th Cir. 1999) (no prejudice in allowing jurors to ask questions); United States v. Gonzales, 424 F.2d 1055 (9th Cir. 1970) (no error to allow jury to submit written questions); Dobbins v. United States, 157 F.2d 257 (D.C. Cir. 1946) (no prejudice in allowing questions). State courts have also addressed the issue. See, e.g., People v. Majors, 75 Cal. Rptr. 2d 684 (Cal. App. 1998) (allowing jurors to ask questions); Watson v. State, 651 So. 2d 1159 (Fla. 1994) (allowing jurors to submit written questions); Commonwealth v. Urena, 632 N.E.2d 1200 (Mass. 1994) (not ineffective defense counsel to permit jurors to ask questions); Carter v. State, 234 N.E.2d 650, 652 (Ind. 1968) (error to forbid jurors to ask questions); Slaughter v. Commonwealth, 744 S.W.2d 407, 414 (Ky. 1987) (holding “the jury—of all people—has the right to have questions—proper questions—answered.”). See generally, Nancy S. Marder, Answering Jurors’ Questions: Next Steps in Illinois, 41 Loy. U. Chi. L.J. 727 (2010); Jeffrey S. Berkowitz, Note, Breaking the Silence: Should Jurors be Allowed to Question Witnesses During Trial?, 1991 Vanderbilt L. Rev. 177 (1991); Janessa E. Shtabsky, A More Active Jury: Has Arizona Set the Standard for Reform with its New Jury Rules?, 28 Ariz. St. L.J. 1009 (1996); Natasha K. Lakamp, Deliberating Juror Predeliberation Discussions: Should California Follow the Arizona Model?, 45 UCLA L. Rev. 845 (1998); A. Barry Cappello & G. James Strenio, Juror Questioning: The Verdict is in, Courts are Increasingly Allowing Jurors to Question Witnesses, Following Procedural Safeguards, 36 Trial, June 2000, at 44, 46 (citing cases and concluding that the overwhelming majority of federal and state courts addressing the issue have accepted questioning by jurors). 142. Fed. R. Civ. P. 16(d),(f ). See also Charles R. Richey, Rule 16 Revisited: Reflections for the Benefit of Bench and Bar, 139 F.R.D. 525, 527 (1991). The federal rules for criminal proceedings allow the court to order a similar conference. See Fed. R. Crim. P. 17.1. States have similar provisions. See also Ministrelli Const. Co. v. Monroe County Road Com’n, 395 N.W.2d 38 (Mich. 1986) (discussing Mich. Ct. R. 2.401(B), requiring parties to appear for pretrial conference); Paugh & Farmer, Inc. v. Menorah Home for Jewish Aged, 472 N.E.2d 704 (Ohio 1984); American Home Assur. Co. v. Essy, 3 Cal. Rptr. 586 (Cal. Ct. App., 3d Dist. 1960) (discussing court rule requiring pretrial conferences in all civil cases); Jenkins v. Devine Foods, 70 A.2d 736 (N.J. 1950) (discussing mandatory pretrial conference); State ex rel. Kennedy v. District Ct. 194 P. 2d 256 (Mont. 1948) (discussing mandatory pretrial conference). 143. Roger S. Haydock, et al., Fundamentals of Pretrial Litigation 257 (6th ed. 2007). 144. Fed. R. Civ. P. 16(a)(4).

190

Volume 1, Issue 2


Untangling the Web such as pretrial publicity.145 During this phase, a defendant might request a change of venue on grounds that extensive pretrial publicity would make it impossible to receive a fair trial.146 Although extensive pretrial publicity can violate the right to an impartial jury, the Supreme Court has affirmed that jurors are not disqualified just because they have been exposed to outside information about a case: In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public . . . and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case.147

Instead, the key issue is whether jurors can lay aside their impressions or opinions and render a verdict based on the evidence presented in court.148 Based on this standard, trial courts could compare the information freely available online with evidence the parties plan to present at trial to determine whether it would be possible for jurors to objectively analyze trial evidence. The practice of controlling the presentation of evidence and allowing jurors to ask questions during trial could also provide a standard for evaluating the outside information that is available online. Courts have broad discretion to allow jurors to ask questions during trial.149 In addition, the trial court can also control the progress and structure of a trial and 145. See e.g., Neb. Press Ass’n v. Stuart, 427 U.S. 539, 554-55 (1976); Murphy v. Florida, 421 U.S. 794 (1975); Irvin v. Dowd, 366 U.S. 717, 722–23 (1961). 146. See, e.g., United States v. Skilling, 554 F.3d 529, 558 (5th Cir. 2009) (explaining the difference between presumed and actual prejudice), vacated on other grounds, 130 S. Ct. 393 (2010); Sheppard v. Maxwell, 384 U.S. 333 (1966). 147. Irvin v. Dowd, 366 U.S. 717, 722–23 (1961). 148. Id. 149. United States v. Brockman, 183 F.3d 891, 899 (8th Cir. 1999) (citing United States v. George, 986 F.2d 1176, 1178 (8th Cir. 1993)) (“allowing juror questions is a matter committed to the sound discretion of the district court and is not prejudicial per se”), cert. denied, 528 U.S. 1080 (2000); United States v. Douglas, 81 F.3d 324, 326 (2d Cir. 1996) (court has discretion to allow questions but should not encourage such practice); United States v. Nivica, 887 F.2d 1110, 1123 n.9 (1st Cir. 1989), cert. denied, 494 U.S. 1005 (1990) (expressing no disapproval of allowing jurors to ask questions); Landt v. State, 87 P.3d 73, 80 (Alaska Ct. App. 2004) (error in one or more procedural aspects of juror questioning was harmless); Bradford v. State, 722 So. 2d 858 (Fla. Dist. Ct. App. 1998) (same); State v. Culkin, 35 P.3d 233, 251 (Haw. 2001) (trial court did not err by allowing jurors to pose questions to witnesses through the court); Trotter v. State, 733 N.E.2d 527, 532 (Ind. Ct. App. 2000), transfer denied, 753 N.E.2d 1 (Ind. Jan 11, 2001) (table) (trial court’s decision to submit juror question was not abuse of discretion); Com. v. Britto, 744 N.E.2d 1089 (Mass. 2001) (while “allowing jurors to question witnesses has the potential for introducing prejudice, delay, and error into the trial,” such prejudice is not presumed) (quoting Commonwealth v. Urena, 632 N.E.2d 1200, 1205-06); City of Springfield v. Thompson Sales Co., 71 S.W.3d 597 (Mo. 2002) (while trial court’s process for soliciting juror questions was improper, it is not grounds for reversal and can be corrected upon remand); People v. Majors, 75 Cal. Rptr. 2d 684 (Cal. Ct. App. 1998) (allowing jurors to ask questions); Watson v. State, 651 So. 2d 1159 (Fla. 1994) (allowing jurors to submit written questions); Commonwealth v. Urena, 632 N.E.2d 1200 (Mass. 1994) (not ineffective defense counsel to permit jurors to ask questions); Carter v. State, 234 N.E.2d 650, 652 (Ind. 1968) (error to forbid jurors to ask questions); Slaughter v. Commonwealth, 744 S.W.2d 407, 414 (Ky. 1987) (holding “the jury—of all people—has the right to have questions—proper questions—answered.”). But see United States v. Polowichak, 783 F.2d 410 (4th Cir. 1986) (disapproving of allowing juror questions, but stating that such questions, if permitted, should be submitted in writing); United States v. Thompson, 76 F.3d 442, 448 (2d Cir. 1996) (holding trial court abused its discretion by allowing jurors to submit questions); United States v. Cassiere, 4 F.3d 1006, 1018 (1st Cir. 1993) (noting that allowing jurors to ask questions in criminal trials is a procedure “fraught with peril”). See generally, Jonathan M. Purver, Annotation, Propriety of Jurors Asking Questions in Open Court During Course of Trial, 31 A.L.R. 3d 872 (1970). Reynolds Courts & Media Law Journal

191


Untangling the Web make decisions about witness examination and the order in which evidence is presented.150 For example, the judge can call witnesses out of turn,151 or summarize facts and comment on evidence, so long as the judge does not become an advocate for a particular side.152 Such practices are reviewed only for “plain error.”153 The underlying purpose of these practices is to assist the jury in understanding the information presented in court and facilitate a fair trial. In addition to structuring the trial and allowing jurors to ask questions, trial judges also have the authority to call and question witnesses and examine the evidence presented.154 In particular, a court may call witnesses under Federal Rule of Evidence Rule 614(a)—another important departure from the adversarial system in which the parties have primary responsibility for adducing evidence.155 Like the practice of allowing jurors to ask questions, Rule 614 offers precedent for allowing courts to go beyond the evidence counsel has chosen to present at trial. The court’s power to take judicial notice under Evidence Rule 201 is another important way for judges to control cases and evaluate outside evidence.156 Under the doctrine of judicial notice, a court can consider a matter of law or fact as established in a case without 150. Geders v. United States, 425 U.S. 80, 86 (1976) (noting “The trial judge must meet situations as they arise and to do this must have broad power to cope with the complexities and contingencies inherent in the adversary process.”) 151. Id. (judge “may determine generally the order in which parties will adduce proof ”); Jones v. Dugger, 928 F.2d 1020, 1025 (11th Cir. 1991) (“A trial judge has broad discretion over the mode and order of interrogating witnesses and presenting evidence.”); Pivnick v. White, Getgey & Meyer Co., 552 F.3d 479, 489 (6th Cir. 2009). 152. United States v. Ray, 250 F.3d 596, 602 (8th Cir. 2001) (“A court may comment on the evidence to assist the jury”), cert. denied, 535 U.S. 980 (2002); United States v. Coutchavlis, 260 F.3d 1149 (9th Cir. 2001) (upholding judge’s decision to summarize evidence); Logue v. Dore, 103 F.3d 1040, 1045 (1st Cir. 1997) (“a trial judge in the federal system retains the common law power to question witnesses and to analyze, dissect, explain, summarize, and comment on the evidence”); United States v. Filani, 74 F.3d 378, 385 (2d Cir. 1996) (“the trial court may actively participate and give its own impressions of the evidence or question witnesses, as an aid to the jury so long as it does not step across the line and become an advocate for one side”). 153. United States v. Brockman, 183 F.3d 891, 899 (8th Cir. 1999). 154. Glasser v. United States, 315 U.S. 60, 82 (1942); Collins v. Kibort, 143 F.3d 331, 335 (7th Cir. 1998); United States v. Gonzalez–Soberal, 109 F.3d 64, 72 (1st Cir. 1997); United States v. Gray, 105 F.3d 956, 963 (5th Cir. 1997); United States v. Albers, 93 F.3d 1469, 1485 (10th Cir. 1996); Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) ( judge may participate in the examination of witnesses to clarify evidence); Harris v. Steelweld Equip. Co., Inc., 869 F.2d 396 (8th Cir. 1989), cert. denied, 493 U.S. 817 (1989); Kyle v. United States, 402 F.2d 443 (5th Cir. 1968); Pollard v. Fennell, 400 F.2d 421 (4th Cir. 1968); United States v. Miller, 395 F.2d 116 (7th Cir. 1986), cert. denied, 393 U.S. 846 (1968); United States v. Carabbia, 381 F.2d 133 (6th Cir. 1967), cert. denied, 389 U.S. 1007 (1967). 155. Fed. R. Evid. 614. The Advisory Committee Notes to Rule 614 explain that: “The authority of the judge to question witnesses is also well established. The authority is, of course, abused when the judge abandons his proper role and assumes that of advocate, but the manner in which interrogation should be conducted and the proper extent of its exercise are not susceptible of formulation in a rule. The omission in no sense precludes courts of review from continuing to reverse for abuse.” 156. Fed. R. Evid. 201; Charles Alan Wright & Kenneth W. Graham, Jr., Policy of Rule 201; Historical Background, 21B Fed. Prac. & Proc. Evid. § 5102 (2d ed. 2010); See also Edmund M. Morgan, Judicial Notice, 57 Harv. L. Rev. 269, 270 (1944) (“In determining the content or applicability of a rule of domestic law, the judge is unrestricted in his investigation and conclusion. He may reject the propositions of either party or of both parties. He may consult the sources of pertinent data to which they refer, or he may refuse to do so. He may make an independent search for persuasive data or rest content with what he has or what the parties present. He may reach a conclusion in accord with the overwhelming weight of available data or against it.”)

192

Volume 1, Issue 2


Untangling the Web formal proof by any party.157 Rule 201 permits a court to take judicial notice of a fact “not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”158 While Rule 201 has traditionally been used to take judicial notice of outside information available in print—such as dictionaries, government documents, maps, encyclopedias, and treatises—courts have taken judicial notice of Internet resources.159 While some courts have refused to take judicial notice of such Internet content, many others have agreed to do so.160 Courts have even been asked to take judicial notice of information obtained from Wikipedia, and some have done so.161 Courts have also taken judicial notice of other Internet sources such as blogs.162 157. Fed. R. Evid. 201. 158. Id. 159. See Hinkle v. Hartsell, 509 S.E.2d 455, 457-58 (N.C. Ct. App. 1998) (providing an extensive list of information that has been judicially noticed). See, e.g., United States v. Bervaldi, 226 F.3d 1256, 1266 n.9 (11th Cir. 2000) (taking judicial notice of time of sunrise listed on government website); Levan v. Capital Cities/ABC, Inc., 190 F.3d 1230, 1235 n.12 (11th Cir. 1999) (taking judicial notice of a Prime Interest Rate, as provided on the Federal Reserve Board website); Reece v. United States, 119 F.3d 1462, 1468 (11th Cir. 1997) (taking judicial notice of Drug Enforcement Administration and the National Institute on Drug Abuse webpages); Modesto Irrigation Dist. v. Pacific Gas & Elec. Co., 61 F. Supp. 2d 1058, 1066 (N.D. Cal. 1999) (taking judicial notice of documents submitted to the Federal Energy Regulatory Commission), reversed on other grounds by, Modesto Irrigation Dist. v. PG&E, 54 Fed. Appx. 882 (9th Cir. 2002); Lord Cairns v. Franklin Mint Co., 107 F. Supp. 2d 1212, 1216 (C.D. Cal. 2000); Abdur-Raheem v. Whitaker, 98 F. Supp. 2d 295, 297 n.1 (E.D.N.Y. 2000); In re Extradition of Gonzalez, 52 F. Supp. 2d 725, 731 n.12 (W.D. La. 1999) (MapQuest); Bridgeway Corp. v. Citibank, 45 F. Supp. 2d 276, 278 n.2 (S.D.N.Y. 1999). 160. Compare, Steele v. McMahon, No. CIV S-05-1874 DAD P, 2007 WL 2758026 at *8 n.5 (E.D. Cal. Sept. 21, 2007) (refusing to take judicial notice of a Wikipedia article); Flores v. State, No. 14-06-00813-CR, 2008 WL 4683960 at *2 n.3 (Tex. Ct. App. Oct. 23, 2008) (refusing to take judicial notice of Wikipedia article); Capcom Co. v. MKR Group, Inc., No. C 08-0904 RS, 2008 WL 4661479, at *4 (N.D. Cal. Oct. 20, 2008); Rickher v. Home Depot, Inc., 535 F.3d 661, 666 (7th Cir. 2008) (citing the Wikipedia definition of “wear and tear”) with Helen of Troy, L.P. v. Zotos Corp., 235 F.R.D. 634, 640 (W.D. Tex. 2006) (taking judicial notice “that urea is an acid having a very low pH”); Aquila v. Nationwide Mut. Ins. Co., No. 07-2696, 2008 WL 4899359 at *1 n.4 (E.D. Pa. Nov. 13, 2008) (taking judicial notice of Wikipedia article); Ash v. Reiley, 433 F. Supp. 2d 37, 50 (D.C. 2006) (taking “judicial notice of the fact that a machete is commonly understood to be an extremely large weapon. The blade of a machete is typically 18 to 24 inches long.”); Fharmacy Records v. Nassar, 572 F.Supp.2d 869 (E.D. Mich. 2008) (citing Wikipedia for date artist released particular record); Lee F. Peoples, infra note 159 (arguing courts should not take judicial notice of Wikipedia entries under Rule 201 because the information is disputable and accuracy can be reasonably questioned). 161. See generally, Lee F. Peoples, The Citation of Wikipedia in Judicial Opinions, 12 Yale J. L. & Tech. 1, 12 (2010); Helen of Troy, L.P. v. Zotos Corp., 235 F.R.D. 634, 639 (W. D. Tex. 2006) (using Wikipedia to take judicial notice of the fact that urea is an acid having a very low pH); Aquila v. Nationwide Mut. Ins. Co., No. 07-2696, 2008 WL 4899359, at *1 n.4 (E.D. Pa. 2008) (using Wikipedia to take judicial notice of the fact that the South Philadelphia Sports Complex “houses the city’s professional sports teams, and incorporates the currently-named Wachovia Center, Wachovia Spectrum, Lincoln Financial Field, and Citizens Bank Park”); Ash v. Reilly, 433 F.Supp.2d 37, 51 (D. D.C. 2006), appeal dismissed, No. 06-5202, 2006 WL 2521267 (D.C. Cir. Aug. 8, 2006) (using Wikipedia to take judicial notice of the fact that a machete is commonly understood to be an extremely large weapon); Fharmacy Records v. Nassar, 572 F.Supp.2d 869 (E.D. Mich. 2008) (using Wikipedia to take judicial notice of fact that DMX did not release the album Grand Champ, containing the song “Shot Down,” until September 16, 2003). 162. Lee F. Peoples, The Citation of Blogs in Judicial Opinions, 13 Tul. J. Tech. & Intell. Prop. 39, 57 (2010); Gurley v. Sheahan, No. 06C3454, 2009 WL 2178685 at *2 n.4 (N.D. Ill. July 21, 2009) (takReynolds Courts & Media Law Journal

193


Untangling the Web While the ABA Model Code of Judicial Conduct163 places some ethical limitations on the court’s ability to conduct outside research of “adjudicative facts”—facts at issue in a particular case—judges can always independently ascertain and use “legislative facts” that inform the court’s judgment when deciding questions of law or policy.164 Although definitions vary, a legislative fact is one that can be applied universally and does not change from case to case.165 For example, a trial court has taken judicial notice of facts regarding the history and politics of Liberia in a judgment creditor’s action to enforce a Liberian money judgment.166 In the context of the Internet, one court searched the Internet for the term “Strange Music” to help decide whether consumers would be confused by the name similarity between a hip-hop label and a music composer.167 In sum, courts already have many of the tools and legal bases for analyzing online information, including procedures for evaluating pretrial publicity, sound discretion to permit jurors to ask questions, and power to take judicial notice. Together, these practices offer a good starting point for developing innovations that grant jurors broader access to information available online.

Conclusion

T

rials are extremely artificial environments in which jurors are essentially told to ignore whatever they know about the law or the facts of a case and to render a verdict based on restricted information sifted through complex evidentiary rules. There is a serious question about whether this system remains viable now that jurors are accustomed to answering questions with the click of a hand-held button. After reviewing the scientific literature on the effect of outside information on juror decision-making, it may not always make sense to so zealously screen information and attempt to control every bit of information that jurors receive. At a time when jury participation is at an all-time low and jurors report feeling disengaged, it is appropriate to reevaluate some of the underlying assumptions that have given rise to the strict and artificial courtroom environment in which jurors are only given part of every story. The jury is supposed to be a “gratuitous public school” that

ing judicial notice that “2005 was an especially hot summer” based on WGN Weather Center Blog for the statement); United States v. Burke, No. 2:08CR00274, 2009 WL 89681, at *3 (E.D. Pa. Jan. 13, 2009) (taking judicial notice of a blog sponsored by the Philadelphia Daily News stating that approximately one hour before the arrest, skies were “overcast” and that it was “spritzing out”). But see Musgrove v. Helms, 2011 WL 1225672, at *4-*6, 2011-Ohio-1614 (Ohio App., 2d Dist. Apr. 1, 2011) (party’s statement of income on MySpace is inadmissible hearsay); accord Griffin v. State, No 74 (Md. Apr. 28, 2011), available at http://mdcourts.gov/opinions/coa/2011/74a10.pdf (MySpace page not adequately authenticated). 163. ABA Model Code of Jud. Conduct R.2.9(C); R.2.9 cmt. 6 (2007) (“A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noted.”). See also Elizabeth G. Thornburg, The Curious Appellate Judge: Ethical Limits on Independent Research, 28 Rev. Litig. 131, 159 (2008). 164. See generally, Thornburg, supra note 163, at 136. The distinction between legislative and judicial facts is well-recognized in the doctrine of judicial notice, but categorizing particular pieces of evidence can be difficult. Richard B. Cappalli, Bringing Internet Information to Court: Of “Legislative Facts,” 75 Temp. L. Rev. 99, 100-01 (2002) (discussing the practical difficulty of making the theoretical distinction between legislative and adjudicative facts); Kurtis A. Kemper, Annotation, What Constitutes “Adjudicative Facts” Within Meaning of Rule 201 of Federal Rules of Evidence Concerning Judicial Notice of Adjudicative Facts, 150 A.L.R. Fed. 543 (1998). 165. Kenneth Davis, An Approach to Problems of Evidence in the Administrative Process, 55 Harv. L. Rev. 364, 404–07 (1942). See also Kenneth Davis, Judicial Notice, 55 Colum. L. Rev. 945 (1955). 166. Bridgeway Corp. v. Citibank, 45 F. Supp. 2d 276 (S.D.N.Y. 1999). 167. Strange Music, Inc. v. Strange Music, Inc., 326 F. Supp. 2d 481, 492 (S.D.N.Y. 2004); see also United States v. Harris, 271 F.3d 690, 708 n.1 (7th Cir. 2001) (Wood, J., dissenting) (consulting Internet maps).

194

Volume 1, Issue 2


Untangling the Web empowers citizens with information about how to take charge of social affairs.168 Perhaps it is time to start having a serious discussion about adding new technology to this civics classroom and giving jurors the tools they need to carry out their task.

168. Alexis de Tocqueville, 1 Democracy in America 266 (Henry Reeve trans., George Adlard 2d ed. 1838) (1830). Reynolds Courts & Media Law Journal

195


Untangling the Web

196

Volume 1, Issue 2


Say “Cheese!”

Cameras and Bloggers in Wisconsin’s Courtrooms By Stacy Blasiola1

W

hen the Supreme Court of Wisconsin decided in 1979 to allow “persons or organizations which are part of the news media,”2 to use cameras in courtrooms, the media landscape at the time was comprised primarily of network TV affiliates, newspapers, and AM and FM radio stations. After more than thirty years of cameras in the courtroom, the prediction made in 1979 by Professor David Fellman that, “The day is not far distant when photography in the courtroom will arouse no more excitement than the presence of newspaper reporters in the courtroom,”3 has essentially come to be, but with one caveat: Around the country many states are engaged in a debate that focuses not on whether recording devices should be allowed, but rather, who should be granted the privilege. Particularly, many questions surround bloggers and their role in courtroom reporting. Despite the proliferation of blogs as online reporting tools, their legitimacy in courtrooms has yet to be solidified. For example, in Ohio a blogger was denied access to audio record and photograph a public divorce court proceeding after the judge determined that a weblog does not constitute a news organization.4 In Florida, a Jacksonville judge attempted to ban a blogger’s courtroom reports, but the ban was later overturned in an appeals court.5 1. Thanks to Professor David Pritchard for his guidance on this project. 2. Wis. Sup. Ct. R. 61.12, available at http://www.wicourts.gov/sc/scrule/DisplayDocument. html?content=html&seqNo=1099. Chapter 61 of the Wisconsin Supreme Court’s rules is reproduced in Appendix A of this article. 3. Report of the [Wis.] Supreme Court Committee to Monitor and Evaluate the Use of Audio and Visual Equipment in the Courtroom (April 1, 1979), at 73 (unpublished report, available from the Wisconsin Supreme Court). Professor David Fellman, chair of the political science department at the University of Wisconsin, served as chair of the committee. 4. Bai Macfarlane, Media denied access to Ohio court proceedings, EnergyPublisher.com, (Oct. 1, 2010), http://www.energypublisher.com/article.asp?id=40850; see also Erker v. Erker, Case No. 09 LU 070365 (Ohio Comm. Pleas, Dom. Rel. Div. judgment entry Sept. 21, 2010) (denying blogger’s request to cover divorce proceeding); Ohio ex. rel. Macfarlane v. Court of Common Pleas, No. 10-1771 (Ohio order Dec. 15, 2010) (dismissing blogger’s action seeking to record divorce proceeding), available at http://www. sconet.state.oh.us/pdf_viewer/pdf_viewer.asp?pdf=674441.pdf. 5. Morris Publishing Co., LLC v. State, 2010 WL 363318, 38 Media L. Rep. 1245 (Fla. App., 1st Dist. Jan. 20, 2010) (unpublished); see also Steve Patterson, Appeals court tosses court-blogging order against Jacksonville.com: New media devices can still be used in tandem at Dubose murder trial, Fla. TimesReynolds Courts & Media Law Journal

197


Say “Cheese!” Complicating the issue of blogging is the vast array of devices that are now finding their way into courts. In Wisconsin, Supreme Court Rule 61 clearly outlines that cameras and recording equipment can be used in courtrooms. But when Rule 61 was written, the Internet did not exist, so it is unclear how the rule applies to new media devices. Since the rule offers no definition of “news media,” judges are left to determine, on an individual basis, who counts as “news media” and whether such reporters may exercise the privilege of recording from a courtroom.6 No official evaluation of the functioning of Rule 61 has been conducted in the 32 years that it has been in place. Consequently, this paper will evaluate the current media environment in Wisconsin’s courtrooms. It addresses the issue of whether non-traditional Understanding the reasoning that media news reporters, particularly bloggers, are granted the same recording rights in led to the passing of Wisconsin Wisconsin’s courtrooms as radio, television, Court Rule 61 offers insights into and newspaper reporters. To determine how how the rule is to be applied and non-traditional media are handled by the whether bloggers fit into the rule as courts, an understanding of the history of Rule 61 and how it is currently applied to it is currently written. traditional media must first be explained. An overview of the arguments used to initially allow cameras in the courtroom is presented to see whether extending these rights to bloggers is a natural extension of the rule. Next, a portrait of the current application of Rule 61 is presented. The data for this study are drawn from interviews and surveys of media coordinators of the Wisconsin circuit courts. This paper concludes by suggesting that, as traditional media outlets continue to cut staff and the number of reporters available to exercise the privilege necessarily declines, it stands to reason that bloggers be allowed to exercise the privileges in Rule 61. By examining the history and current application of Wisconsin’s camera access rules, this analysis may provide a model for other states with similar rules regarding cameras in the courts.

Wisconsin’s History with Cameras in the Courtroom

W

hen cameras were officially allowed into Wisconsin courtrooms on July 1, 1979, it was the culmination of a decade’s worth of deliberation that included two committees appointed by the Supreme Court to evaluate the use of electronic media in courtrooms, a provisional one-year trial run that allowed courts to experiment with cameras and audio equipment, and an ensuing report that detailed the results. So, despite Wisconsin’s reputation as one of the most accommodating states for cameras in the courtroom,7 Union, Jan. 21, 2010, http://jacksonville.com/news/metro/2010-01-20/story/appeals_court_tosses_ court_blogging_order_against_jacksonvillecom. 6. Today’s media landscape is vastly different from what existed in the 1970s, when Rule 61 was put into effect. A recent Pew Research Center Report found that, “the internet has surpassed newspapers and radio in popularity as a news platform on a typical day and now ranks just behind TV.” Kristen Purcell, Lee Rainie, Amy Mitchell, Tom Rosenstiel and Kenny Olmstead (Pew Internet & American Life Project), Understanding the Participatory News Consumer: Summary of Findings, http://www. pewinternet.org/Reports/2010/Online-News/Summary-of-Findings.aspx?r=1 (March 1, 2010). 7. Kermit Netteburg, Does research support the Estes ban on cameras in the courtroom?, 63 Judicature 466, 469 (1980).

198

Volume 1, Issue 2


Say “Cheese!” an investigation of the processes that led up to Rule 61 reveals more caution and trepidation than outright acceptance. Understanding the reasoning that led to the passing of Rule 61 offers insights into how the rule is to be applied and whether bloggers fit into the rule as it is currently written. It wasn’t until 1970 that Wisconsin’s Supreme Court officially began to probe the idea of allowing cameras in the courtroom.8 At that time, the biggest barrier to open courts for the media was Rule 14 of the Code of Judicial Ethics, which stated, A judge shall not, when it will interfere with the judicial process or fair trial, permit any radio or T.V. reproductions or taking of pictures in the courtroom during recess or before or after proceedings, or in adjoining corridors or offices; nor shall he permit any radio or T.V. reproductions or taking of pictures in the courtroom at any time.9

The Wisconsin Supreme Court was in the process of reviewing a petition to amend Rule 14 when, by court order, it appointed a committee dubbed the “Committee to Recommend Rules on the Use of Sound and Camera Equipment in the Courtroom.”10 The committee was composed of four judges, two attorneys, two newspaper representatives, one photographer, one radio broadcaster, one TV broadcaster, and one scholar.11 Its members were tasked with helping to make the Court . . . more fully informed on the question of whether specific uniform rules of court can be devised for promulgation by the supreme court which would recognize reasonable demands of the news media to take pictures and to record voices in the courtroom and at the same time not tend to endanger the right to a fair trial by any litigant or to degrade the dignity of the court or to interfere with the administration of justice.12

The committee was unable to reach a consensus on which of the proposed media – still photography, radio, or television – should be permitted. However, a majority agreed that, with the proper safeguards, still photography could be allowed.13 Eight of the twelve mem 8. See Committee to Recommend Rules on Use of Sound and Camera Equipment in the Courtroom (David Fellman, chair), Final Report, (n.d. [1970]) at 1, reprinted in Report of the [Wis.] Supreme Court Committee to Monitor and Evaluate the Use of Audio and Visual Equipment in the Courtroom (April 1, 1979), supra note 3, App. F. There has been little litigation on the question of camera access to Wisconsin courts. See K. H. Larsen, Broadcasting, recording, or photographing court proceedings, 100 A.L.R.2d 1404 (1965) (listing no Wisconsin cases), superseded by Validity, propriety, and effect of allowing or prohibiting media’s broadcasting, recording, or photographing court proceedings, 14 A.L.R.4th 121 (1982) (same). In fact, in one of the few Wisconsin cases involving a court closures, the trial court closed a preliminary examination in a sexual assault case to all observers except representatives of news media. See State ex rel. Stevens v. Circuit Court for Manitowoc County, 141 Wis.2d 239, 414 N.W.2d 832 (Wis. 1987) (finding that closure to general public, except representatives of news media, violated defendant’s right to public trial). 9. Id. (quoting Wis. Code Jud. Ethics, Rule 14 [1968]). This was similar to judicial ethics codes in most other states at the time, and was based on Canon 3A(7) of the American Bar Association Canons of Judicial Ethics, adopted by the ABA in 1924. 10. The report does not mention the source of the petition, merely quoting the court’s order creating the committee, which stated that “This court has under consideration for sometime [sic] a petition requesting it to reconsider and modify Rule 14 of the Code of Judicial Ethics.” Id. at 1 (quoting Wisconsin Supreme Court order of Jan. 27, 1970). There is perhaps some hint that the petition came from the state’s news media in the subsequent sentence: “The court has heard arguments and has seen demonstrations by the news media of sound equipment and of cameras in the courtroom.” Id. 11. Id. 12. Id. at 1. 13. Id. at 7. Reynolds Courts & Media Law Journal

199


Say “Cheese!” bers agreed that radio broadcasting should be allowed.14 As for television, only half of the committee was in favor of allowing television cameras into courtrooms.15 Those in favor of allowing television argued that “the electronics [sic] news media, holding a commanding position in the world of modern communications, are entitled to a full opportunity to report courtroom events in their own manner,” indicating that a medium’s access to a courtroom is somewhat relative to the importance of its place in informing society as a whole.16 Furthermore, the committee explained that, “since a trial is a public event to begin with, this merely expands the public in which the event occurs,” and that “broadcasting would strengthen public confidence in the courts as instruments of justice.”17 A minority of the committee argued against allowing television cameras, because the media would draw more attention to some cases than others, and that “this factor of selectivity will unquestionably affect the proceedings in some fashion…”18 The minority also feared that broadcasting from the courtroom would place a psychological burden on the people involved in the proceedings. For example, the minority argued, “if witnesses know that they are speaking to a large unseen audience, they may become either overly bold or overly timid and that some witnesses might be unwilling to testify at all…”19 The minority also felt that judges, who are elected in Wisconsin, would feel a pressure to perform for the cameras.20 Lastly, the minority of the committee expressed concern for the amount of additional work that would be placed on judges if broadcasting from courtrooms were allowed.21 As a result of this disagreement, the committee’s recommendation was to allow television cameras sparingly and for educational purposes, with half of the committee recommending the condition that all parties agree to the filming.22 Despite a majority opinion in favor of still cameras and radio broadcasts in the 1970 committee report, it was not until December 23, 1977 that the Wisconsin Supreme Court issued an order to temporarily suspend Rule 14 of the Code of Judicial Ethics and allow cameras and voice recording equipment in the courtroom.23 The suspension was put in place for a one-year period, beginning April 1, 1978.24 Guidelines to administer the use of cameras in the courtroom were adopted and sent by the Wisconsin Supreme Court to the circuit courts.25 Additionally, two weeks into the experiment, then-Chief Justice Beilfuss sent a memo to all judges to help explain how the guidelines should be applied.26 14. Id. at 8. 15. Id. at 6. 16. Id. at 6. 17. Id. at 6. 18. Id. at 3. 19. Id. at 7. 20. Id. at 7. 21. Id. at 7. 22. Id. at 5. 23. Report of the [Wis.] Supreme Court Committee to Monitor and Evaluate the Use of Audio and Visual Equipment in the Courtroom (April 1, 1979), supra note 3, at 1. 24. Id. at 2; see also Petition of Post-Newsweek Stations, Florida, Inc., 370 So.2d 764, 787 (Fla. 1979), Appendix 2 (Feb. 7, 1979 memo from National Center for State Courts listing Wisconsin among the states then allowing camera coverage of courts on an experimental basis). 25. Report of the [Wis.] Supreme Court Committee to Monitor and Evaluate the Use of Audio and Visual Equipment in the Courtroom (April 1, 1979), supra note 3, at 2. These guidelines later became Rule 61. 26. Id. at 4.

200

Volume 1, Issue 2


Say “Cheese!” To monitor the experiment, the Court also ordered another committee to evaluate and report on the results. The 1978 committee was named, “The Supreme Court Committee to Monitor and Evaluate the Use of Audio and Visual Equipment in the Courtroom.” The Committee monitored the use of cameras in twelve cases and proceedings through the use of court observers. Immediately following trials, surveys were given to jurors, counsel, judges, and witnesses to evaluate their perceptions and experiences with cameras in the courtroom.27 The 1978 Committee used the surveys to directly address the concerns raised by the 1970 Committee. For example, judges were asked, “Did the presence of (a) television cameras, (b) radio equipment, and (c) still cameras seriously increase your supervisory duties?”28 Witnesses were asked, “If you had a choice, would you have preferred to testify with or without (a) television cameras, (b) radio equipment, and (c) still cameras in the courtroom?”29 Jurors were asked whether they thought that any of the recording equipment altered the behavior of the judge, the counsel, or the witnesses, or the fairness of the trial. All participants were asked whether the equipment was distracting. The Committee also surveyed the 181 circuit court judges in the state to gauge their experience with and feelings toward permanently allowing cameras in the courtroom. The committee received 55 responses, 44 of which did not indicate objections to cameras in the courtroom.30 After concluding their research, the Committee recommended various changes to the guidelines. One of the proposed changes was to refer to the “guidelines” as “rules,” to create a sense of formality.31 Additionally, the Committee recommended that the experiment with camera coverage of court proceedings in Wisconsin should be made permanent. The Committee takes the position that television is here to stay; it is not only a fact of life, but a very important fact of life in our society. The television people are, like the newspapers, in the business of gathering and disseminating news. In fact, it is widely believed that more people rely upon television for news than upon newspapers.32

So, although television faced the most scrutiny in the early history of cameras in courtrooms in Wisconsin, the argument regarding its pervasiveness and the willingness of citizens to rely on television as their primary news source seemed to tip the scales as to whether television cameras should be allowed. After the 1978 Committee submitted its report, the Wisconsin Supreme Court never suspended the experiment with cameras in the courtroom. Instead, the experiment’s guidelines for filming, photographing, and audio recording in courtrooms were adopted as rules on June 21, 1979. Wisconsin’s news media have been able to film, photograph, and record audio in courtrooms since the rules went into effect.33

27. Id. at 6. 28. Id., App. B (question 2). 29. Id., App. D (question 4). 30. Id. at 54. 31. Id. at 61. 32. Id. at 72. 33. In State v. Kennedy, 161 Wis.2d 933, 469 N.W.2d 247 (table), 1991 WL 74181(text) (Wis. App. 1991), rev. dismissed as improvidently granted, 167 Wis.2d 742, 482 N.W.2d 652 (Wis. April 22, 1992), the court noted that “the rules in Chapter 61 do not by their express language indicate that they apply only to jury trials.” Id. at *2. Reynolds Courts & Media Law Journal

201


Say “Cheese!”

Application of the Rule to Non-Traditional Media

I

n his memo explaining the initial Wisconsin experiment allowing audio-visual coverage of court proceedings, Chief Justice Beilfuss noted that one of the guidelines for the experiment “limits the right to use audio or visual equipment in the courtroom to representatives of the news media. Individuals who are simply spectators, relatives, tourists, or curiosity seekers may not use audio or visual equipment in the courtroom.”34 After the guidelines from the experiment became permanent, Beilfuss’ position that only news media personnel can record in courtrooms was adopted by the courts. For example, in two cases defendants attempted to record their own proceedings. In each instance, the respective judges determined that the defendants were not acting members of the news media, and both defendants were prohibited from recording.35 While these cases show that defendants are not members of the news media under Rule 61, they still leave open to question the classification of bloggers, documentarians, or other non-traditional media, and how the court applies the language of Rule 61 to such nontraditional media. Another challenge to Rule 61 addressed the placement of media personnel within the courtroom. In State v. Kennedy, the judge allowed camera crews in the jury box despite the provision of Rule 61.05(1) which states that “[t]he trial judge shall restrict camera equipment and operators to areas open to the public.” Despite this breach, the appeals court found no cause for prejudice or any indication that the press’ position in the jury box hindered the trial in any way.36

Other States Clarify Their Rules

D

espite the few documented challenges to Wisconsin’s Rule 61, it appears that courts around the country are taking steps to clarify the outdated language of their own media rules. For example, the Supreme Court of New Hampshire decided in 2008 to expand its rules on the use of cameras and recording devices in courtrooms. The court issued an order that confirmed that “laptop computers, personal digital assistants, cell phones, and related electronic devices are allowed in the courtroom,” and can be used by both members of the press and the public.37 Additionally, it clarified that the use of cell phone cameras is acceptable.38 But some judges do not respond enthusiastically to broadly written rules. In Connecticut, where the rules define news media as “any person or entity that is regularly engaged in the gathering and dissemination of news,”39 Judge James Graham questioned the inclusion 34. Report of the [Wis.] Supreme Court Committee to Monitor and Evaluate the Use of Audio and Visual Equipment in the Courtroom (April 1, 1979), supra note 3, at 5. 35. See Masters v. Eisenbart, 164 Wis.2d 751, 477 N.W.2d 364 (table), 1991 WL 236498 (text) (Wis. App. 1991), rev. denied, 477 N.W.2d 288 (Wis. Oct 21, 1991) (table, No. 90-2897) and State v. Baritzky, 125 Wis.2d 570, 371 N.W.2d 430 (table, text in Westlaw) (Wis. App. 1985), rev. denied, 125 Wis.2d 584, 375 N.W.2d 216 (Wis. Sept. 10, 1985) (table, No. 84-1821-CR-NM). 36. State v. Kennedy, supra note 33. 37. Order Concerning Use of Electronic Devices in the Courtroom (N.H. Jan. 11, 2008), available at http:// www.courts.state.nh.us/supreme/orders/order011108.pdf; see also Dan Tuohy, NH bids to make courts current with technology, The Union Leader (Manchester, N.H.), Jan. 15, 2008, http://www.unionleader.com/article.aspx?headline=NH+bids+to+make+courts+current+with+technology&articleId=e0 cd1c27-acab-4ad4-a54e-7eb72fb7de8f. 38. Id. 39. Conn. Super. Ct. R. 1-11B, Media Coverage of Civil Proceedings (eff. Jan. 1, 2008), in 2011 Connecticut Practice Book, at 101, available at http://www.jud.ct.gov/Publications/PracticeBook/PB_2011.pdf; see also Daniel Tepfer, Judges worry about new media in courts, Conn. Post (Bridgeport, Conn.), June 30, 2007.

202

Volume 1, Issue 2


Say “Cheese!” of bloggers who may not follow the court’s rules regarding electronic coverage. “Many of us here contemplate the rules to mean TV stations, but it could be anyone who has an Internet site or a blogger or the local gadfly who has a weekly access channel TV show,”40 he told The Connecticut Post. “My concern is there is no way for a trial judge to monitor that the rules are being followed in a civil matter.”41 Elsewhere, a judge in Florida initially banned a blogger from a courtroom,42 reasoning that a Florida rule, also written in 1979, allowed only television and still cameras in the courtroom and thus did not include laptop computers.43 But the judge then modified his ruling in an amended order. He reiterated the rule’s limitation of two devices in the courtroom at one time, but reinterpreted the language as to the type of devices that can be used, holding that the rule “in no way prohibits the media from substituting more modern, unobtrusive types of electronic media…provided that the number is still limited to two.”44 Reporters responded to the equipment limitation by alternating their uses of electronic equipment to stay within the allotted amount.45 States and individual judges continue to struggle with the dated language of laws and rules regarding media access to court proceedings.46 While some states have decided to amend their rules to include new media and modern technology, others have left it to judges to determine how the language of the old media should apply to the new.47

Survey of Wisconsin’s Media Coordinators: Methodology

I

n Wisconsin, the media access rules of the late 1970s still govern courtrooms. The remainder of this paper uses qualitative and quantitative methods to shed light on the way Wisconsin’s judges interpret and apply the language of Wisconsin’s Rule 61 to new media. An obvious route to understanding if bloggers have been denied access to record courtroom proceedings is through an evaluation of appeals. But Rule 61.10 bars appeals of a judge’s ruling on application of the rules covering media access to trials.48 Consequently, there is no record of appeals to consult to determine if any bloggers or other non-traditional media reporters have been denied access under Rule 61. Therefore, the most logical method to evaluate the current application of the rule is to survey those who apply it. The state of Wisconsin has 72 counties, which are grouped into ten judicial adminis-

40. Tepfer, id. 41. Id. 42. Fla. v. Dubose, No. 16-2006-CF-018284-AXXX-MA (Fla. Cir. Ct., Duval County order Jan. 15, 2010); see Steve Patterson, T-U appeals blogging order, which changed, [Jacksonville, fla.] Times Union, Jan 16, 2010, http://jacksonville.com/news/metro/2010-01-16/story/t_u_appeals_blogging_order_which_changed. 43. See Fla. R. Jud. Admin. 2.450 (b) 1 and 2. 44. Steve Patterson, supra note 42. 45. Id. 46. See, e.g., Adriana C. Cervantes, Note, Will Twitter Be Following You in the Courtroom?: Why Reporters Should Be Allowed To Broadcast During Courtroom Proceedings, 33 Hastings Comm. & Ent L. J. 133 (2010). 47. See Ahnalese Rushmann, Courtroom Coverage in 140 Characters, 33(2) News Media & the Law 28 (2009), http://www.rcfp.org/news/mag/33-2/courtroom_coverage_in__characters_28.html. 48. See Wis. Sup. Ct. R. 61.10: Resolution of Disputes. A dispute as to the application of this chapter in a court proceeding may be referred only to the chief judge of the administrative district for resolution as an administrative matter. An appellate court shall not exercise its appellate or supervisory jurisdiction to review at the request of any person or organization seeking to exercise a privilege conferred by this chapter any order or ruling of a trial judge or chief judge under this chapter.” Reynolds Courts & Media Law Journal

203


Say “Cheese!” trative districts.49 To help manage the logistics of cameras in the state’s courtrooms, Rule 61.02 (1) appoints a media coordinator for each district.50 Where districts are too large for one person to manage, more than one coordinator serves in that district, and appointments are designated by county. Conversely, in more rural areas, media coordinators may serve more than one county.51 Because judges are allowed some flexibility in their application of the standards,52 the role of media coordinators varies from county to county. However, the primary responsibilities of all media coordinators – who are usually employees of local media outlets – include mediating requests from the media for courtroom access to the presiding judge.53 Furthermore, because Rule 61.03 limits the The most logical method to of cameras that can operate inside evaluate the current application of number a courtroom,54 media coordinators also arthe rule to non-traditional media is range pools when high-profile cases attract multiple media outlets. When arranging pool to survey those who apply it. coverage, media coordinators determine which media outlet will handle the filming and help to make sure the other stations have access to the feed. Also, in high profile cases, media coordinators often relay the media instructions from the judge to the media personnel covering the case. At the time that this survey was conducted, there were 246 circuit court judges in Wisconsin.55 But there were only 35 media coordinators to handle the media requests for all ten judicial districts.56 Because the media coordinators, theoretically, manage the media requests for the judges, the same information that could be generated by surveying all 246 judges could be acquired more easily through a survey of the smaller group of media coordinators. Therefore, 49. Wisconsin Court System, About the Courts: Circuit Courts, http://www.wicourts.gov/about/organization/circuit/index.htm (last updated Jan, 13, 2011). 50. Wis. Sup. Ct. R. 61.02 (1) provides that “The Wisconsin Freedom of Information Council shall designate for each judicial administrative district a coordinator who shall work with the chief judge of the judicial administrative district and the trial judge in a court proceeding in implementing this chapter.” 51. Wis. Sup. Ct. R. 61.02 (1). 52. See, e.g., Wis. Sup. Ct. R. 61.02 (2): “In the discretion of the trial judge, this notice rule may be waived if cause for the waiver is demonstrated.” 53. See Wis. Sup. Ct. R. 61.02 (2) and 61.03 (4). The latter provides that “The media coordinator shall be responsible for receiving requests to engage in the activities authorized by this chapter in a particular court proceeding and shall make the necessary allocations of authorizations among those filing the requests.” 54. “Except as otherwise provided in sub. 2), 3 television cameras, each operated by one person, and 3 still photographers, each using not more than 2 cameras, are authorized in any court proceeding. Priority consideration shall be extended to one of the 3 cameras to televise an entire proceeding from beginning to end. 2) The trial judge may authorize additional cameras or persons at the request of the media coordinator or may limit the number of cameras if circumstances permit the increase or require the limitation.” Wis. Sup. Ct. R. SCR 61.03. 55. This number has since increased to 249. Wisconsin Court System, About the Courts: Circuit Courts, http://www.wicourts.gov/about/organization/circuit/index.htm (last updated Jan, 13, 2011). 56. While the Wisconsin Courts website listed 39 media coordinators when this survey was conducted, after extensive efforts to contact the individuals listed, there appeared to actually be 35 working coordinators in the state. The site now lists 41 coordinators, with seven vacancies listed. Wisconsin Court System, Media Information: Media Coordinators List, http://www.wicourts.gov/news/mediacoord.htm (last modified Nov. 1, 2010).

204

Volume 1, Issue 2


Say “Cheese!” the data for this study are drawn from in-depth interviews of three media coordinators, and surveys that were sent to all media coordinators in the state. Interviews were conducted in-person or over the phone, while surveys were conducted online. All 35 coordinators were emailed a link to the survey; 20 coordinators responded.

Survey Results: Media Access to Wisconsin Courts Courts’ Application of the Media Access Rules

Across counties, and down to individual judges’ courtrooms, many variations exist in the applications of the rules prescribed in Rule 61. However, for nearly all the counties, the first step to gaining access to a courtroom with a camera or recording device is to make a media request to the court. According to Rule 61.03 (4), all media requests must go through the media coordinator.57 In practice, however, the way the request is made depends on the county in which the proceeding is held. In Milwaukee County, the reporter bypasses the media coordinator and makes a call directly to the judge’s clerk. The purpose of the call is not so much to request access, but more to inform the court that a camera will be present.58 Comparatively, in Kenosha County, a reporter is asked to email the media coordinator, who then passes the request along to the judge and waits to hear whether the judge accepts the request. The media coordinator then informs the reporter of the judge’s decision.59 In some counties, the coordination of the requests by various media outlets is the most important aspect in determining whether a reporter will be allowed to film or photograph in a judge’s courtroom.60 Although Rule 61.02 (2) states that requests must be made three days in advance of the proceeding,61 the enforcement of this condition depends on the county and in some cases, the particular judge to whom the request is made. As one coordinator explained, Kenosha County enforces it aggressively. If you do not follow the parameters of the rule – I think it’s 72 hours, although many of our judges believe it’s 48 hours – if you don’t put in a request 48 hours in advance, judges have booted cameras from their courtroom and, they have the right to do that.62

Yet in other counties, the rules tend to be very lenient. Brown County coordinator Brian Kerhin explained, [A]round here the media coordinator very rarely has to get involved . . . very few if any of the judges demand three days notice in writing that we’re coming. The law certainly would allow them to demand that if they would go by the strict letter of the Supreme Court Rules. But frankly, [for] most of them, it’s such old hat now that TV cameras might show up; basically they like a courtesy call to know that we’re coming, but it’s really not even a permissions thing.63

57. Wis. Sup. Ct. R. 61.03 (4). 58. Interview with Herman Ward, Milwaukee County coordinator and Managing Editor, CBS 58 (WDJTTV), in Milwaukee, Wis. (Mar. 22, 2010). 59. Telephone Interview with Jesse Stephen, Kenosha County coordinator and Court Reporter, Kenosha News, (Mar. 12, 2010). 60. See Wis. Sup. Ct. R. 61.03 (4) “In the absence of advance media agreement on disputed equipment or personnel issues, the trial judge shall exclude all audio or visual equipment from the proceeding.” 61. See Wis. Sup. Ct. R. 61.02 (2):“If possible, the trial judge shall be given notice, at least 3 days in advance, of the intention of the media to bring cameras or recording equipment into the courtroom. In the discretion of the trial judge, this notice rule may be waived if cause for the waiver is demonstrated.” 62. Telephone Interview with Jesse Stephen, supra note 59. 63. Telephone Interview with Brian Kerhin, Brown County coordinator and Assignment Manager, WLUKTV (Green Bay, Wis.) (Apr. 2, 2010). Reynolds Courts & Media Law Journal

205


Say “Cheese!” The size of the county seemed to play a direct role in how involved the media coordinator is in the day-to-day operations of handling media requests and how strictly the 72-hour minimum notification rule is enforced. Because larger counties have more cases to handle, the logistics of managing media requests would be far more difficult if every request went through the media coordinator. For example, Herman Ward, who serves as the media coordinator in Milwaukee County, the most populated county in Wisconsin, explained that rather than handle each media request himself, In Milwaukee County, I have [reporters] call the court directly. Usually they talk to the clerk, the judge’s clerk. They say, “Hey, I’d like to have a camera in court for this particular case.” By and large, judges are ok with that. In other counties I know they call the media coordinator and say, “Hey, can you call the judge for me?” But, because of the volume of cases in Milwaukee County, and because the judges don’t really mind the phone call, I just have them call the courts directly.64

As far as the three-day notification period is concerned, Ward said, [B]ecause we deal with such a high volume of court cases, the usual 72 hours of notification doesn’t really apply. If we give the judges 24 hours, or sometimes in preliminary hearing court, a couple hours of notification that we want to be there, we should be fine.65

Within counties, there is some variation amongst judges in their handling of media requests. As coordinator Jesse Stephen explained, “Certain judges prefer that I email the requests directly to them. Others prefer that I email them directly to their clerks. Some judges respond to the requests and approve them.”66 Among the media coordinators surveyed, 13 of the 20 who responded reported that they receive some form of request and then relay the request to the judge or the judge’s clerk. Clearly, within Rule 61, judges are allowed a decent amount of flexibility to enforce the rule in the manner that best serves their districts. Accordingly, the responsibilities delegated to the media coordinators depend upon the district and the judge they are serving.

Judges’ Considerations In Evaluating Requests by Traditional Media

Despite the many variations in interpretation of the rule, there were some consistencies in the media coordinators’ descriptions of the process. Primarily, they reported that judges are less concerned about who is doing the filming or recording than about a reporter making the initial request, and the reporter’s ability to operate quietly and unobtrusively once in the courtroom. If reporters adhere to the guidelines prescribed by the rule, the coordinators saw little reason for the request to be denied. In some cases, this depended entirely upon the timeframe within which the reporter submitted the request. Stephen explained that judges tend to approve timely requests: “ . . .[A]s long as we’re within the time frame, they never reject them. I really don’t think they have any grounds to do that.”67 However, having access to a courtroom with a camera or recording device does not necessarily mean a reporter has an absolute right to stay.68 It is imperative that a reporter 64. Interview with Herman Ward, supra note 58. 65. Id. 66. Telephone Interview with Jesse Stephen, supra note 59. 67. Id. 68. The authority of the judge is made very clear in Sup. Ct. R. 61.01 (1), which provides that “The rules of conduct in this chapter do not limit or restrict the power, authority, or responsibility otherwise vested in the trial judge to control the conduct of proceedings before the judge. The authority of the trial

206

Volume 1, Issue 2


Say “Cheese!”

Media Requests to Wisconsin Court Media Coordinators

In the past two years, have you received requests to record, photograph, or videotape courtroom proceedings from any of the following? Yes No Unsure Television Station 19 1 0 Daily Newspaper 16 3 1 Weekly Newspaper 14 6 0 Radio Station 13 6 1 Documentary Film Maker 6 14 1 Cable Television Station 3 17 0 Citizen with a News-Oriented Blog or Website 2 18 0 Magazine 2 18 1 Professional Online Journalist (not affiliated with 1 19 0 radio, television, newspaper, or magazine) Student Journalist 0 20 0 conducts his or her work, “while not disrupting the proceedings,” Ward said. “Because that’s one thing judges hate, if proceedings are disrupted by the media. If you can be there and be unobtrusive, they generally don’t mind.”69 Kerhin explained the importance of operating unobtrusively by describing a very high profile murder case:70 [The judge] had a job to do. We [reporters] had a job to do. And as long as us having a job to do didn’t affect him doing his job and administering a fair trial, he was generally okay with that. Just like any judge, he had his concerns about interruptions in the courtroom, showing jurors, the noise in the courtroom. Like, the print journalists wanted to have a laptop so they could transmit photos without having to wait three hours for a break. So they wanted a laptop, and he’s concerned about typing noise. So, those are the kinds of things he was more concerned with, [rather] than who’s staffing the pool.71

Operating in a respectful manner involves more than just remaining quiet and low-profile while proceedings are in progress.72 It is also a matter of arriving and setting up before proceedings start and working with any other media outlets that are covering the same case.

Media Access Requests

To determine whether reporters from non-traditional media outlets are attempting to exercise the privileges outlined in Rule 61, media coordinators were asked whether they judge over the inclusion or exclusion of the press or the public at particular proceedings or during the testimony of particular witnesses is applicable to any person engaging in any activity authorized by this chapter.” 69. Interview with Herman Ward, supra note 58. 70. Kerhin was referring to the 2007 trial that ended in the conviction of Steven Avery for the murder of photographer Teresa Halbach. The high profile of the case stemmed in part from the fact that the defendant had been convicted of rape and attempted murder in 1985, then was released after he was exonerated by DNA evidence in 2003. See Tom Kertscher, Avery found guilty of killing woman, [Milwaukee] J. Sentinel, March 19, 2007, http://www.jsonline.com/news/wisconsin/29388834.html. 71. Telephone Interview with Brian Kerhin, supra note 63. 72. Wis. Sup. Ct. R. 61.07 prohibits recording or broadcast of attorney-client or bench conferences, while Wis. Sup. Ct. R. 61.08 bars operation of audiovisual equipment during recesses. In State v. Brice, 145 Wis.2d 906, 430 N.W.2d 380 (table), 1988 WL 100370 (text), at *2 (Wis. App. 1988), rev. denied, 146 Wis.2d 877, 430 N.W.2d 919 (Wis. Sep 13, 1988) (table), the court rejected a convict’s arguments that his attorney was deficient because the attorney did not seek suppression of a videotape used as evidence against him that had been filmed in court during a recess. Reynolds Courts & Media Law Journal

207


Say “Cheese!” had received any media requests from citizens with a news-oriented blog or website, documentary film makers, magazines, professional online journalists, or student journalists. The number of requests a media coordinator receives depends entirely upon the district in which the coordinator works. Regardless of the number, however, all of the media coordinators surveyed reported receiving requests from media outlets to cover court proceedings. Table 1 illustrates the types of media outlets from which media coordinators had received requests in the two years prior to 2010. Television stations were the most common source of requests, followed by daily newspapers, weekly newspapers, and then radio stations. Documentary filmmakers made requests to six media coordinators, while cable television stations made requests to three coordinators. Two coordinators received requests from citizen bloggers, the same number that received such requests from magazine reporters. Only one coordinator received a request from a professional online journalist not affiliated with a formal news organization, and none of the coordinators recalled receiving any requests from student journalists. Despite the low number of requests from non-traditional media reported in the survey, some of the media coordinators surveyed believe that the future will only bring more non-traditional requests and that at some time in the future, the Wisconsin Supreme Court will have to determine how these requests should be handled. Highlighting the differences between traditional and non-traditional media, Ward mused, [T]raditional media is pretty top to bottom. They understand the rules; they understand what they can shoot, what they can’t shoot. Non-traditional media, if someone wants to bring in a little handheld camera, or somebody wants to post it on their Facebook account or something like that, that’s something we’re going to have to deal with. Because, those people, do the rules apply to them? And that, I don’t know. That’s something that the Supreme Court is going to have to rule on. Because, at this point, are you just a spectator or are you representative of a media outlet? If you’re representative of a media outlet, you have certain rules that you have to abide by. As a spectator? It’s a little bit fuzzy.73

When asked whether bloggers had ever made a request to her, Stephen explained, “No, but I have wondered about that, given that community journalists and bloggers are getting more involved. I guess, technically, anyone has a right. We just had a couple of documentary filmmakers who wanted to get in and I had to submit a request for them.”74 Another survey participant wrote, “ . . . rapidly changing technology seems likely to change court coverage within the next 12 months. Live blogging, raw video feeds and more are coming to the rural areas of the state.”75

Conclusion: Extending Wisconsin’s Court Access Rules to Bloggers

T

he historical section of this paper outlined several of the reasons that Wisconsin Supreme Court Rule 61 was implemented. Analyzing these reasons, it seems to follow that the rule should extend to bloggers. When Rule 61 was created, the inclusion of a particular medium was based on its significance to the public as a news source. So, for example, allowing television cameras in Wisconsin courtrooms was a result of the dominant position that television news held in society at the time, and the belief that “television is here to stay.”76 This reasoning extends

73. Interview with Herman Ward, supra note 58. 74. Telephone Interview with Jesse Stephen, supra note 59. 75. Survey respondents who were not interviewed in person or by phone were promised anonymity. 76. Report of the [Wis.] Supreme Court Committee to Monitor and Evaluate the Use of Audio and Visual Equipment in the Courtroom (April 1, 1979), supra note 3, at 72.

208

Volume 1, Issue 2


Say “Cheese!” to newer, digital media as well. Use of the Internet as a news platform has grown to rival newspapers and radio, so Rule 61 should be extended to cover Internet media as well. Historically, another reason cited for the inclusion of a particular medium under Rule 61 was the medium’s purpose in gathering information. That is, if a medium is used to disseminate information about the courts in the spirit of educating the public about the proceedings, then it should be allowed to cover courtroom proceedings.77 Because the barriers to publishing have been brought down, citizens may function as journalists if their intention is to disseminate information to a larger audience. Those citizens who have a history of news reporting, and who have amassed an online audience should, based on this reasoning, also have the ability to record proceedings in courtrooms. The trepidation expressed by the media coordinators that non-traditional reporters would not understand courtroom decorum mirrors the sentiments of some members of the 1970 and 1977 committees towards traditional media reporters. But professional media personnel have learned how to operate in courtrooms without affecting proceedings or creating distractions, and there is little reason to expect a different result from non-traditional reporters. Furthermore, the access rights of Rule 61 do not override the judge’s authority in the courtroom. So, if a blogger were to create a distraction, a judge could simply remove the blogger from the courtroom, as a judge would do to any other person disrupting a proceeding. The fact that low numbers of requests from non-traditional media were reported may simply mean that extending coverage of Rule 61 to non-traditional reporters is a nonissue in Wisconsin. However, with such access requests increasing in other states, that seems unlikely. It is more likely that other possibilities explain the lack of media requests. Perhaps non-traditional journalists simply are not aware of the process required to gain access to courtrooms. From the interviews with media coordinators, it appears that professional journalists are fortunate to have the processes explained by their predecessors, who instruct them how to contact the court system for clarifications. Bloggers, on the other hand, tend to work outside of the networks created in formal institutions and may simply be unaware of how to gain access. While I have argued that Rule 61 should naturally be extended to cover non-traditional reporters, such a move does not come without problems, particularly from a logistical point of view. For example, because Rule 61 allows judges to limit the number of cameras in their courtrooms, nearly all the media coordinators work with traditional television stations to pool feeds. The process of pooling requires shared knowledge and equipment. A blogger who simply wishes to record on a handheld device, for example, may lack the tools and know-how to contribute to or partake from the established media pool. The foundation for allowing media access to courtrooms in Wisconsin was the concept that open courts allow for social confidence in the court system. As an early adopter of cameras in courtrooms, Wisconsin has a history of media-friendly policies. Allowing bloggers and non-traditional media to access the courts under Rule 61 would greatly expand the outlets through which the citizens of Wisconsin can view their court system at work.

77. Id. at 73. Reynolds Courts & Media Law Journal

209


Say “Cheese!”

Appendix A Wis. Sup. Ct. R., Chap. 61

Rules Governing Electronic Media And Still Photography Coverage Of Judicial Proceedings JUDICIAL COUNCIL COMMITTEE’S NOTE, 1979: The following rules, called rules governing electronic media and still photography coverage of judicial proceedings, were adopted by the supreme court on June 21, 1979, effective July 1, 1979. The rules were originally numbered 1 to 12 and have been clarified and numbered SCR 61.01 to 61.12 for uniformity and convenience. SCR 61.01 Authority of trial judge. (1) These rules of conduct in this chapter do not limit or restrict the power, authority or responsibility otherwise vested in the trial judge to control the conduct of proceedings before the judge. The authority of the trial judge over the inclusion or exclusion of the press or the public at particular proceedings or during the testimony of particular witnesses is applicable to any person engaging in any activity authorized by this chapter. (2) In this chapter, “trial judge” includes any judicial officer who conducts a public proceeding. SCR 61.02 Media coordinator. (1) The Wisconsin freedom of information council shall designate for each judicial administrative district a coordinator who shall work with the chief judge of the judicial administrative district and the trial judge in a court proceeding in implementing this chapter. Geographically large judicial administrative districts shall be subdivided by agreement between the council and the chief judge, with a coordinator designated for each subdistrict. (2) If possible, the trial judge shall be given notice, at least 3 days in advance, of the intention of the media to bring cameras or recording equipment into the courtroom. In the discretion of the trial judge, this notice rule may be waived if cause for the waiver is demonstrated. SCR 61.03 Equipment and personnel. (1) Except as otherwise provided in sub. (2), 3 television cameras, each operated by one person, and 3 still photographers, each using not more than 2 cameras, are authorized in any court proceeding. Priority consideration shall be extended to one of the 3 cameras to televise an entire proceeding from beginning to end. (2) The trial judge may authorize additional cameras or persons at the request of the media coordinator or may limit the number of cameras if circumstances permit the increase or require the limitation. (3) One audio system for radio broadcast purposes is authorized in any court proceeding. Audio pickup for all media purposes shall be made through any existing audio system in the court facility, if practical. If no suitable audio system exists in the court facility, microphones and related wiring shall be as unobtrusive as possible. (4) The media coordinator shall be responsible for receiving requests to engage in the activities authorized by this chapter in a particular court proceeding and shall make the necessary allocations of authorizations among those filing the requests. In the absence of advance media agreement on disputed equipment or personnel issues, the trial judge shall exclude all audio or visual equipment from the proceeding.

210

Volume 1, Issue 2


Say “Cheese!” SCR 61.04 Sound and light criteria. Only audio or visual equipment which does not produce distracting light or sound may be used to cover a court proceeding. Artificial lighting devices shall not be used in connection with any audio or visual equipment. Only equipment approved by the trial judge in advance of the court proceeding may be used during the proceeding. SCR 61.05 Location of equipment and personnel. (1) The trial judge shall designate the location in the courtroom for the camera equipment and operators. The trial judge shall restrict camera equipment and operators to areas open to the public, but the camera equipment and operators shall not block the view of persons seated in the public area of the courtroom. (2) Camera operators shall occupy only the area authorized by the trial judge and shall not move about the courtroom for picture taking purposes during the court proceeding. Equipment authorized by these rules shall not be moved during the proceeding. SCR 61.06 Courtroom light sources. Modifications in the lighting of a court facility may be made only with the approval of the trial judge. Approval of other authorities may also be required. SCR 61.07 Conferences. Audio pickup, broadcast or recording of a conference in a court facility between an attorney and client, co-counsel, or attorneys and the trial judge held at the bench is not permitted. SCR 61.08 Recesses. Audio or visual equipment authorized by this chapter shall not be operated during a recess in a court proceeding. SCR 61.09 Official court record. Notwithstanding any film, videotape, photography or audio reproduction made in a court proceeding as a result of this chapter, the official court record of the proceeding is the transcript of the original notes of the court reporter made in open court or pursuant to an order of the court. SCR 61.10 Resolution of disputes. A dispute as to the application of this chapter in a court proceeding may be referred only to the chief judge of the administrative district for resolution as an administrative matter. An appellate court shall not exercise its appellate or supervisory jurisdiction to review at the request of any person or organization seeking to exercise a privilege conferred by this chapter any order or ruling of a trial judge or chief judge under this chapter. SCR 61.11 Prohibition of photographing at request of participant. (1) A trial judge may for cause prohibit the audio recording and the photographing of a participant with a film, videotape or still camera on the judge’s own motion or on the request of a participant in a court proceeding. In cases involving the victims of crimes, including sex crimes, police informants, undercover agents, relocated witnesses and juveniles, and in evidentiary suppression hearings, divorce proceedings and cases involving trade secrets, a presumption of validity attends the requests; the trial judge shall exercise a broad discretion in deciding whether there is cause for prohibition. This list of requests which enjoy the presumption is not exclusive; the judge may in his or her discretion find cause in comparable situations. (2) Individual jurors shall not be photographed, except in instances in which a juror or jurors consent. In courtrooms where photography is impossible without including the jury Reynolds Courts & Media Law Journal

211


Say “Cheese!” as part of the unavoidable background, the photography is permitted, but close‑ups which clearly identify individual jurors are prohibited. Trial judges shall enforce this subsection for the purpose of providing maximum protection for jury anonymity. SCR 61.12 Inapplicability to individuals; use of material for advertising prohibited. The privileges granted by this chapter to photograph, televise and record court proceedings may be exercised only by persons or organizations which are part of the news media. Film, videotape, photography and audio reproductions shall not be used for unrelated advertising purposes.

212

Volume 1, Issue 2


For Further Reading Worlds Collide: The Digital Native Enters the Jury Box Amer. Coll. of Trial Lawyers, Jury Instructions Cautioning against Use of the Internet and Social Networking (Sept. 2010), available at http://www.actl.com/AM/Template.cfm?Section=Home&template=/CM/ContentDisplay.cfm&ContentID=5213. Conf. of Ct. Public Info. Officers (CCIPO), New Media and the Courts: The Current Status and a Look at the Future (presented at CCPIO 19th Annual Meeting, 2010), available at http://www.ccpio.org/documents/newmediaproject/New-Media-and-the-Courts-Report.pdf. Tricia Deleon & Janelle Forteza, Is Your Jury Panel Googling During the Trial?, 52 The Advocate (Tex. State Bar Lit. Rep.) 36 (2010). 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/us-internet-jurors-idUSTRE6B74Z820101208. Sylvia Hsieh, ‘Digital Natives’ Change Dynamic of Jury Trials, Mass. Law. Wkly., Nov. 17, 2010. John Schwartz, As Jurors Turn to Web, Mistrials Are Popping Up, N.Y. Times, March 17, 2009, http://www.nytimes.com/2009/03/18/us/18juries.html.

That’s What “Friend” Is For?: Judges, Social Networks and Standards for Recusal Dmitry Bam, Understanding Caperton: Judicial Disqualification Under the Due Process Clause, 42 McGeorge L. Rev. 65, 75 (2010). Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252, 173 L.Ed.2d 1208 (U.S. 2009). John Schwartz, For Judges on Facebook, Friendship Has Limits, N.Y. Times, Dec. 11, 2009, at A25. Judge Gena Slaughter & John G. Browning, The Attorney and Social Media: Social Networking Dos and Don’ts for Lawyers and Judges, 73 Tex. B. J. 192 (2010).

Reynolds Courts & Media Law Journal

213


For Further Reading (continued) Untangling The Web: How Courts Should Respond To Juries Using The Internet For Research` George L. Blum, Prejudicial Effect of Juror Misconduct Arising from Internet Usage, 48 A.L.R. 6th 135 (2009). Ellen Brickman, et al., How Juror Internet Use Has Changed the American Jury Trial, 1 J. Ct. Innovation 287 (2008), http://www.courtinnovation.org/uploads/documents/Brickman.pdf Michael Hoenig, Juror misconduct on the Internet, N.Y. L.J., Oct. 8, 2009. Douglas L. Keene & Rita R. Handrich, Online and Wired for Justice: Why Jurors Turn to the Internet, Jury Expert 14 (Nov. 2009), http://www.astcweb. org/public/ publication/article.cfm/1/21/6/Why-Jurors-Turn-to-the-Internet. Nancy S. Marder, Juries and Technology: Equipping Jurors for the Twenty-First Century, 66 Brook. L. Rev. 1257, 1273 (2001). Anita Ramasastry, Why Courts Need to Ban Jurors’ Electronic Communications Devices, Findlaw, Aug. 11, 2009, http://writ.news.findlaw.com/ramasastry/20090811.html.

Say “Cheese!”: Cameras and Bloggers in Wisconsin’s Courtrooms Adriana C. Cervantes, Note, Will Twitter Be Following You in the Courtroom?: Why Reporters Should Be Allowed To Broadcast During Courtroom Proceedings, 33 Hastings Comm. & Ent L. J. 133 (2010). Kermit Netteburg, Does research support the Estes ban on cameras in the courtroom?, 63 Judicature 466, 469 (1980). Ahnalese Rushmann, Courtroom Coverage in 140 Characters, 33(2) News Media & the Law 28 (2009), http://www.rcfp.org/news/mag/33-2/courtroom_coverage_in__characters_28.html.

214

Volume 1, Issue 2


Authors Genelle I. Belmas, Ph.D (“That’s What “Friend” Is For?: Judges, Social Networks and Standards for Recusal”) is an associate professor of communications at California State University, Fullerton, and head of the journalism concentration. She received her Ph.D. in 2002 from the University of Minnesota. Her research interests include indecency law, flag display and desecration, and judicial speech issues. Her work has appeared in the Federal Communications Law Journal, Communication Law and Policy, the Drake Law Review, and the South Carolina Law Review. She is also the author of an undergraduate media law textbook, Major Principles of Media Law (Cengage).

Stacy Blasiola (“Say “Cheese!”: Cameras And Bloggers In Wisconsin’s Courtrooms”) received a bachelor’s degree from Montana State University in Philosophy and is currently completing a master’s degree in Media Studies at University of Wisconsin-Milwaukee. She will attend the University of Illinois at Chicago for doctoral studies in Communication.

Gareth S. Lacy (“Untangling The Web: How Courts Should Respond To Juries Using The Internet For Research”) graduated from the University of California, Los Angeles in 2003 with a Bachelor of Arts in Sociology. He then joined the Peace Corps to teach English and HIV/AIDS prevention in Sub-Saharan Africa. After returning to the United States, Lacy worked as press secretary for the California Attorney General, managing the communications department serving 1,500 attorneys and criminal investigators. Gareth attended law school at the University of Washington School of Law where he was the Editor-inChief of the Washington Journal of Law, Technology & Arts. Today, Lacy works in the Office of California Governor Edmund G. (“Jerry”) Brown, Jr. Dennis M. Sweeney (“Worlds Collide: The Digital Native Enters the Jury Box”), served for 17 years as a trial judge on Maryland’s Circuit Court, handling a variety of civil and criminal matters. Since retiring from the bench in 2007, Judge Sweeney has continued to preside as a recalled judge (a retired judge approved for recall for temporary service) over cases in in Baltimore City and Howard, Montgomery, Anne Arundel, and Carroll Counties, Maryland; this included a series of high-profile political corruption cases in Baltimore City involving various city officials and real estate developers. He also currently serves as a private mediator or arbitrator with JAMS, as a mediator for the Maryland Court of Special Appeals Mediation Pilot Program, and as an Alternate Land Commissioner for the U.S. District Court for the District of Maryland. He also writes a monthly column on jury trials for the Maryland Daily Record legal newspaper, ansd continues as chair of the Jury Use and Management Committee of the Maryland Judiciary. Prior to joining the bench, Judge Sweeney served as an assistant federal public defender and in various positions with the Baltimore Legal Aid Bureau, Inc., and the Maryland Attorney General’s office. He has received numerous awards, including being named as among the 2010 “Influential Marylanders” by the Daily Record.

Reynolds Courts & Media Law Journal

215


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.

216

Volume 1, Issue 2


Rick Rodriguez, 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 Wells 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

217


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 2  

Reynolds Courts & Media Law Journal vol. 1 issue 2

Read more
Read more
Similar to
Popular now
Just for you