Sunday, June 21, 2009

The two-edged sword of social media in the courtroom

While looking over the newspaper this Father's Day morning, I stumbled across an Op/Ed piece in the Houston Chronicle about the intrusion of social media into the jury system. It isn't the first challenge the jury system has seen, but it may be the most pervasive.

Former assistant US attorney Thomas Melsheimer and Dallas County Civil District Judge Craig Smith remind us of four well-publicized incidents in which jurors brought social media into the jury room:

• During a major federal drug trial earlier this year, the trial came to a screeching halt when eight sitting jurors admitted to obtaining information about the case from the Internet.

• During a political corruption trial in Philadelphia, a juror provided a running commentary about the case on Facebook. The defense objected, but the trial was allowed to continue. The defendant, a former state senator, was convicted.

• In Arkansas, a juror used his cell phone to post Twitter updates during the trial. When revealed, he couldn’t understand what the fuss was about.

• Finally, when a juror in England could not decide on a case, she posted details about the trial and asked readers to vote on how she should rule.

Web 2.0 is in the courtroom and you disregard this reality at your own peril. You have to ask potential jurors if they use Facebook, Myspace or Twitter. You need to know if any of your potential panelists blog. You need to see what they've posted, what they read, who they're fans of, etc. You need to ask the court for additional time to conduct this research before you can make intelligent decisions on who to challenge for cause and on whom to exercise your strikes.

And while you're running checks on the panelists, don't forget to look up witnesses on the internet, too. And it's best to tell your client to lay off the social media until the case is over - you never know who else is lurking in cyberspace.

You also need to know who's in the courtroom watching the proceedings. Are they there to learn the ropes? Are they blogging? Are they "live" tweeting your trial?

While Web 2.0 has given us an infinite amount of useful information at our fingertips, it's also created a field of new dangers for defendants and attorneys alike.

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