Summary of Feb. 18 ABA Conference on Public Understanding of the Courts in the Age of New Media

A summary of the ABA Conference on Public Understanding of the Courts in the Age of New Media, held 18 February 2011 at The University of Arizona School of Law’s Rehnquist Center, has been posted by Tim Eigo, Esq., of Arizona Attorney magazine.

The summary includes a selection of Twitter tweets about the conference, marked by hashtags #barmedia and #newmediaconf.

HT @christinemartin.

Browning, The Lawyer’s Guide to Social Networking

John G. Browning, Esq. of Thompson Coe has published The Lawyer’s Guide to Social Networking: Understanding Social Media’s Impact on the Law (Thomson Reuters West 2010). Here is a summary:

This product provides a comprehensive look at how social media is affecting the legal system. It examines the myriad ways in which information from sites like Facebook, MySpace, and Twitter is being put to use in everything from criminal and family law matters to personal injury, employment, and commercial cases nationwide. The author illustrates how the pervasive social networking phenomenon is redefining traditional notions of jurisdiction, duty, service of process, and legal ethics while using actual trial- and appellate-level cases to analyze the discoverability and admissibility of social media evidence.

Hoffmeister on Jurors in the Digital Age

Professor Thaddeus Hoffmeister of the University of Dayton School of Law has posted a paper entitled Jurors in the Digital Age. Here is the abstract:

Improper use of new technology by jurors inside and outside the courtroom has become so pervasive that commentators have coined new phrases to describe it: “Google Mistrials,” the “Twitter Effect,” and “Internet-Tainted Jurors.” Yet, despite the attention garnered, there has been little legal scholarship on this topic. The articles that have touched on the issue primarily focus on the benefits of technology and how it can be harnessed to aid in juror comprehension. This dearth of academic writing may be due in large part to the fact that the Digital Age is fairly new and still evolving and juror misconduct has historically been an under examined area of the law. This article attempts to fill that void by analyzing the detrimental impact of the Digital Age on sitting jurors and whether it can be lessened. While many of the issues examined in this article apply equally to civil cases, the primary focus of this article is on jurors deciding criminal cases.

The article begins, in Part I, by discussing the influence of the Digital Age on juror: (1) research; (2) communications; and (3) privacy. In Part II, the article analyzes possible ways in which to limit the negative impact of new technology on these three areas. While there is no panacea for these problems, this article focuses on several reform measures that could address and possibly reduce the detrimental effects of the Digital Age on jurors. The three proposed remedies are as follows: (1) improving juror instructions; (2) allowing jurors to ask questions; and (3) disclosing juror information to the opposing party. In Part III, the article goes on to examine what might occur if the aforementioned remedies are not implemented or prove ineffective. Specifically, the article suggests that the courts may, in the future, increase juror penalties and limit access to jurors.

As part of the research for this article, this author conducted the first-ever survey (“Jury Survey”) on jury service in the Digital Age. The Jury Survey Questions went to federal judges, prosecutors, and public defenders. The questions focused primarily on juror research but briefly touched upon juror communications and privacy. The purpose of the Jury Survey was twofold: (1) to discover from those who work with the legal system on a daily basis their views on the jury reform proposals suggested by this article; and (2) to learn about other possible reform measures. Of particular note, the Jury Survey Respondents, like this author, believe that improved and updated jury instructions are the best approach to combat online research and improper communications by jurors. In contrast, a significant number of Jury Survey Respondents doubted whether allowing jurors to ask questions would decrease the likelihood of juror research and communications to third parties. This article suggests the opposite and strongly encourages the use of juror questions.

HT @TheJuryExpert.

Survey on New Media / Social Media in Courts

An invitation has been issued to U.S. state court professionals to participate in an online survey about new media / social media and the courts. The survey is being administered by the Conference of Court Public Information Officers (CCPIO), in partnership with the Scripps School of Journalism at Ohio University and the National Center for State Courts.

According to the survey announcement, survey results will be posted here in August 2010.

The survey is part of the CCPIO New Media Project, “a year-long national research project to systematically examine new media and analyze their potential effects on the courts and media coverage of the court.” Click here for a description this project, and click here for the project’s Website.

HT Jim McMillan at Court Technology Bulletin.

Thomas, Are Juries Fair?

Professor Cheryl Thomas of the University College London Faculty of Laws presented a paper entitled Are Juries Fair?, at Jury Research Symposium 2010, held 25-26 March 2010 in Glasgow, Scotland, UK.

Click here for the full text of the paper: Cheryl Thomas, Are Juries Fair? (February 2010) (Ministry of Justice Research Series 1/10).

Here is the abstract:

This research asks: How fair is the jury decision‐making process? It explores a number of aspects of jury fairness for the first time in this country, and asks specifically:

• Do all‐White juries discriminate against BME defendants?
• Do jurors racially stereotype defendants?
• Do juries at certain courts rarely convict?
• Do juries rarely convict on certain offences?
• Do jurors understand legal directions?
• Do jurors know what to do about improper conduct in the jury room?
• Are jurors aware of media coverage of their cases?
• How is the internet affecting jury trials?

The research used a multi‐method approach to examine these issues:

• case simulation with real juries at Crown Courts (involving 797 jurors on 68 juries);
• large‐scale analysis of all actual jury verdicts in 2006–08 (over 68,000 verdicts);
• post‐verdict survey of jurors (668 jurors in 62 cases).

The study found little evidence that juries are not fair. However, it identifies several areas where the criminal justice system should better assist jurors in performing this vital role. The study also demonstrates that section 8 of the Contempt of Court Act 1981 does not prevent comprehensive research about how juries reach their verdicts and that research from other jurisdictions should not be relied upon to understand juries in this country.

[NOTE: Updated 22 March 2012 to provide a correct URL for the paper.]

Bromby on The Temptation to Tweet: Jurors’ Activities Outside the Trial

Michael C. Bromby of the Glasgow Caledonian University Faculty of Law presented a paper entitled The Temptation to Tweet: Jurors’ Activities Outside the Trial, at Jury Research Symposium 2010, held 25-26 March 2010 in Glasgow, Scotland, UK.

Click here for the slides accompanying the paper.

Here is the abstract:

Despite jury instructions designed to prevent jurors from commenting upon the trial, their deliberations or the process by which they reached a verdict, some have ignored these instructions and face the risk of prosecution under s8 of the Contempt of Court Act 1981. In the past few years following an explosion in the use of blogging, microblogging via mobile technologies (i.e. Twitter) and social networking sites such as Facebook and MySpace, there have been reports of juror impropriety and this has led to concerns being raised by many, including the Lord Chief Justice.

This paper sets out to review a snap-shot study of Twitter, a widely-used microblogging tool that can be updated easily from a mobile phone and read widely by anyone with an Internet connection, even without being an account holder. The use of Twitter, in particular by celebrities, has also become synonymous with updating the world at large on every single thought and movement of the account holder to the point of information overload. This study has limited validity, but aims to review whether jurors do indeed tweet about anything relating to their experience of jury service.

Legal Problems Arising from Social Media: Selected Resources

Here is a brief list of selected resources on legal problems arising from social media. The resources listed here concern problems for law-related individuals or organizations — such as lawyers, judges, jurors, legal witnesses, civil litigants, those accused of crimes, criminal investigators, courts, etc. — arising from the use of social media or similar digital communications technologies:

• The ABA Commission on Ethics 20/20 has an issues outline that includes legal ethical issues arising from law-related use of social media and other technology;
• Carolyn Elefant and Nicole Black discuss legal ethical issues facing lawyers who use social media, in their new book, Social Media for Lawyers: The Next Frontier (ABA 2010);
• The Cleveland Plain Dealer case — in which anonymous comments originating from a county judge’s online account were posted on a newspaper’s Website, on news stories about cases over which the judge presided — reported by Jacqueline Lipton;
• Richard Lardner discusses the use of social networks by law enforcement in his article, When Tweets Can Make You a Jailbird, Associated Press, March 17, 2010;
• The March 2010 issue of The Texas Bar Journal is devoted to the topic, “The Attorney and Social Media”, and includes an article on legal ethical issues by Debra L. Bruce entitled Ethically Navigating the Social Media Landscape (HT Ms. Bruce);
• A majority of leading U.S. divorce lawyers surveyed report seeing an increase in the use of evidence from social networking sites in U.S. divorce cases, according to survey results released on 11 February 2010 by the American Academy of Matrimonial Lawyers;
• Professor Joel Reidenberg discusses a number of incidents during his presentation at Harvard’s Berkman Center on 1 February 2010;
• Leslie A. Gordon discusses problems arising from lawyers’ connecting to clients on social networks, in her article, Why Can’t We Be Friends? Having Clients as Facebook Friends Is Full of Risks—and Rewards, ABA Journal, February 2010;
• Courts in Florida, New York State, and South Carolina have recently issued ethics opinions respecting judges’ use of social networks; see the discussion in this December 2009 post by Bruce A. Campbell;
• Steven C. Bennett of Jones Day discusses legal ethical issues arising from lawyers’ use of social media in his article, Ethics of Lawyer Social Networking, 73 Albany Law Review 113 (2009);
• Ken Strutin discusses legal and ethical issues arising from surreptitious gathering of legal evidence from social media in his article, Evidence on Social Networking Sites, New York Law Journal, 11 November 2010;
• A number of these issues were discussed at the conference entitled Social Networks: Friends or Foes? Confronting Online Legal and Ethical Issues in the Age of Social Networking, sponsored by the University of California Berkeley School of Law and held in Berkeley, California 23 October 2010;
• Robert Ambrogi discusses several incidents in his article, When What Happens Online Ends Up in Court, IMS Expert Services BullsEye, September 2009.
• Ken Strutin discusses a number of juror incidents in his article, Jury Deliberations in the Digital Age, New York Law Journal, 30 May 2009.

In response to the juror incidents described by these authors, courts have created jury instructions regulating jurors’ use of technology and social media. Click here for Molly DiBianca’s list of such jury instructions for U.S. state and federal courts.

Jury Instructions on Technology & Social Media

A list of U.S. federal and state jury instructions on jurors’ use of technology and social media has been posted at the Going Paperless Blog by Molly DiBianca, Esq., of Young Conaway Stargatt and Taylor, LLP.

Reidenberg on Social Network Use by Judges, Lawyers, Jurors, & Witnesses

In a presentation at Harvard’s Berkman Center for Internet & Society on 1 February 2010, Professor Joel R. Reidenberg of Fordham University Law School discusses how “the transparency of personal information available online erode[s] the rule of law.”

Click here for Dean John Palfrey’s post about the presentation.

Professor Reidenberg’s examples include:

• The wide public availability via the Internet of mortgages, Article 9 financing statements, and other legal documents respecting secured property;
• Social networking and judges: Legal ethics issues raised by judges’ friending on social networks lawyers, potential litigants, and potential witnesses who may appear before the judges; see, e.g.,:
• The case of a judge in Staten Island, New York;
• Florida Judicial Ethics Advisory Committee Opinion No. 2009-20.
• Legal ethics problems raised by lawyers’ friending on social networks persons who may become witnesses in cases in which the lawyer represents a party;
• Googling jurors:
• Jurors who use networked technology to obtain unauthorized information about their case (see, e.g., Ken Strutin’s overview); and
• Lawyers using networked technology to obtain information about potential jurors outside of the formal voir dire process.

His proposed remedy encompasses both norms and technology. Respecting norms, he proposes establishing “a norm of data misuse,” similar to the U.S. Driver’s Privacy Protection Act of 1994, and “limited purpose knowledge” of data, under which the use of data in its original context, consistent with the original intent and purposes of that data, and knowledge of that data in that context, are designated as “proper use,” whereas uses or knowledge of those data in other contexts or for other purposes constitutes “improper use.”

Respecting technology, Professor Reidenberg proposes “reengineer[ing] practical obscurity back into the network,” by adding to online data, metadata that specify the original context, intent, and purpose of the data, and that could enable automated enforcement of the norm described above.

The lively discussion following Professor Reidenberg’s presentation may also be of interest.