Pay attention. That’s what jurors promise to do. But what happens to justice when social media provides more compelling evidence?
@JurorNo1: Here we go again. #ihatejuryduty
@JurorNo2: He’s obviously guilty. Wish we could go home.
@JurorNo1: Guilty? With that @justinbieber hair? His barber even started a “Free Willy” Facebook page.
@JurorNo2: LOL #weallhatejuryduty
Imagine this Twitter exchange happening in the jury box during a trial.
Now imagine you’re the defendant and your future depends on the jurors paying attention to the evidence you believe will exonerate you.
But while you’re sitting at the defense table, palms slick with sweat, knees trembling, nervously tapping your foot like Ringo Starr on the drums because you know if you’re found guilty you’re going to prison, maybe for a very long time, the jurors are busy Tweeting and texting and updating their Facebook pages with details about you, your alleged crime, your bad haircut and the awful way your plaid pants clash with your striped shirt.
It could happen.
It has happened.
“Oh yes, it’s happened,” says University of Dayton law professor Thaddeus Hoffmeister. “It’s already been done in the box, in the jury box itself, unfortunately.”
The telltale sign?
“The juror’s head was down all the time,” Hoffmeister says.
If you’re surprised, you shouldn’t be.
Social media is as ubiquitous as naked photos of Anthony Weiner. No matter where you go or where you are — the movies, church, even the urinal — you can find someone texting, Tweeting, Instagraming, Tumblring, Digging, emailing, Facebooking, Amazoning, eBaying or just searching for information on Wikipedia about Miley Cyrus twerking. It has changed the way we work, the way we interact, the way we live.
The difference of course is that, mostly, someone’s life isn’t on the line.
When jurors are sworn in for duty they tacitly agree to listen to all the evidence presented to them when they swear to judge as fairly and impartially as possible. The concern is that all the distractions and, worse, the almost instantaneous ability to gather “facts” not in evidence, compromise a defendant’s ability to get a just and unbiased trial.
“I worry about that, yes definitely,” says Montgomery County [Ohio] Common Pleas Judge Timothy O’Connell ’77.
O’Connell, a 1980 graduate of the UD School of Law, leans back in a leather chair in his cluttered fourth-floor office in the Montgomery County Courthouse, his fingers tented as if in prayer, his brow furrowed as he contemplates the question of jurors going outside the boundaries of the courtroom to gather information they shouldn’t have.
“There have been cases reported where convictions have been reversed, new trials ordered and even dismissals of charges in some instances because of the use of information that wasn’t presented in the courtroom,” he says.
Attorney Jon Paul Rion ’96 remembers a civil case in Dayton that was settled in favor of his client just before closing arguments.
“We spoke to the jury afterwards, before they were discharged, and they’d read all about the case, knew what the judgments were, knew all the information,” Rion says. “It was unbelievable the amount of information they had that was not presented in the courtroom. And they openly admitted about getting the information about the case while the case was ongoing. We were shocked, one, not only by the openness but, two, the amount of information they felt they needed to do their job correctly.
“Clearly when you have information like that coming in through the back door, it’s of great concern. It’s impossible to monitor.”
Therein lies the rub. We live in an instantaneous world. We can connect to each other as well as to huge stores of information in the blink of an eye. Or more precisely, the flick of a finger. We now have the ability to check a defendant’s background, his or her prior record, and read personal comments about the person that may or may not be true. We can go to Google Earth to view crime scenes, check out lawyers, judges, witnesses and fellow jurors, “Friend” the victim, the defendant, their families and friends, and leak details to the public that are supposed to remain confidential.
“I particularly worry about jurors who can fairly easily go online … and go into the clerk’s records and find out about prior charges and prior convictions of the defendant,” O’Connell says.
Hoffmeister, who writes a blog about juries (juries.typepad.com), points to a sexual assault case in Louisville, Ky., where the victim, unhappy with the sentence of the two juveniles convicted of attacking her, went online and named them, even though the court kept their identities sealed.
“She said something to the extent of, if this is all that reporting a rape got me, then I’m mad I reported it,” Hoffmeister says of her reasoning. “There’s a lot of things going on with that particular case, such as can we keep legal proceedings quiet in the age of social media? It’s very hard. There are so many different ways you can get information out to people, courts are going to struggle with that.”
Twitter, Facebook and the like have turned ordinary citizens into what Hoffmeister calls “social media vigilantes.”
In 2009, for instance, an American couple visiting the Bahamas decided they wanted an exotic meal … of endangered iguanas. Like all good Facebookers, they felt the need to document their feast and posted pictures of themselves “cleaning the iguanas, and barbecuing the iguanas, and grilling the iguanas,” Hoffmeister says.
“Somebody saw the pictures on their Facebook page and called the authorities down in the Bahamas and these people were arrested. All because of people watching and seeing what was on somebody’s Facebook page. There’s so many different ways that social media is now impacting criminal law.”
Two years ago, Hoffmeister, who joined the UD law faculty in 2007, didn’t consider Twitter as something viable.
“I thought, 140 characters, how does this work?” he says.
Now he teaches a class on social media and the law and, in early 2014, will have a book, Social Media in the Courtroom: A New Era for Criminal Justice, published by Praeger.
Sitting in his cramped office in the lowest level of Joseph E. Keller Hall, Hoffmeister, dressed in khaki pants, a blue checked shirt and sandals, is practically giddy while talking about the impact of social media on the judicial system. Words spew from his mouth faster than the Twitterverse reaction to Ben Affleck as the Batman.
After it occured to him that almost all his jury blog posts were about the effects of social media on jurors, Hoffmeister began to look at the entire judicial system.
“How are the criminals using (social media)?” he asks. “How are the attorneys using it? How is law enforcement using it? How do judges use it? How do we get it admitted into evidence? How do we get your Facebook page where you either contradicted the statement you made earlier or you foolishly posted a picture with you standing there with the stolen property admitted against you?”
And, as the man who consulted on the jury instructions for U.S. v. Barry Bonds, he understands the fears of a defendant about getting a fair trial.
“They have a valid argument,” Hoffmeister says.
Highly publicized cases such as that of Jodi Arias, who was convicted of brutally murdering her ex-boyfriend, make it virtually impossible to sit an unbiased jury, he says.
In a story about the penalty phase of Arias’ trial, CNN quoted jury consultant Richard Gabriel as saying, “(Social media is) incredibly powerful because it is a juror interacting in their natural environment. It’s them unedited, uncensored and not trying to couch things in way that’s politically correct. So you have a candid view of the juror, and it allows you to see how they view the world and how they express themselves.”
To his point, an alternate juror allegedly ignored instructions by the judge and posted on Facebook something about Arias’ temper.
“If (Arias) does have Latina blood, it may explain a temper lol,” the juror wrote.
Jurors aren’t the only ones with smartphones, of course. Judges and lawyers can also abuse technology — and get in trouble.
Says UD law professor Denise Platfoot Lacey, “Oftentimes it’s personal social media abuses that have gotten them disciplined. For instance, a lawyer asks for a continuance because he’s got too heavy a workload and then posts on social media that they’re really hungover because they were out too late the night before.”
Lacey served for two years as the secretary to the Supreme Court Commission on Professionalism for the Supreme Court of Ohio, investigating complaints against lawyers and judges. Social media now adds more challenges.
“Lawyers and judges have taken an oath to be a part of the system that will be fair and impartial, ” she says. “If there are abuses, people see this and they wonder about the officers of the court to whom we’ve entrusted the system.”
So what can be done about it? Can anything be done about it? As Hoffmeister says, the court system “changes at a glacial pace.”
One thing judges can do is change their instructions to juries — something O’Connell has done — cautioning them to not speak or use social media to communicate with anyone about the case. The Ohio State Bar Association amended its recommendations on jury instructions in 2010 to include just such a social media clause.
But, says Hoffmeister, expecting a juror to keep quiet about a case has never been practical — or realistic.
“I never believed that people went home after jury duty and didn’t talk to their wife or their husband about it,” he says. “You’re kidding yourself if you believe that. I think people always went home to their spouses, they talked about the case, and their spouses responded by saying, ‘Oh, I think he’s guilty’ or ‘not guilty.’ I just think it’s at a higher level now where you can reach out and talk to people outside your immediate vicinity.”
Judges could also confiscate any device — phone, tablet — that could connect a juror to the Internet, or consider something as drastic as sequestration.
Neither is entirely effective.
Sequestration, Hoffmeister and O’Connell agree, is expensive and an invitation for jurors to lie their way out of service.
“It turns people off,” Hoffmeister says.
Meanwhile, seizing phones and tablets could send some jurors into jittery fits.
“I’ve read some stories,” Hoffmeister says, “that say the Internet can be addictive. When you get an email it releases endorphins in your mind. It’s a pleasant sensation to you.”
For some, it’s a sensation they can’t live without. Last fall, the Behavioral Health Medical Center in Bradford, Pa., rolled out a 10-day inpatient program to help users kick their Internet habit. It may not be the same as asking a junkie to quit popping pills, but it’s an acknowledgement that some people just can’t give up their smartphones and tablets without help.
There are more extreme measures for judges, of course, such as sending jurors who violate the social media instructions to the slammer.
“That would be the last solution,” Hoffmeister says. “We in this country don’t punish like they do in England and other common law countries. In England, I’ve seen them give someone six months, which I thought was outrageous, for violating the rules. In England they hammer the jurors. In this country, we don’t hammer jurors.”
O’Connell agrees that sentencing jurors to jail time would be onerous.
“We always try to do the least invasive thing,” he says. “We’re always walking on eggshells now about making things convenient and easy and pleasant, if you will, for jurors.”
Pleasant for jurors, maybe, but not so much for defendants who must not only face the judgment of their peers but also hundreds, sometimes thousands, of anonymous “friends.”
“I know one case,” Hoffmeister says, “where a woman juror in a sexual assault trial took a Facebook poll and said, ‘OK, what do you Facebookers think I should do?’”
Scary, yes, but not the end of the world — or our justice system — says attorney Rion.
“For the most part, I believe jurors, citizens, try to be fair,” he says. “Examples to the contrary are always there, but I think you can rely on the jurors of this county, or any county, to at least try to be fair. Whether that translates into perfection, it never does, but it seems like people are well-intended in our judicial system and there is a great pride people have of it.
“Due to the extent that we have to be careful and watchful of (social media), I agree completely. But it’s not as if we’re in a situation where we need to scrap the jury system and start over. It’s still the best mechanism for justice that we could possibly have.”
Curbing the social media vigilantes
Can there ever be uniform instructions to juries about the dos and don’ts of social media? University of Dayton law professor Thaddeus Hoffmeister doesn’t think so.
“From state to state and county to county, things are different,” he says. “There are just so many jurisdictions, I don’t see how we could come up with a set of standards that everyone could use. There are some approaches you can use, but there is no surefire method.”
Among those approaches:
Better jury instructions. “Ask them if they can do without their phones for days or weeks. If they can’t, excuse them. And tell them why it’s important they don’t use social media. Juries need to know why they shouldn’t be using their phones.”
Attorneys and judges should set an example. “If the judge is using his phone and the attorneys are using their phones, jurors logically ask, ‘Why can’t I use my phone?’”
Use the juror oath to promise to hear the testimony fairly. “I do believe people take that seriously.”
Offer rewards for good behavior. “In one case, the judge promised to keep a journal for every juror with every story written about the case if they stayed off their phones.”
Allow the jurors to ask questions. “If there’s an accident scene and you’re not going to take us there, or you’re going to use legal terms I don’t understand, well, you could get away with that 20 years ago because I wasn’t going to go to the library and look up ‘reasonable doubt’ or ‘respondeat superior.’ Now, I can just ask Siri and she’ll tell me what that means. So let them ask their own questions.”
Even though the standards for social media in the judicial system can’t be consistent, he does say things need to change if courts want jurors to be fair and impartial.
“The law doesn’t want to change,” he says. “The law says we’re going to change at a glacial pace. We are in charge. The judge and the lawyers say, we’ll tell you what you need to know. No, technology is going to force you to change and, in my opinion, it’s empowering jurors.
“I think the rules of evidence, as they are, are too restrictive. I think juries should see more. I think they should see more evidence. I don’t know how much more or where to draw the line. But I think they should see more and I think they will see more because, if we don’t give it to them, they’ll find it themselves.”
Gene Williams is a freelance writer who misses the day when letters were written by hand, calls were made from phones attached to the wall and movies were never interrupted by smartphones too dumb to stay dim in a darkened theater.