Jury duty is a civic responsibility, but many people see it as an inconvenience. Even a simple civil case may require a juror to take several days off from work to sit in a courtroom and listen to the details of some car accident. But every lawsuit is a serious matter, at least to the litigants, and it deserves each juror’s attention and respect.
One of the cardinal rules of jury duty is to never discuss a pending case with outsiders. Judges routinely caution jurors not to communicate with anyone about the case until after a verdict is announced. This includes posting thoughts or comments about the trial on social media.
Is Tweeting During a Trial “Misconduct”?
But not surprisingly–especially since many courts offer free wi-fi access–there are jurors who throw caution to the wind and post Twitter or Facebook messages while actively serving. This can not only lead to problems for the juror, it may also cast aspersions on the jury’s verdict and serve as grounds for an appeal. A recent Florida case, Murphy v. Roth, illustrates the types of problems that appellate courts have to deal with in the age of social media.
The case itself was a fairly routine personal injury lawsuit. The plaintiff alleged the defendant’s negligent driving caused a car accident that injured the plaintiff. The case was tried before a jury in Palm Beach County, Florida.
During the qualification of jurors–a process known by the Latin phrase voir dire–the judge cautioned members of the jury pool not to communicate with anyone about the case, which included “tweeting, texting, blogging, emails, [or] posting information on a website or chatroom.” After the final jury was selected and sworn, the judge repeated his instruction not to talk about the case online.
The trial lasted five days. The jury returned a verdict holding the defendant 40 percent liable for the car accident. Florida follows a pure comparative negligence rule in personal injury cases. This means that a plaintiff may recover damages even if the defendant was only 1 percent at fault, but any award is proportionally reduced to reflect the plaintiff’s comparative negligence. Here, the plaintiff’s final award came out to just over $27,000.
After the verdict, the plaintiff asked the judge to interview one of the jurors. The plaintiff said the juror “posted a series of tweets on his Twitter account during the days of jury selection and trial, which included the following”:
a. I got picked as a juror . . . I hate this s____ I'm so pissed, I even half assed all my answers and I dressed terrible. b. Being a juror isn't bad, people I'm working with are pretty cool. But I still hate the fact that I have to be here all day. c. Everyone is so money hungry that they'll do anything for it.
The plaintiff asked for a new trial, arguing the juror’s “misconduct” tainted the verdict. After interviewing the juror, the judge denied the plaintiff’s request. The plaintiff appealed.
In an October 5 opinion, the Florida Fourth District Court of Appeal affirmed the trial judge’s decision. The Fourth District noted that “no Florida court has directly addressed the issue of juror misconduct arising from the use of social media during a trial.” In this case, the “misconduct” of the juror’s tweets “was neither intentional nor willful, and that none of his tweets related specifically to this case.”
Even the third tweet–“Everyone is so money hungry and they’ll do anything for it”–was taken by the trial judge and the Fourth District as an expression of the juror’s general views, which he stated during voir dire, that many people file lawsuits “just for the money” or other “dumb reasons.” The Fourth District said this was not enough for the plaintiff to establish the juror was prejudiced against her, and therefore she was not entitled to a new trial.
Assessing the Prejudicial Effect of Jurors’ Twitter, Facebook Posts
Although the Fourth District cited no previous Florida case on this subject, it did look to a number of other court opinions from around the country. Here is a brief overview of some of those cases.
United States v. Fumo
Going in chronological order, the first case is a 2011 decision from the U.S. Third Circuit Court of Appeals in Philadelphia. This was a criminal case. The defendant, a former Pennsylvania state senator, was tried and convicted on various charges related to the corruption of his public office. While the jury deliberated, a local television station discovered one of the jurors had made several posts about his jury service to his Facebook “wall.”
The posts themselves did not offer any specific details about the trial. The trial judge described them as “so vague as to be virtually meaningless.” For example, in one post the juror said, “I can’t believe tomorrow may actually be the end!!!” In another, he said, “Stay tuned for the big announcement on Monday everyone!”
The Third Circuit agreed with the trial court that nothing in these Facebook posts prejudiced the juror against the defendant. Accordingly, as in the Florida case, the appeals court denied the defendant’s request for a new trial.
Dimas-Martinez v. State
The next case, also from 2011, involved an even more serious criminal matter. An Arkansas jury found the defendant guilty of capital murder and sentenced him to death. On appeal to the Arkansas Supreme Court, the defendant argued he was denied a fair trial due to the misconduct of two jurors: one who slept through part of the testimony, and another who made posts to his Twitter account during the trial.
The Supreme Court held that both jurors’ misconduct justified setting aside the defendant’s conviction and granting him a new trial. With respect to the Twitter issue, during the sentencing phase of the trial, the defense informed the judge that the juror posted the following message to his account, shortly after the close of evidence:
Choices to be made. Hearts to be broken. We each define the great line.
After the judge questioned the juror, the defense moved to strike the juror from the panel. Given that the juror expressly disregarded the judge’s pre-trial instruction “not to tweet about the case,” the defense argued he was disqualified from continuing on the case. The judge rebuffed the defense, holding there was no “material breach” of his instructions.
But the Supreme Court said this was not a trivial matter. In fact, the juror continued to tweet even after he was questioned by the judge. As a result, the Supreme Court noted a media reporter, who was following the juror on Twitter, “had advance notice that the jury had completed its sentencing deliberations before an official announcement was made to the court.” The Supreme Court said this was “unacceptable” conduct.
J.T. ex rel. Taylor v. Anbari
Moving ahead three years to 2014, the Missouri Southern District Court of Appeals held that the following Facebook comment by the foreperson of a jury in a medical malpractice lawsuit did not constitute misconduct warranting a new trial:
Sworn to secrecy as the details of this case. Most importantly there is no beverage service and the 3pm cocktail hour is not observed!
As in the Arkansas case, the plaintiffs argued the juror failed to follow the trial judge’s instructions not to tweet about the case. But the Southern District concluded the foreperson did not actually make a comment “about this case.” All he said was that he was serving on a jury. The court reasoned the post was no more harmful than telling a “supervisor or co-workers they would not be at work because they had jury duty.”
United States v. Gainas
In the final case, also from 2014, the U.S. Second Circuit Court of Appeals in New York addressed the impact of Facebook comments made by a juror in a criminal tax evasion trial. The juror in question posted throughout the trial:
Jury duty 2morrow. I may get 2 hang someone ... can't wait. Shit just told this case could last 2 weeks. Jury duty sucks! Your honor I object! This is way too boring, somebody get me outta here.
The defendant, who was convicted, argued these posts and the fact that another juror “friended” the juror in question on Facebook violated his right to a fair trial. The Second Circuit rejected that claim, although it did reverse his conviction on other grounds.
As far as the juror’s Facebook posts were concerned, the Second Circuit said there was no evidence that the juror was biased or failed to deliberate “in good faith.” And while one juror friending or following another on social during a trial might “threaten a defendant’s Sixth Amendment right to an impartial jury” in some circumstances, that was not the case here.
Third Circuit Senior Judge Richard Lowell Nygaard, in a concurring opinion to the Fumo decision, summed up the problems with mixing social media and jury duty as follows:
Technology, of course, will continue to evolve and courts must creatively develop ways to deal with these issues...We must first educate jurors that their extra-curial use of social media and, more generally, the Internet, damages the trial process and that their postings on social media sites could result in a mistrial, inflicting additional costs and burdens on the parties specifically, and the judicial system generally. [...] Not only are jurors tweeting, but they have been conducting factual research online, looking up legal definitions, investigating likely prison sentences for a criminal defendant, visiting scenes of crimes via satellite images, blogging about their own experiences and sometimes even reaching out to parties and witnesses through "Facebook friend" requests.
While the rules governing jurors and social media will vary from state to state–and even court to court–there are a few basic things to keep in mind if you are ever serving on a jury:
- The names of jurors are generally known to the attorneys in the case as well as the press. Always assume that these individuals are monitoring your social media accounts for evidence of improper posts.
- Do not use social media as a tool to "research" information relevant to your case. Under no circumstances should you ever follow or friend a party, witness, attorney, or media member involved in the case.
- Do not friend or follow your fellow jurors on social media until after the trial is over. The mere act of following may convey to the litigants the impression that you are discussing the case outside of court.
- If you notice any unusual activity on your social media accounts--say, a journalist or attorney you don't know is following you--consider informing the judge. This may be an improper attempt to learn about your thinking regarding the case or the jury's deliberations.
- Always follow the trial judge's instructions regarding social media. If you have any doubt as to whether a Twitter or Facebook post is inappropriate, ask the judge first. And frankly, if you have to ask, it's probably inappropriate.