Jury service is an important element of civic participation but necessarily involves hours of waiting and quiet observation of proceedings, evoking for some a hunger for expression or quick entertainment. Smartphones, with easy social networking capabilities, give jurors an avenue to let off steam but also to disobey the court’s instructions and discuss elements of the case before the trial is complete. A juror who comments about a case on the internet may invite responses that include extraneous information about the case or efforts by social media "friends" to exercise persuasion and influence, potentially marring the integrity of the proceedings or causing a mistrial.

To be sure, it is difficult for judges simultaneously to conduct a trial and police jurors, who, for the most part, consider social network activities to be their own business. Judges repeatedly remind jurors not to use social media to communicate with outsiders during the trial or deliberations, and at certain times judges have confiscated electronic devices in the courtroom.

In response to reports of social media activity by sitting jurors, states judiciaries have amended jury instructions to educate juries about the unintended effects of such behavior. For example, New Jersey state courts recently amended a section of the Model Civil Jury Instruction to include specific prohibitions regarding social media: "You also should not attempt to communicate with others about the case, either personally or through computers, cell phones, text messaging, instant messaging, blogs, Twitter, Facebook, MySpace, personal electronic and media devices or other forms of wireless communication." Similarly, the Judicial Conference Committee also updated the model jury instructions for federal courts to deter jurors from using social media to communicate about the cases on which they serve.

Despite such preventative steps, the problem of jurors violating trial instructions through social media usage persists. Some of the dangers of Facebooking jurors include directly communicating with or "friending" witnesses or parties, divulging confidential information about the trial or the deliberative process, disclosing personal information about fellow jurors, or revealing an unacceptable bias for or against one party. For example, in one case, a state supreme court overturned a murder conviction after it was discovered that a tweeting juror, who had previously been reprimanded by the court for using social media, continued to tweet during the trial. See Dimas-Martinez v. State, 2011 Ark. 515 (Ark. 2011).

Reports of similar courtroom misconduct are plentiful, such as one juror removed after attempting to friend the defendant on Facebook or a reporter’s tweeted photos of a sitting juror that contributed to a mistrial. Jurors have also been removed for posting inflammatory language during trial (e.g., a juror quipped that the defendant was "presumed guilty"; another juror expressed a desire to be in contact with the defendant after the trial; one juror admitted to being so exasperated that she "want[ed] to punch" a fellow juror for cracking her knuckles and was so "intrigued" that she wanted to contact the defendant after the trial).

However, some juror postings, while ill-advised and contrary to the judge’s instructions, do not rise to the level of misconduct. For example, in People v. Rios, 26 Misc.3d 1225(A) (N.Y. Sup. Ct. 2010), a juror sent a Facebook friend request to a witness that went unanswered and after the trial sent another request and exchanged messages with the witness. After a post-trial hearing, the court denied the defendant’s motion to set aside the verdict based upon juror misconduct, stating that while the juror’s conduct was a clear violation of the court’s instructions, there was no evidence that the unanswered friend request necessarily "tainted" the outcome of the case. See also United States v. Ganias, 2011 WL 4738684, at *3 (D. Conn. Oct. 5, 2011) (juror postings such as "Guinness for lunch break. Jury duty ok today"; "Your honor, i [sic] object! This is way too boring. . . . Somebody get me outta here"; and on the day of the verdict, "Guilty :)" did not constitute impermissible bias or misconduct).

Other claims of wrongful juror communications fall in the gray area between actionable misconduct and harmless, insubordinate behavior.

In Sluss v. Commonwealth, 2012 WL 4243650 (Ky. Sept. 25, 2012), the trial judge ordered a hearing on whether two jurors’ Facebook friendships with the victim’s mother constituted impermissible bias, despite statements during voir dire that the jurors did not know the victim or her family. Understanding the realities of social media, the Kentucky Supreme Court stressed that the mere status of Facebook friendship does not reveal "where in the spectrum of acquaintanceship the relationship actually falls." The court noted that a juror who is a Facebook friend with a family member of a victim, standing alone, is "arguably not enough evidence to presume juror bias sufficient to require a new trial," and the defendant must do more than simply speculate that the relationship might have somehow affected the jury verdict. The court declined to order a new trial, yet ordered the lower court to conduct a new hearing, based upon the fact that one of the jurors may have lied about having a Facebook account during voir dire and both jurors may have omitted information about knowledge of the parties in the case. See also State v. Dellinger, 696 S.E.2d 38 (W. Va. 2010) (juror failed to inform the court that the defendant was a MySpace friend, among other omissions, and such bias warranted a new trial).

In another case,Commonwealth v. Werner, 967 N.E.2d 159 (Mass. App. 2012), the defense attorney discovered a juror had made Facebook postings during the trial and had friended three fellow jurors. Counsel argued that the following postings exposed the jurors to extraneous influences during deliberations: "Superior Court in Brockton picks me . . . . for the trail [sic]. The[y] tell us the case could go at least 1 week. OUCH OUCH OUCH." Juror B’s wife replied, "Nothing like sticking it to the jury confidentiality clause on Facebook . . . . Anyway, just send her to [the penitentiary] quickly so you can be home for dinner on time." The appellate court found that the trial judge did not err in concluding that the postings contained no case-specific information and showed no evidence of extraneous influence — instead involving the type of "attitudinal expositions" on jury service, protracted trials, and guilt or innocence that fall far short of prejudice.

Juror Privacy

As part of its inherent power to control proceedings and assure a fair trial, a trial court has certain authority to investigate juror misconduct, usually through evidentiary hearings. An interesting issue emerges as to what extent a court can compel a juror suspected of misconduct to disclose printouts of social media communications made during a trial, something beyond mere testimony before the court. Jurors are generally protected against disclosure of personal information that potentially could be used by a convicted defendant for harassment purposes, yet such limitations may not apply concerning a juror’s improper communications during a trial. In one notable dispute, the trial judge was compelled to balance a juror’s general privacy interests in social media communications against the power of the court to investigate misconduct.

In Juror Number One v. Superior Court of Sacramento County, 206 Cal.App.4th 854 (2012), following a criminal trial that ended in conviction, the court learned that one of the jurors (Juror Number One) had made multiple Facebook posts during the trial. The convicted defendants sought copies of the postings. Subsequently, the judge conducted an evidentiary hearing and issued an order requiring Juror Number One to execute a consent form authorizing Facebook to release to the court for in camera review all Facebook posts made during the trial. Juror Number One filed an objection based upon the federal Stored Communications Act, which, in general, limits ISPs and similar qualifying providers from disclosing the contents of a user’s communications in "electronic storage," but notably does not contain an exception for civil discovery subpoenas. The court agreed that it might be a violation of the federal Stored Communications Act to subpoena the records from Facebook directly. See, e.g.,Crispin v. Christian Audigier, 717 F. Supp. 2d 965 (S.D. Cal. 2010) (Facebook and MySpace are "electronic communication services" subject to the Stored Communications Act; court vacated the magistrate’s order and quashed a subpoena that sought private social media messages).

However, the court noted that the compulsion here was on Juror Number One, and where a party to the communication is also a party to the litigation, it is within the power of a court to inquire into alleged juror misconduct and require his or her consent to disclosure, on threat of sanctions: "If the court can compel Juror Number One to produce the information, it can likewise compel Juror Number One to consent to the disclosure by Facebook. The [Stored Communications Act] has no bearing on this issue." Juror Number One, 206 Cal.App.4th at 865.

The court also rejected Juror Number One’s argument that disclosure would violate his privacy rights. The court stated that the Juror had not shown he had any expectation of privacy in the posts and, in any event, such privacy rights did not trump the convicted defendant’s right to a fair trial free from juror misconduct, particularly since the investigation into the juror’s admitted misconduct was still ongoing.

Voir Dire and Juror Privacy

The purpose of voir dire during jury selection is to ensure that a fair and impartial jury is empanelled. Beyond the traditional inquiry, attorneys routinely use their wireless devices to undertake a cursory online search of prospective jurors in the courtroom. Indeed, in one case, Carino v. Muenzen, 2010 WL 3448071 (N.J. Super. A.D. Aug. 30, 2010) (unpublished), an appellate court held that googling prospective jurors during voir dire was generally permissible. The court stated that the trial judge had cited no authority for a requirement that counsel must notify an adversary and the court in advance of using Internet access during jury selection or any other part of a trial.

However, commentators and bar associations continue to debate to what extent an attorney may inquire into a prospective juror’s social media presence within ethical and privacy-related bounds. The New York County Lawyer’s Association Committee on Professional Ethics released Formal Opinion No. 743 (May 18, 2011) regarding the propriety of attorneys investigating a juror’s social networking postings during trial. The committee concluded that a lawyer may search a prospective juror’s and sitting juror’s social networking profile, provided there is no contact or communication with the juror and the lawyer does not seek to friend jurors, or subscribe to their Twitter accounts, or otherwise contact them. Importantly, while a trial lawyer has no duty to scan social network sites for juror postings, if a lawyer discovers juror misconduct, he or she must promptly bring such information to the attention of the court. See, e.g., United States v. Daugerdas, 867 F. Supp. 2d 445 (S.D.N.Y. 2012) (one defendant knew or should have known of juror’s widespread dishonesty during voir dire prior to the verdict and therefore waived the right for a new trial based upon juror misconduct).

Subsequently, the New York City Bar, in Formal Opinion 2012-2, took a similar approach, stating that attorneys may use social media websites for juror research as long as no communication occurs between the lawyer and the juror. The opinion stressed that prohibited communication may depend on the mechanics and privacy settings of each particular online network, such that some services might automatically notify a user when her profile has been viewed, while others might provide notification only if another user initiates an interaction or sends a message. According to the opinion, under the applicable ethical rules, an accidental or automated notice to the juror could be considered an ethical violation. The committee noted that a communication through a social network may be deemed prohibited conduct even if it is technically generated by the service rather than the attorney, is ignored by the juror, or consists of nothing more than an automated message of which the "sender" was unaware.

Under current practices, for example, Facebook does not give users the ability to see who has viewed their profiles, while LinkedIn possesses certain functionalities that offer users the ability to see information about which LinkedIn users viewed their profile. Depending on the viewer’s privacy settings on LinkedIn, a profile view might result in a transmission of information that could violate the New York State Bar’s ethical rules. Given the mutability of social media sites’ privacy practices, attorneys should remain informed about a particular site’s settings and practices to avoid sending unintentional communications during a routine juror inquiry.

Richard Raysman is a partner at Holland & Knight and Peter Brown is the principal at Peter Brown & Associates. They are co-authors of "Computer Law: Drafting and Negotiating Forms and Agreements" (Law Journal Press). This article was originally published in Law Technology News, an affiliate of Texas Lawyer.