BY ROSALIND R. GREENE AND JAN MILLS SPAETH ...adjuryresearch.com/pdf_docs/pubs_art_jury_selection/AZ...the jury system in several ways. Information is being sent out by jurors, responses

AreTweeters

orGooglers in Your JuryBox?

BY ROSALIND R. GREENEAND JAN MILLS SPAETH

Guilty until you prove to meotherwise.” “I say hang ’emfor parking violations and

increase punishment from there.”“Someone has to do something aboutthese personal injury lawyers.” “Hung overfor jury duty.”These are just a small sampling of

“tweets” found in a 15-minute search atwww.twitter.com. Puffing? Perhaps.Exaggeration? Most likely. But wouldn’tyou want to know if these statements camefrom your jury pool or seated panel? Theinformation is just a click away. Not all, butmany “tweets” are linked to a name andlocation, and even include a photo of the“tweeter.”Twitter is a rapidly growing, Internet-

based communication source. Subscriberssend short text messages—“tweets”—toanyone choosing to receive them. Thesemessages transmit through computers orcell phones and are typically used toannounce one’s activity, such as “went tothe movies,” or “have jury duty.” Thisnewest form of social networking has foundits way into the courtroom. Social network-ing sites and Internet research advance-ments raise a series of new or at leastexpanded issues regarding juror communi-cation.Many attorneys and judges are up to

speed with the latest technology and com-munication media. However, recent surveydata indicate that only six percent useTwitter or any other source of microblog-ging.1 Therefore, a vocabulary briefing maybe in order (see sidebar on p. 40).

Information Moving Out Fromthe Jury BoxThe influx of easily accessible and portablecommunication and research devices affectsthe jury system in several ways.Information is being sent out by jurors,

responses come back in, jurors are con-ducting their own Internet research, andattorneys have access to more informationabout jurors than ever before. In March2009, attorneys for former Pennsylvaniastate senator Vincent Fumo sought a mis-

trial in a five-month federal corruption casebecause a juror posted updates on Twitterand Facebook during the trial. The judgedid not dismiss the juror, and Fumo wasconvicted on 137 counts. His lawyers planto appeal. According to the defensemotion, the juror posted a message onFacebook that said, “Stay tuned for a bigannouncement on Monday everyone!” andtweeted, “This is it … no looking backnow!” When questioned by the judge, thejuror said that his posts were intended toexpress his thoughts rather than communi-cate with others.2

Within days of the Fumo case, a build-ing products company asked an Arkansascourt to overturn a $12.6 million judg-ment because a juror used Twitter to sendtrial updates. His tweets included, “I justgave away TWELVE MILLION DOL-LARS of somebody else’s money” and “Ohand nobody buy Stoam. Its bad mojo andthey’ll probably cease to Exist, now thattheir wallet is 12m lighter.”3 The jurorinsisted that he did not post any substantivemessages until after the verdict had beendelivered. The judge concluded thatalthough the posts were in bad taste, theydid not amount to improper conduct. Thedefense argued that the tweets showed thatthe juror was biased against their client,Stoam, and “predisposed toward giving averdict that would impress his audience.”4

Some jurors may be looking for their 15minutes of fame. Cynthia Cohen, Presidentof the American Society of TrialConsultants (ASTC), explained that jurorson big cases may feel empowered becausethey have a hand in the outcome.“With Twitter and instant messaging,

being first, getting something out immedi-ately is a thrill for them. They get caught upin the excitement instead of following therules and laws of the legal system. It’s defi-

ROSALIND R. GREENE, J.D., and JAN MILLS SPAETH, PH.D., are litigation consultants withAdvanced Jury Research, a trial consulting firm based in Tucson (www.adjuryresearch.com). Workingthroughout the state and nationally, they assist with jury selection, witness preparation, case strategyand focus groups/mock trials. They can be reached at (520) 297-4131 or 1-866-505-4131.

nitely a problem.”5 Cohen also noted thatthe ASTC is working on a handbook ontrial ethics that will include juror and socialnetworking.6

This electronic communication seemsto have an unusual, addictive hold onmany. Commenting on the August 6,2009, social network crash, former ASTCpresident Douglas Keene observed, “Some‘users’ panicked as much as you might haveexpected from drug addicts. Users were‘jittery,’ ‘naked,’ ‘freaked out.’”7 For suchcompulsive users, it may be much easier torefrain from discussing the case over dinnerthan to lay off their technology.Admonishing jurors not to discuss the

case outside the deliberation room is cer-tainly not new. It seems, however, thatmany jurors do not see blogging, tweetingor posting as communication, or at leastthey don’t consider it to fall within therubric of traditional admonitions.In a California felony trial, the judge

admonished the jurors orally and in writingto not discuss the case. Nevertheless, ajuror (who was an attorney) blogged aboutthe trial, stating, “Nowhere do I recall thejury instructions mandating I can’t postcomments in my blog about the trial. (Ha.Sorry. will do).” The Court of Appealsvacated the judgment, and the CaliforniaState Bar suspended the juror.8

Another concern is that the advent andpopularity of new avenues of communica-tion are increasing the stakes. In the past,the judge’s admonition was primarilydesigned to prevent jurors from discussingthe case with family, close friends or co-workers. With Twitter, Facebook, andblogs, the potential impact is raised expo-nentially. Now a juror can communicatewith thousands of people with one click,and the recipients likewise can forward totheir groups. In turn, the array of com-

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ting during the trial. The jurorexplained that his sister hadbeen trying to get him tobabysit. There was no indica-

tion that the juror was sharing any infor-mation about the case, however, the attor-neys and judge agreed to replace the jurorwith an alternate.Although daydreaming, drowsy or doo-

dling jurors are not new, portable electron-ic devices present unwarranted competitionfor a juror’s attention. We live in an era inwhich texting and tweeting occur in themidst of a dinner date, business meeting orclass lecture. Why not the courtroom?Moreover, texters are becoming so adeptthat some can even text from their pockets.We simply cannot assume that jurors evenrealize that this is not appropriate unless itis clearly specified and reinforced by thecourts.In Maricopa County, a mistrial was

called during the penalty phase of a capitalmurder case. The defendant had been con-victed of killing defense attorney JustinBlair in a drive-by shooting. Judge PaulMcMurdie specifically directed jurors thatthey could not tweet, blog or use theInternet in any way to either investigate thecase or to communicate about it. After sev-eral days of deliberations, a juror informedthe judge that he was the only juror favor-ing death and that the remaining 11 jurorswere unduly pressuring him to change hismind. The juror claimed that another jurorhad accessed the Internet via her cell phoneduring deliberations to find out whatwould happen if a unanimous vote was notreached. He further claimed that earlier inthe trial, an alternate juror had searched theInternet for elements of the trial.Subsequently, the judge and attorneys

questioned the jurors in detail. Accordingto defense attorney Treasure VanDreumel,it became apparent that the jurors had notused the Internet, as alleged, and the jurorwho wrote to the judge was just trying toend the deliberations. Ironically, the jurorused the judges’ explicit instructionsregarding the Internet to manipulate thesystem and cause the mistrial.Arizona appears to be very progressive

in addressing these issues. The CriminalJury Instructions Committee has draftedPreliminary Criminal 13–Admonition,which is specific and direct about the use of

electronic devices, the Internet, and bothincoming and outgoing communicationsduring trial. The Admonition, in part, readsas follows:

Proposed Admonition“Each of you has gained knowledgeand information from the experiencesyou have had prior to this trial. Oncethis trial has begun you are to deter-mine the facts of this case only fromthe evidence that is presented in thiscourtroom. Arizona law prohibits ajuror from receiving evidence not prop-erly admitted at trial. Therefore, do notdo any research or make any investiga-tion about the case on your own. Donot view or visit the locations wherethe events of the case took place. Donot consult any source such as a news-paper, a dictionary, a reference manual,television, radio or the Internet forinformation. If you have a question orneed additional information, submityour request in writing and I will dis-cuss it with the attorneys.

Do not talk to anyone about the case,or anyone who has anything to do withit, and do not let anyone talk to youabout those matters, until the trial hasended, and you have been discharged asjurors. This prohibition about not dis-cussing the case includes using e-mail,Facebook, MySpace, Twitter, instantmessaging, Blackberry messaging, I-Phones, I-Touches, Google, Yahoo, orany internet search engine, or any otherform of electronic communication forany purpose whatsoever, if it relates inany way to this case. This includes, butis not limited to, blogging about thecase or your experience as a juror onthis case, discussing the evidence, thelawyers, the parties, the court, yourdeliberations, your reactions to testimo-ny or exhibits or any aspect of the caseor your courtroom experience with any-one whatsoever, until the trial hasended, and you have been discharged asjurors. Until then, you may tell peopleyou are on a jury, and you may tellthem the estimated schedule for thetrial, but do not tell them anything elseexcept to say that you cannot talk aboutthe trial until it is over.

One reason for these prohibitions isbecause the trial process works by eachside knowing exactly what evidence isbeing considered by you and what lawyou are applying to the facts you find.As I previously told you, the only evi-dence you are to consider in this mat-ter is that which is introduced in thecourtroom. The law that you are toapply is the law that I give you in thefinal instructions. This prohibits youfrom consulting any outside source.

If you have cell phones, laptops orother communication devices, pleaseturn them off and do not turn themon while in the courtroom. You mayuse them only during breaks, so longas you do not use them to communi-cate about any matter having to dowith the case. You are not permitted totake notes with laptops, Blackberries,tape recorders or any other electronicdevice. You are only permitted to takenotes on the notepad provided by thecourt. Devices that can take picturesare prohibited and may not be used forany purpose.”

In addition to its specificity, this admo-nition educates the jurors, providing arationale for the prohibitions. This type ofexplanation may prove particularly helpfulfor those jurors who want to do the rightthing, but who have a misguided notionthat they are helping by conducting theirown research. Pending approval by theBoard of Governors, many Arizona judgeshave already implemented similar languageinto their admonitions.Even with the proposed Admonition,

several issues remain. Who should beallowed to carry electronic devices into thecourthouse? How should people be pun-ished for violating a judge’s order? JudgeJan Kearney, the presiding judge of thePima County Superior Court, would like toform a committee to discuss these issues.16

The Director of Jury Management,Maricopa County, Mitch Michkowski,Ph.D., offered his thoughts on the matter:I believe that most trial courts contin-ue to enthusiastically embrace the for-tunes of technology, though as in thecase in Maricopa County Superiorcourts, judges understand the impor-

w w w. m y a z b a r. o r g / A Z A t t o r n e yA R I Z O N A AT T O R N E Y F E B R U A R Y 2 0 1 042

tance of wanting to avoid jurormisuses of cell phones, com-puters, and other electroniccommunication devices. Jurors

are customarily cautioned by ourjudges by means of an admonitionwhich is designed to specifically clarifythe ground rules that apply. Jurors areexpected to observe and follow alljudicial instructions in order toavoid unnecessary mistrials and inthe vast majority of cases, ourjurors have understood and com-plied admirably.

Possible SolutionsIn addition to strengthening theadmonition, some courts are alsoconsidering restricting the use of, orbanning, cell phones, Blackberries,and other electronic devices in thecourthouse, or at least in the juryroom.In the San Diego case regarding

Jennifer Strange, the mother who died dur-ing a radio contest to see who could drinkthe most water without going to the rest-room, the defense was concerned aboutjurors conducting independent researchdue to the vast media coverage. They notedthat tens of thousands of results come upwhen Googling “Hold Your Wee for a Wii”or “water intoxication.” As reinforcement

to his admonition, the judge ordered thatthe jurors must sign declarations attestingthat they won’t use “personal electronicand media devices” to conduct independ-ent research or communicate about thecase. These declarations are to be madeunder the penalty of perjury, both beforeand after the trial.17

Although many of the protectionsagainst prohibited juror communicationmust come from the courts, there are sev-eral things that a trial attorney can do,according to Susan C. Salmon of Quarles &Brady:• Ask the trial judge to expand her boiler-plate admonition to incorporate anexplicit explanation of the policiesbehind the rule and the consequences ofviolating it. Be prepared with your own

draft admonition and submit it withyour jury instructions.

• To the extent that the judge or yourjurisdiction permits you to do so, usevoir dire to (1) educate the panelregarding why they shouldn’t do outsideresearch, including Internet research,and (2) enlist the jurors in helping the

court enforce that restriction.• In Arizona, jurors can submitquestions to be asked of a givenwitness. Sometimes those questionsmay clue you in that jurors aredoing improper outside research.Be alert to that possibility, and beprepared to ask the court toinquire.• Bone up on your e-discoverylaw, and be prepared to subpoenatext message records, laptop harddrives and other electronicallystored information if you suspect

juror misconduct created an appealableissue.18

In addition, trial attorneys will want tobecome very familiar with the language andterminology associated with social net-working so that they will be prepared toconduct appropriate follow-up during voirdire. Moreover, they may want to incorpo-rate a line of questioning during voir dire toidentify jurors who may have problems fol-

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1. 2009 Networks for CounselStudy, Leader Networks, at 12,available atwww.leadernetworks.com/documents/Networks_for_Counsel_2009.pdf.

2. Scott Michels, CasesChallenged Over “Tweeting”Jurors, ABC NEWS, Mar. 17,2009, available atwww.abcnews.go.com/print?id=7095018.

3. Id. at 2.4. Id.5. Robert K. Gordon, No

Tweeting During the Trial,Please, HUNTSVILLE (ALA.)TIMES, Oct. 20, 2009, avail-able at www.al.com/news.

6. Id.7. Douglass Keene, Panic on

Tweet Street: “Without Twitter,I Felt Jittery and Naked,” JURY

ROOM, Aug. 7, 2009, avail-able at www.keenetrial.com/blog/2009/08.

8. The juror also failed to dis-close he was an attorney; CAL.B.J., Aug. 2009, available atwww.calbar.ca.gov.

9. John Schwartz, As Jurors Turnto Web, Mistrials Are PoppingUp, N.Y. TIMES, Mar. 18,2009, available atwww.nytimes.com/2009/03/18/us/18juries.html.

10. Erin Geiger Smith, CaliforniaJurors Will Be Told Not ToTweet, BUS. INSIDER, Sept. 21,2009, available atwww.businessinsider.com; seealso Kate Moser, Court LaysDown Law on Jury InternetUse, RECORDER, Sept. 9,2009.

11. Russo v. Takata Corp., 2009

WL 2963065 (S.D. Sept. 16,2009), available atwww.sdjudicial.com/opinions/down-loads/y2009/24726.pdf.

12. Id. at 2.13. Id. at 21.14. Id at 14.15. Id.16. Kim Smith, Internet, Cells

Raise New Jury Concerns,ARIZ. DAILY STAR, Sept. 8,2009, available atwww.azstarnet.com/sn/printDS/308049.

17. Greg Moran, Revised JuryInstructions: Do Not Use theInternet, S.D. UNION-TRIBUNE, Sept. 13, 2009,available at www3.signonsandiego.com/stories/2009/sep/13/revised-jury-instruc-tions-do-not-use-internet/.

18. Susan C. Salmon, Googlingand Tweeting and Facebooking,Oh My! Jurors ConductingOutside Research DuringTrial, E-DISCOVERY BYTES,Mar. 17, 2009, available atwww.ediscovery.quarles.com/2009/03.

19. Kim Smith, Internet, CellsRaise New Jury Concerns,ARIZ. DAILY STAR, Sept. 8,2009, available atwww.azstarnet.com/sn/printDS/308049.

20. Adam Worcester, Jurors’Tweets, Texts Upset TrialJudges, PORTLAND BUS. J.,Sept. 18, 2009, available atwww.portland.bizjournals.com/portland/stories/2009/09/21/focus2.html.

endnotes

Curiosity is a powerful drivingforce. Jurors are astute, and ifthey are left with unanswered

questions, the tempta-tion to “cheat” maybe hard to resist.

lowing the court’s instruction to only con-sider the evidence presented during trial, oreven believe that such an instruction iswrong. Finally, attorneys can monitoronline writing during and after trial. One ofthe best methods is through a feed reader.Google Reader is user-friendly and willsearch various Internet sites for key wordsthat you input, such as case name, city, juryduty, and any other terms that might makeyour case identifiable. It then gathers all rel-evant writings in one convenient place foryour review.The advancements are not all bad for

the jury system. In fact, attorneys can usesocial networks and Internet capabilities tolearn more about their prospective jurors.As referenced at the beginning of this arti-cle, some “tweets” can tell you quite a bitabout jurors’ attitudes. Similarly, payingattention to jurors’ social networking,blogs and Web sites can tell a lot abouttheir values, attitudes and experiences thatwould never be fully revealed in voir dire.Even with this upside, attorneys should

proceed with caution. Just as juror Internet

and parties always have found ways to try tocircumvent or thwart the system. However,we can expect that increased ease willdirectly equate to increased activity andneed to be prepared.The issues are new, many and wide-

spread. The solutions are still evolving.Some will have to come from the courts.For now, carefully addressing these issues invoir dire can help identify undesirable orproblematic jurors, educate the jurorsregarding their role, and reinforce theadmonition. It will be critical to queryjurors on whether they have mentionedjury duty in Twitter messages or blogs. Ifso, get them to the bench to determine theexact wording of their comments. Askjurors if they have been reading Internetinformation on the jury duty experiences ofothers, and if so, determine what thisentailed. Judges must specifically instructthe panel not to discuss the case through e-mails, Twitter messages, blogs, chat rooms,or other Internet options. Without ques-tion, new technology and communicationscall for new courtroom practices.

research may not be credible, attorneyscannot trust that information from a juror’sblog, MySpace or Facebook is truthful.Then again, the fact that someone postedinaccurate information may be telling inand of itself.Attorneys also may want to tread lightly

when questioning jurors about their net-works. Although blogs, MySpace andTwitter may be public displays, some jurorsmight feel personally invaded if they sensethey are being researched. Attorneys andconsultants will want to be careful not toconjure up images of Gene Hackman inRunaway Jury, but they need to addressthe issue.Beyond juror use, technology is wreak-

ing havoc in other trial areas, as well.Tucson attorney Laura Udall recentlylearned that a witness had repeatedly textedanother witness during trial to tell him howto testify.19 In Portland, a judge wasshocked to discover that a defendantaccused of domestic violence was textingthe victim while she was waiting in thecourthouse to testify.20 Jurors, witnesses AZ

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