In a high-profile criminal case in Maryland, lawyers for Baltimore Mayor Sheila Dixon are appealing the conviction of their client because almost half the jurors, in contravention of the judges orders not to communicate during the trial, “friended” each other on Facebook.  In another criminal case, the Maryland court of appeals overturned a first degree murder conviction because a juror consulted Wikipedia, the online site that touts itself as “the free encyclopedia that anyone can edit.”

In another case this year, a $12.6 million award is up in the air because a juror was twittering before, during and after the trial.  In the brave new world of Twitter, every man is a poet for 140 characters; via the mini-blog Twitter, this particular juror compared himself Sidney Lumet’s 1957 film “12 Angry Men,” flaunted his desire not to avoid jury duty, instead looking forward to “rocking it,” and after, or during–which is up for dispute in the appeal–bragged that he had just awarded the $12.6 million of someone else’s money. Needless to say, the defendant was not impressed and appealed. 

I guess I took it for granted that jurors can’t take their cell phones into jury duty with them.  Jury instructions usually limit jurors to just the facts presented to them in the court room.  Jurors are not supposed to watch media coverage of the case, do their own research on the internet, or seek the opinions of friends or even each other during the time they are in trial.  And the reasoning? According to www.groklaw.net, while discussing why judges can read what they want, but that jurors cannot:

A number of things in the US court system are there because we have a layman jury system, and certain steps are taken to protect them from materials that might confuse a person who isn’t legally trained. You’ll see that a lot when we get to the trial, with respect to what evidence a jury can and can’t have presented to it. It’s very complex. Judges on the other hand can be exposed to an article and he or she will just say, “That’s hearsay. I’ll disregard that,” as appropriate, or whatever, whereas a jury won’t even know what hearsay is most of the time. Heaven only knows, the exceptions to the hearsay rule can seem counterintuitive sometimes.

So it’s the lack of legal training that we are compensating for when we try to limit jurors to basing their decisions solely on in-court information.  But couldn’t a juror share what they are learning?  What’s wrong with Facebook updates? Twitters? Blogging?  As long as a juror does not receive knowledge, what’s wrong with the juror blogging the experience for others?  Lawyers polled by Law.com in 2005 said that it’s ok to blog the experience, but not until after the trial:

Lauren Gelman, associate director for Stanford Law School’s Center for Internet and Society:

“I don’t think bloggers should blog jury duty until after their service has concluded. A long history of thinking about the role of juries has led to the rules we have — deliberate only amongst the jury with information selected by the advocates and vetted by the judge. This is a completely different model than the deliberation that occurs in the blogosphere. Interestingly, the press comparison in this case does not work, because the press has greater access to information about the trial than jurors do. Access to information by jurors is purposely limited.

“So I’d be happy to endorse bloggers playing the same role that journalists do in court proceedings (access and timely reporting), but I don’t think the rules that apply to jurors should change if one happens to be a blogger or journalist.”

Wendy Seltzer, visiting assistant professor at Brooklyn Law School and blogger of Wendy’s Blog: Legal Tags:

“I agree with Lauren here. Bloggers are free to report on other trials, in which they’re not jurors, but they shouldn’t attempt to be both judge and witness when called for jury duty.

“Real-time reporting from within the jury box could hurt the dynamic of the jury, where jurors are supposed to decide facts based on evidence presented to them, in deliberations with their fellow jurors. For example, someone who had publicly blogged a position based on opening statements might be more reluctant to shift his or her opinion to take later evidence into account.

“Trackbacks, or comments, on a blog could be even greater concern: We deliberately shield jurors from some facts, such as evidence gathered in violation of Fourth Amendment protections, and ask them not to discuss pending cases with the outside public.

“After the trial concludes, I think it can be blogged — respectful of other jurors’ privacy and any limits set by the judge.”

With these rationales for the jury system, I decided to check the local jurisdictions to see what restraints are formally in place. Utah follows the Model Utah Jury Instructions published by Lexis Law Publishing.  Here’s what the Utah state court’s website states about communications during jury duty:

It is important that you not discuss the trial with anyone (even fellow jurors) until the jury retires to deliberate. In a multi-day trial, you must not discuss the case with family, friends, or anyone else. If someone approaches you in the courthouse or elsewhere and tries to discuss the trial with you, leave immediately and report the incident to the judge. The bailiff can deliver any written messages you wish to convey to the judge.

Jurors must make their decision on the basis of the evidence presented at the trial, and not on the basis of any outside information about the case. For this reason, jurors are prohibited from reading, watching, or listening to any media accounts of the trial, from visiting the scene of the events, and from trying to discover any information about the case on their own.

The District Court of Utah, the federal bench, goes one step further and prohibits phones in the court room.  From the jury duty pamphlet on their site:

**PURSUANT TO AN ORDER OF THE COURT, CELLULAR PHONES ARE NOT PERMITTED IN THE U.S. COURTHOUSE. PLEASE LEAVE YOUR CELL PHONE IN YOUR CAR OR AT HOME.

And that’s exactly how it appears in the pamphlet–bold, red, and underlined.  If nothing else, it conveys the seriousness with which the courts view the potential for abuse of the jury system in cell phones, especially as they become increasingly able to access a wealth of information and resources.  As DLA Piper Partner Jeffrey Rosenfeld opines at Insidecounsel.com, “You’ve got jurors who could literally be sitting in the box running an Internet search while testimony is going on.”

Perhaps worse than just seeking information unvetted by the restraints and guidance of attorneys and judges in court, there is the pure distraction factor of having cell phones, when they are permitted, in the jury box.”The last thing you need in a lawsuit is three jurors instant messaging their best friends, telling them what’s happening on the stand because the guy’s hair is sticking up,” says Buchalter Nemer Shareholder Richard Ormond to insidecounsel.com.

Courts have issued orders against bringing any type of cell phone into the court room, but there is nothing to prevent a juror from logging on to the internet at home.  At least not yet.  I don’t think that it would be a far cry for courts to require jurors to register all of their social media accounts with the court for the duration of their jury duty. (I can hear the privacy lobby screaming already….)