The number of users on social media sites like Facebook, Twitter, LinkedIn and Google+ is growing, and as it does, its prominence in law suits increases exponentially. In February 2012, this blog covered the precedents being set in the state of Pennsylvania about whether insurance companies would be allowed access to plaintiffs’ Facebook accounts to hunt for information without limitations. As judges begin to understand what Facebook is and how it works (and maybe even use it themselves) the trend is swinging in favor of the privacy of the citizen and away from the prying eyes of large companies.
But there are other issues at work when it comes to considering social media’s encroachment into legal proceedings. Recently, Mary Pat Gallagher wrote an article in the New Jersey Law Journal in which she discussed the dangers surrounding jurors using social media sites to post information about the trials playing out in front of them. After all, Facebook sees nearly 2.5 billion comments and posts per day, while Twitter users post about 175 million messages daily. She takes information from a survey undertaken by the Federal Judicial Center’s newsletter that states 94 percent of the 508 judges who responded have actively taken measures against social media use in trials over which they preside.
Startlingly, jurors are not merely searching for information on participants in a trial. As Gallagher notes, “Three judges described a juror friending or trying to friend one or more participants in the case. There were also three reports of juror communications or attempted communications with trial participants, three instances of juror disclosure of aspects of the deliberation process and one of disclosure of information about other jurors…Two judges had a juror who contacted a party with case-specific information: one juror contacted the plaintiff’s former employee to disclose a likely verdict and the other, an alternate, used Facebook to contact a lawyer during deliberations with feedback and the likely outcome.”
We watched a juror’s use of social media play out with Philadelphia lawyers in 2009 during the corruption trial of former Democratic State Sen. Vince Fumo. A federal jury was in recess for the weekend after nearing the end of its deliberations when The Philadelphia Inquirer City Editor Julie Busby discovered that one of the jurors was posting about the deliberations on his Facebook and Twitter pages claiming that there would be a “big announcement.” The defense lawyers moved for an immediate halt in jury deliberations and the removal of one juror which was a direct violation of the judge’s instructions not to disclose the status of deliberations. While the juror was removed and an alternate put in place, Fumo was ultimately convicted, however, the Philadelphia trial lawyers for the defense gained fodder for the appeal.
Solving the problem has been a difficult one. About one-fifth of judges require that jurors turn over their electronic devices at the beginning of each trial day, thus removing the temptation for jurors to use them at all. About 11 judges ask jurors to swear oaths that they will either abstain from all social media use during the trial or not do any outside research on any of the involved parties. The vast majority, however, simply use clear, straightforward language to explain why carrying information over from a trial onto cyberspace is dangerous and potentially harmful to everyone involved. These judges say that when they give this speech, jurors listen and obey. It is crucial for judges to be mindful of such activities since mobile access to the Internet and social media sharing sites has become commonplace.
Another encouraging sign is that when jurors have disregarded a judge’s explicit instructions, other jurors have stepped up to report them. The offending jury member is typically then removed from the courtroom and replaced with an alternate, although other judges have declared a mistrial, held the juror in contempt or even fined the juror.