Tweets Let Attorneys Know When Jurors Misbehave

By Jocelyn Allison

Law360, New York (October 23, 2009) -- The linked-in nature of today's jury pool is making it harder to shield jurors from external information about their case. But it could also give attorneys another arrow in their quiver when things haven't gone so well.

“I think probably Facebook and Twitter are a good thing, because to the extent that people are going to violate the judges' order, we as attorneys would like to know about it,” said Victor Vital, a partner at Baker Botts LLP.

“If I get a verdict against me and I find out a juror has some tweets or logs on his Facebook page that say, 'I had my mind made up from day 1 that that guy was liable, and I was going to hit him for $1 million from the day they took me,' I would like to know that,” Vital said.

While it can be difficult to overturn a jury verdict, some attorneys, especially in large high-profile cases, are scouring the Web to find out whether jurors are opining online about a case or otherwise flouting the court's instructions, attorneys said.

In Arkansas, attorneys for Little Rock-based Stoam Holdings sought — and were denied — a new trial earlier this year after uncovering a juror's Twitter posts boasting about giving away “TWELVE MILLION DOLLARS of somebody else's money!” The judge ruled the posts were in bad taste but did not merit a new trial.

Some posts about a trial are likely to be more innocuous, and it will be up to the judge to weigh the juror's intent in violating the court's order as well as whether the information the juror obtained or sent out resulted in prejudice, attorneys said.

“You can't launch an investigation of jury misconduct unless you make a showing that there is reason to believe there has been a violation,” said Robert Weiner, partner in the litigation group at Arnold & Porter LLP.

“Judges don't like to go behind jury verdicts, so there needs to be concrete evidence in most cases that there has been problem,” he said.

Posts on Facebook or Twitter might be easier to dig up, but attorneys likely won't know whether a juror has done online research unless he communicates it to fellow jurors or someone else who comes forward with the information.

“If somebody is going to do it and not tell anybody about it, what are you going to do?” Weiner said.

“You can't stop people from violating the judge's instructions,” he said. “Most people will follow the rules, but there will always be some who don't, and if they don't 'fess up to their violation or exhibit knowledge that they would not otherwise have in the jury deliberations, you won't find out about it.”

The U.S. Court of Appeals for the First Circuit issued a published opinion in June vacating a drug distribution conspiracy conviction after finding the trial judge had not done enough to determine the effects on the rest of the jury of one juror's online research.

The juror had looked up the definition of certain terms used in the case, and the jury foreman notified the judge. The juror was replaced and the deliberations restarted, but the appeals court found that the judge should have questioned the jurors about whether they were influenced by the errant juror's research.

The risk of jurors seeking outside information about a case is not new, but the sheer wealth of data available online makes it easier for them to look up arcane terms or dig up dirt on the parties. And it's no longer just celebrities whose personal details and criminal histories are documented online.

“Now everybody's John Gotti,” said Daniel Ross, a partner at Stroock & Stroock & Lavan LLP who handles mostly civil commercial litigation. “Everybody has something on them on the Web, and everybody can look it up.”

If jurors post online, they run the risk of revealing their identities to the public and opening themselves up to jury tampering, especially in criminal trials. They also risk unwittingly communicating with other jurors if, for example, they post on a public MySpace or Facebook profile, Ross said.

“We're not seeing an explosion of people talking among themselves more than they did before people caught them,” Ross said. “But the difference in a Twitter situation or a Facebook situation is that jurors might be communicating to others on the jury and not even know it.”

To combat the problem, some judges have started to be more explicit in their instructions to jurors to include admonitions against using the Web. In Michigan, a new rule went into effect on Sept. 1 requiring state courts to instruct jurors not to use hand-held devices during deliberations or in the jury box.

It may seem obvious that you shouldn't broadcast your juror experience live on Twitter, but even sophisticated people need reminders. Television weatherman Al Roker made headlines earlier this year when he tweeted about his experience being called up for jury duty in Manhattan, Ross noted.

“Here's a fairly sophisticated guy that didn't understand that the media stops at the jury room door,” Ross said. “If he can't figure it out, imagine what other people are doing.”

In addition to admonishing jurors during trial, attorneys and judges can do their part to identify people early in the process who might be inclined to disobey the court's orders on electronic communications, said Cynthia Cohen, president of the American Society of Trial Consultants.

“I find that judges are asking now during voir dire whether jurors have a blog and what the name of the blog is,” said Cohen, who runs the trial consultancy Verdict Success in Los Angeles. “If you get that commitment from the juror upfront, you're more likely to avoid problems down the line.”

Courts can also ban mobile devices from the courtroom — some already do — though there could be some backlash from jurors accustomed to being in constant communication with family and friends. And that still doesn't keep them from doing research on Google or tweeting when they get home.

“Nobody actually has a really good solution,” Ross said. “I kind of go into this on the assumption that we're not going to be able to control what the jury knows, and frankly, in most of my straight-up commercial cases, it's not that important because there's nothing to look up. But if I were in the medical malpractice field, I would be worried.”