The laws and ethics surrounding social media in the courtroom are updating faster than Facebook’s front page and trial lawyers need to stay of ahead of it before a wayward juror sinks a trial.

Photo Credit: Spencer E Holtaway
Photo Credit: Spencer E Holtaway

California’s Governor Jerry Brown signed a bill overturning a law that criminalizes social media usage by jurors during a trial despite being warned by judges to stay off of Facebook, Twitter and other platforms. While it’s no longer a misdemeanor, tweeting jurors can still be held in contempt of court.

California dropped the law in part because “criminalizing the conduct threatened jurors’ constitutional rights against incriminating themselves if judges questioned them.That made it harder for judges to question jurors about using electronics,” according to the Associated Press.

The original law was meant to dissuade jurors from live tweeting trials, even though California isn’t the only state with that issue, according to Hayes Hunt in From The Sidebar.

[S]ome jurors have failed to get the point. Perhaps one of the more egregious instances of a juror using social media — and a great example of how that can have real-world implications — occurred in the Dimas-Martinez v. Arkansas capital murder case. During Dimas-Martinez’s trial, a juror repeatedly discussed the case via updates on Twitter even after being specifically instructed by the trial court to refrain from doing so.

Ultimately, the Arkansas Supreme Court found that such postings constituted juror misconduct that denied the defendant a fair trial and vacated Dimas-Martinez’s murder conviction.

While that is an extreme example, social media savvy jurors upending trials isn’t a common occurrence. In a survey conducted by two Illinois judges, the majority of jurors follow the rules when it comes to staying off their devices, writes Katherine Kirk for IAALS Online.

Based upon feedback from 583 jurors over 2 years, the authors recommend that judges give a specific opening instruction against the use of social media by the jury in each case. The study showed that of the 583 jurors given the opening instruction, only 47 felt tempted to use social media throughout the trial and deliberation, and 45 reported resisting the temptation—the remaining two jurors did not discuss whether they used social media. Though informal, the study suggests that when instructed to avoid social media by the judge early in the process, jurors abide by the rules.

And for the 8 percent of jurors who can’t take a social media break? Well, the American Bar Association did ok lawyers looking up juror’s social media pages within certain bounds. Searching a jurors’ public Facebook or Twitter account for misconduct does fit within ethical boundaries, according to Jennifer Marino Thibodaux in the E-Discovery Law Alert.

The [ABA’s Committee on Ethics and Professional Responsibility] further recognized that permissible attorney review of jurors’ social media may lead to the discovery of juror misconduct. … [T]he Committee reminded lawyers that they may have an obligation to report juror misconduct to the tribunal. The Committee explained that reporting may be limited to instances of criminal or fraudulent conduct, but that attorneys should familiarize themselves with applicable reporting laws in their jurisdiction.

A Detroit lawyer told the AP that he plans on digging into jurors’ social accounts for every trial. But since the ABA’s recommendations are so new, is social media snooping leveling the playing field for trial lawyers or just a waste of time?