How Can Twittering Jurors Not be Cause for a Mistrial?

By Jeralyn, Section Law Related
Posted on Tue Mar 17, 2009 at 04:13:22 PM EST
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Jurors doing research on their iPhones and live-reporting their trials on Twitter are causing big headaches to the judicial system. After 8 weeks of trial in a federal drug trial in Florida, the Judge declared a mistrial.

Last week, a juror in a big federal drug trial in Florida admitted to the judge that he had been doing research on the case on the Internet, directly violating the judge’s instructions and centuries of legal rules. But when the judge questioned the rest of the jury, he got an even bigger shock. Eight other jurors had been doing the same thing.

Sadly, "... the defense lawyer, Peter Raben, ... was told by the jury that he was on the verge of winning the case."

Why is a twittering juror any different? [More...]

[O]n Monday, defense lawyers in the federal corruption trial of a former Pennsylvania state senator, Vincent J. Fumo, demanded that the judge declare a mistrial after a juror posted updates on the case on Twitter and Facebook. The juror even told his readers that a “big announcement” was coming Monday.

But the judge decided to let the trial continue, and the jury found Mr. Fumo guilty. His lawyers plan to use the Internet postings as grounds for appeal.

The problem:

Jurors are not supposed to seek information outside of the courtroom. They are required to reach a verdict based only on the facts that the judge has decided are admissible, and they are not supposed to see evidence that has been excluded as prejudicial. But now, using their cellphones, they can look up the name of a defendant on the Web, or examine an intersection using Google Maps, violating the legal system’s complex rules of evidence. They can also tell their friends what is happening in the jury room, though they are supposed to keep their opinions and deliberations secret.

The solution seems easy enough -- require jurors to park their cell phones with the Marshals when entering the courthouse.

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How Can Twittering Jurors Not be Cause for a Mistrial? | 30 comments (30 topical)

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Absolutely right about parking the cell phones (5.00 / 3) (#2)
by scribe on Tue Mar 17, 2009 at 04:21:27 PM EST

but the additional problem is that the jurors just will not keep themselves away from doing research when they get home.

The worst of it is that, in some of the cases in the article, the jurors were explicitly looking for and researching information the Court had expressly excluded from evidence in the trial. In other words, the jurors were enlarging the universe of evidence in defiance of the judge's orders.

I suspect that the judiciary is going to have to do a couple things:
(A) take the phones during the trial;
(B) start off by giving a cautionary instruction that emphasizes
(1) it is disrespectful of the Court, the parties, the lawyers, and the fellow jurors to either do research or communicate outside the jury room - and that includes looking at wiki or google or anything else - because it will require mistrials and the consequent waste of their, their fellow jurors', the court's and the parties' and lawyers' time;
(2) warning them that they are required to advise the Court if someone among them is breaking the no research/no communication rule;
(3) make a very showy display of tossing violating jurors into jail for contempt, so as to make a very public impression that the Rule is serious;
(4) reminding jurors that jail awaits for those who break the rules.

I don't like it any more than anyone else does - throwing people in jail or threatening them with it for breaking the rules - but people are so totally addicted to these phones and heedless of breaking the rules by using them that some strong slap is needed to wake them up.

When I clerked for (5.00 / 1) (#3)
by eric on Tue Mar 17, 2009 at 04:39:54 PM EST

the district court here in MN, we confiscated cell phones from deliberating jurors. And this was back in 1998. The internet wasn't a concern - it was to keep them from calling people.

I don't think (none / 0) (#5)
by Bemused on Tue Mar 17, 2009 at 04:44:54 PM EST

I've ever been before a court anywhere that allowed jurors to have cellphones or other communication devices in the jury room or obviously in the courtroom. But, that really doesn't prevent much of anything if a juror is determined to break the rules.

In fact, being old enough to rmemeber
the days when no one had cellphones or computers, I can remember people who violated these same rules by reading paper, watching TV or talking to neighbor or family when they went home. If anything the tecnological communications are probably easier to catch than the old-fashioned kind.


We let the jurors (none / 0) (#7)
by eric on Tue Mar 17, 2009 at 04:53:15 PM EST

have the cell phones up until deliberation time. Obviously, they were required to have them turned off.

Of all the times I have been in court, the ONE time that I had my cell phone ring was when I was on jury duty. Heh.


The worst sinking feeling (none / 0) (#13)
by MKS on Tue Mar 17, 2009 at 05:53:31 PM EST

I had was when I forgot to turn off my phone in Federal Court...and when I was making my argument, it of course rang....


: Even worse, perhaps (none / 0) (#20)
by rea on Tue Mar 17, 2009 at 07:27:07 PM EST

I missed seeing my client in the courtroom, and couldn't find him, so I stepped out in the hall to call his cell. He was sitting in the front row, directly in front of the judge, when it rang . . .

Hard to imagine why (none / 0) (#15)
by Cream City on Tue Mar 17, 2009 at 06:57:20 PM EST

cell phones and other devices aren't routinely confiscated in courts. Warnings are standard in classrooms, on syllabi, etc., and have been for years, even before more mischief now such as texting for answers during a test.

And ever since seeing the candid camera stuff on Youtube, I've added warnings about privacy, again for other students as well as teachers . . . that cell phones used in class will be confiscated and turned over to those ever-terrifying "authorities" to see if a crime has occurred. Haven't seen a phone in class ever since, for years now. The possibility of having to give up a cell phone is effective with the young.

Will it take judges seeing themselves on Youtube before they realize that the issue of cameras in the courtroom has an entirely new aspect now?


In federal court (none / 0) (#17)
by Steve M on Tue Mar 17, 2009 at 07:12:43 PM EST

I don't believe you're allowed to have cell phones or electronic devices at all. State courts are generally more permissive, although they expect you to have the phone turned off in the courtroom, of course.

I understand that it's a common problem now that parents want their kids to have a cell phone at school in case of emergency or whatnot, but the kids of course insist on using them for non-emergency purposes which is frustrating to the school administrators. Mind you, somehow all of us managed to get through school unscathed even though we had no cell phones in those days. (When I was in high school, having a pager meant you were a drug dealer!)


: School rule (none / 0) (#21)
by CST on Tue Mar 17, 2009 at 07:41:07 PM EST

We used to have a no cell-phone rule at my highschool. The rule changed on Sept 12, 2001. My guess is, that's when it became widespread.

the former (none / 0) (#1)
by Bemused on Tue Mar 17, 2009 at 04:17:17 PM EST

instance seems to involve jurors getting information which is different than in the latter example where the juror is giving information.

I'm not condoning either but there is a difference in terms of the mistrial analysis.

the idea of parking devices is fine, but unless jurors are sequestered they can still send or receive information as soo as they leave the courthouse.

Wouldn't the "reporter" juror... (none / 0) (#4)
by EL seattle on Tue Mar 17, 2009 at 04:44:17 PM EST

...be feeling the need to make his story "interesting" in some way for his readers? No matter what approach he (or she) would take to the story, I'd think the process would be a significant distraction from the task at hand.


: The story I link to (none / 0) (#10)
by scribe on Tue Mar 17, 2009 at 05:09:17 PM EST

is about someone needing to make his story interesting.
In this instance, the someone was a player for the Milwaukee Bucks and the story he was amping up was that he "needed to step up" and that the coach's halftime spiel was to that effect, too.
He sent it from the lockerroom at halftime.
This twitter business is getting seriously out of hand.

Bemused: except that (none / 0) (#12)
by Jeralyn on Tue Mar 17, 2009 at 05:51:23 PM EST

people respond to tweets so by logging onto twitter after he posted he'd see information others gave him in response.


: It would certainly be different (none / 0) (#29)
by Bemused on Wed Mar 18, 2009 at 07:02:02 AM EST

if the juror received responses disclosing information the juror should not have which could even possibly influence him. I'd assume the court examined the juror in camera about his conduct and that this question arose, but that is a guess.
Another issue-- and one that as a defense attorney can be important-- is that a court can deny a mistrial request during the trial, allow the case to proceed to verdict and then revisit the issue on motion for new trial. Sometimes, the defendant might actually prefer that approach (even if he moves for a mistrial to preserve the point) because if the jury acquits that is a good thing and if the jury convicts there is still apossibility the court will grant a new trial.

I don't know (none / 0) (#6)
by Steve M on Tue Mar 17, 2009 at 04:45:21 PM EST

that disseminating information is necessarily prejudicial to the defendant, but conducting independent research certainly is. Even in the pre-Internet age, verdicts were thrown out on this basis all the time. You simply can't bring outside information into the jury room.

The one problem (none / 0) (#8)
by eric on Tue Mar 17, 2009 at 04:55:17 PM EST

that would come with Twitter is that one tends to get Twitters back in response. That is why the court usually tells jurors not to talk to anyone about the case - chances are that somebody is going to talk back to you and give you their opinion.


12 Angry Men (none / 0) (#24)
by TexDem on Tue Mar 17, 2009 at 09:17:56 PM EST

In that classic movie Henry Fonda's character brought in an identical knife he bought which disproved the prosecution's claim that the defendant's knife was unique.

When I went for Jury Duty in Fort Worth several years ago, Tarrant County used that movie as an example of how take your responsibility seriously.


: Sometimes justice demands.... (none / 0) (#30)
by kdog on Wed Mar 18, 2009 at 08:08:22 AM EST

you break the rules...and not just in the movies, jury nullification comes to mind.

Fumo was my state Senator (none / 0) (#9)
by andgarden on Tue Mar 17, 2009 at 05:06:20 PM EST

The jurors apparently thought that the evidence against him was overwhelming.

: The Twitter issue in the Fumo case (5.00 / 1) (#25)
by Peter G on Tue Mar 17, 2009 at 10:23:30 PM EST

is explained here and here. There's lot's more info available on the web, including our motion for mistrial (but not our brief), posted on "How Appealing". Since I'm part of the defense team, and will probably be handling the appeal, I won't say anything more about it. It is true, however, that in meeting with the press later, some of the jurors did use the term "overwhelming."

: No. The jurors thought the evidence (none / 0) (#11)
by scribe on Tue Mar 17, 2009 at 05:10:45 PM EST

proved the charges beyond a reasonable doubt.
The prosecutors brought the mountain of charges - they were the ones pitching the whole "overwhelming" line. Of course, since they were the ones putting forth all those charges, they decided to be overwhelming....

Different (none / 0) (#14)
by DaveOinSF on Tue Mar 17, 2009 at 06:19:36 PM EST

Obtaining information is not the same as disseminating information. I'm not saying that Twittering is NOT grounds for a mistrial, but the circumstances of the second example are very different from the first example and have nothing to do with the "problem" in the third quoted paragraph.

Query: does one "twitter" via (none / 0) (#16)
by oculus on Tue Mar 17, 2009 at 07:04:20 PM EST

cell phone, computer, both? What device is needed?

I can tweet (5.00 / 1) (#28)
by Jen M on Wed Mar 18, 2009 at 06:56:11 AM EST

from my Kindle2


It is a web site (none / 0) (#18)
by Steve M on Tue Mar 17, 2009 at 07:14:12 PM EST

so either a computer, or a cell phone with Internet access will do.

I'm not a twitterer myself, but my wife is and she says it's similar to changing my Facebook status, which basically means I go to facebook.com and type a message which then shows all my friends: "Steve is typing a comment on TalkLeft" or whatever.


Meanwhile, George Clooney, (none / 0) (#22)
by oculus on Tue Mar 17, 2009 at 07:46:01 PM EST

per Huff Post, is "Vlog"ing. But that concept apparently started awhile ago. Why isn't TalkLeft vlogging too?


: Good question (none / 0) (#23)
by Steve M on Tue Mar 17, 2009 at 08:25:55 PM EST

Jeralyn always looks great on TV! She'd be a natural for the vlog format.
Personally, though, since I usually read blogs at work, video is mostly lost on me.

Curious which verdict would have been better (none / 0) (#19)
by Saul on Tue Mar 17, 2009 at 07:17:05 PM EST

I do not know anything about Fumo. Maybe he deserves to be found guilty and maybe not. But what if the information that
the juror found had been exculpatory evidence that the prosecution deliberately left out and had the jury known of this evidence they would have ruled not guilty instead of guilty.

I as a juror would rather know that now even if its against the rules than maybe several years later after a person has been incarcerated for several years or worse which I as a juror am responsible for.

IMO of all the parties involved in a trial, Prosecution, Defense, Judge the jury is the most important of all and should have the same clout as that given to the judge,(who rules like G-D), after all I am the final judge. However many times juries are intimidated with a shaking finger by the judge that they must only use the evidence heard in a trial for fear of jury nullification.

The way I see it I respected the officers of the court in hearing the evidence. As a juror I did not interrupt the prosecution, the defense or the judge. Now its up to me as a member of the jury and as an equal participant of the court, to decide on the evidence or lack of it against the defendant. So if we the jury in a criminal trial can not agree on 12 votes for or against then please respect that decision and please do not try to influence or change our decision. However, many times that is not the case, the judge will come in and say

Not good enough you need to stay here until you come up with either guilty or not guilty.

We are forced to make a decision we do not agree with. A decision that many jurors know is wrong but changes his or her vote for the sake of convenience for the rest of the jurors and the judge. IMO that is borderline jury tampering by the judge since the judge is playing a direct role in the jury's decision through his commanding orders to the jury to find the defendant guilty or not guilty.

When we saw Bush (or others) doing his (their) signing statements and when he (they) said either directly or with a wink and a nod during the signing of the bill, that none of his agencies involved with the enforcement of this new law should not pay any attention to this bill he just signed then IMO that is prosecutorial nullification done on a major scale. Why then should a juror not be allowed the same privileges given to the president in making the best decision as a juror.

Just my 2 cents.

These days (none / 0) (#26)
by Radiowalla on Tue Mar 17, 2009 at 11:20:41 PM EST

the expression "all atwitter" means something entirely new.

true enough. (none / 0) (#27)
by cpinva on Wed Mar 18, 2009 at 12:28:01 AM EST

but, as scribe noted, this won't prevent those jurors from doing it at home. you still have to rely on their personal integrity.

the only way to absolutely insure they follow the judge's instructions is to sequester them, in a place totally bereft of communications with the outside world, and guards to make certain they don't go sneaking off into the night.

not sure just how practical that is.