Thursday, July 2, 2009

Court tells jurors to say no to cell phones

The Michigan Supreme Court has banned all electronic communications by jurors during trial. As a result of complaints from prosecutors, judges will begin instructing jurors on September 1, 2009 that they are not to use any hand-held devices while in the jury box or during deliberations.

Prosecutors apparently were worried that some jurors weren't paying attention during trial and that others were using their phones to pull information about the case off the internet.

While I find it interesting that prosecutors called for the ban in Michigan, I agree that Web 2.0 presents a problem in the courtroom. Text messaging, Twitter, Facebook, MySpace and e-mail can all taint the jury process.

Maybe it means we should redefine the instructions we give jurors when they report for jury duty. It's very possible that this notion that a juror should not discuss the case outside deliberations or conduct any research on his own is as useful as the Maginot Line. If we go back 15 years we wouldn't be having this discussion -- the technology didn't exist and it was more realistic to expect a juror to remain insulated. And what good does it do to prohibit the use of the devices during testimony and deliberations when a juror is just as likely to hit the internet at home?

Maybe it's time to request questionnaires in ALL cases, including the most basic misdemeanor cases. Ask the jurors whether they use social media or blog. If they do, ask them what name they use on social media sites or on blogs. Then request time to research each site listed to see if there is anything on the web that could generate a challenge for cause.

What do you think?


Feisty said...

If asked during voir dire if I blog, I would certainly say that I do. If asked for the address of my blog, I would tell both sides to screw off. Voir dire doesn't give the prosecution or the defense license to read what I write in my spare time, especially as I do it anonymously.

If lawyers have specific questions that might give them a better idea as to how I might decide a particular case, they can ask those questions. I will be more than happy to answer. But they don't have a right (and I doubt they would have the time, even in a capital case) to read everything I've written on my blog to determine if I'm fit for jury service.

I'm less worried about other social networking sites, particularly when the potential juror intentionally makes his identity known publicly . . . that should be fair game. But if someone wants to remain anonymous, he should be permitted to do so.

Paul B. Kennedy said...

Thank you for your comment. My fear as an attorney is a juror saying he has no biases that would prevent him from hearing the case and deciding it on the facts of the case and those facts alone; and then finding out he had expressed strong opinions on a key issue on a blog or a social media site.

So, maybe a fairer question would be "have you ever blogged about an issue that might arise in this trial?"

Of course, if someone were unwilling to answer the question, that would be grounds to strike.

Feisty said...

Thanks for your reply -- I think that approach might be appropriate.

The sad thing is that I realize now that I have a fairly significant pro-defense bias, particularly when it regards DWI, drug possession and other non-violent crimes.

Strike that. . .

I guess I have a bias towards all defendants, as I should. After all, people are innocent until proven guilty.

While that doesn't mean that I couldn't find a defendant guilty, I'd have to be pretty certain to convict, which is the standard that the law requires.

I guess I worry that if I answered a prosecutor's question by saying that I've written numerous posts about DWI and have read many NHTSA studies, I'd be an automatic strike for the prosecution in a DWI trial. That said, I'd do my best to answer honestly.