I blogged several weeks ago about recent cases in which jurors have caused a stir by using social media such as Twitter to communicate about their jury service. Taking the issue on proactively, the Michigan Supreme Court has adopted a new rule requiring judges to admonish jurors to not use electronic communication devices during trial, and not to use them during breaks to comment or conduct research on the case.
The new rule, which takes effect September 1, 2009, adds specific admonitions to a general statement that judges must generally instruct the jurors to base their verdict only on the evidence presented in court.
(2) The court shall instruct the jurors that until their jury service is concluded, they shall not
(a) discuss the case with others, including other jurors, except as otherwise authorized by the court;(b) read or listen to any news reports about the case;(c) use a computer, cellular phone, or other electronic device with communication capabilities while in attendance at trial or during deliberation. These devices may be used during breaks or recesses but may not be used to obtain or disclose information prohibited in subsection (d) below;(d) use a computer, cellular phone, or other electronic device with communication capabilities, or any other method, to obtain or disclose information about the case when they are not in court. As used in this subsection, information about the case includes, but is not limited to, the following:(i) information about a party, witness, attorney, or court officer;(ii) news accounts of the case;(iii) information collected through juror research on any topics raised or testimony offered by any witness;(iv) information collected through juror research on any other topic the juror might think would be helpful in deciding the case.
As I've noted before, courts have long instructed jurors to not discuss the case with others, or access news reports or other external information. Except for the few cases in which jurors are sequestered, courts generally rely on the "honor system," trusting jurors to follow these instructions.
It makes sense, when there seem to be few boundaries on tweeting, e-mailing and blogging, to tell jurors that they must limit these activities. Judges should also explain to jurors why such activities could imperil the trial process, by introducing evidence that does not meet the legal standards for admission.
The electronic access that jurors now enjoy is just a heightened version of the old problem of jurors considering outside information in making verdicts: one that generations of lawyers and judges have tried to address, but has never been, and will likely never be, solved.
Comments
California court proposes similar rule
An update to this post: The California Superior Court in San Fransisco has proposed that all juror questionnaires include a cover sheet containing the following statement:
The new rule (Proposed Rule 7.2, available here) would be effective Jan. 1, 2010. (Note that while the rule states that the new cover sheet is available on the court's web site, it does not appear there. The quote is from coverage of the proposal by Eric Sinrod's "Technologist" blog.)
Eric P. Robinson
Wisconsin, too
In December 2009, Wisconsin's Criminal Jury Instructions Committee revised its model jury instructions (see Wis. J. Inst., Crim. No. 50; pdf of revised rule) to admonish jurors not to conduct their own research on cases, or to post or e-mail updates about trial proceedings. While the changes are discretionary, they are likely to be adopted by most trial judges in the state.
Florida's New Instructions
Florida has also proposed adding jury instructions specifically addressing juror use of social media during trials. The new instructions, proposed by Supreme Court Committee on Standard Jury Instructions in Civil Cases and the Supreme Court Committee on Standard Jury Instructions in Criminal Cases, include statements to be given to a general juror pool, and before the start of voir dire in civil and criminal trials.
The first of the proposed instructions, to be given to the general juror pool, states as follows:
In Re: Standard Jury Instructions (Civil) and (Criminal), Juror's Use of Electronic Devices, Case No. SC10-51 (Fla. proposed Jan. 14, 2010), Appendix A (pdf)
The proposed additions to the civil and criminal voir dire instructions are more specific:
Proposed Civil Instruction 1.0, Preliminary Instruction, In Re: Standard Jury Instructions (Civil) and (Criminal), Juror's Use of Electronic Devices, Case No. SC10-51 (Fla. proposed Jan. 14, 2010), Appendix B (pdf), at B3.
The proposed rules are to be published in the February 15, 2010, edition of [Florida] Bar News (publication notice), with comments due March 17 and the committee's response due April 7.
Eric P. Robinson
Ohio Joins the Fray
After a Feb. 11 workshop on new media technologies and the courts (press release; coverage), Ohio Supreme Court Justice Judith Ann Lanzinger said that the court was probably going to have to re-examine the Ohio rules on broadcasting of court proceedings. Lanzinger added that any new rules would have to balance parties' interest in a fair trial and the First Amendment, according to the Associated Press.
Currently, Rule 12 of the Rules of Superintendence for the Courts of Ohio (pdf) generally requires judges to permit still and video camera, and radio, coverage of proceedings that are open to the public, although victims and witnesses can object to coverage of their testimony.
Earlier in February, the Ohio Common Pleas Court in Erie County banned most cell phones from its courthouse in Sandusy. But lawyers, judges, court personnel, law enforcement officers, and journalists are exempt: a problematic double-standard.
Eric P. Robinson