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I have written about the problems arising when jurors post comments on Facebook and other social networking sites during a trial. Now a survey from Reuters Legal reveals some troubling statistics regarding the extent of the problem. According to the survey, since 1999, at least 90 verdicts have been challenged due to internet-related juror conduct, with at least half of those challenges occurring in the past two years. Courts granted new trials or overturned verdicts in 28 of the cases, and in the majority of the cases where a court did not declare a mistrial, it nonetheless found internet-related misconduct on the part of jurors.

While courts and attorneys struggle with the best ways to prevent and curb jurors from researching legal issues on line or commenting on active trials, other suggest that it’s unrealistic to do so when so many people can’t seem to get through their day without posting something on Facebook. As usage of social networking sites continues to explode, and shows no sign of slowing down, these issues will continue to plague the judicial system for years to come.

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As more courthouses offer wireless Internet access, trial attorneys and those assisting them now have the ability to hop on the internet during jury selection and check out the potential jurors in front of them. Legal Productivity has an interesting article offering tips for trial lawyers on using information on jurors’ social networking sites to disqualify jurors. As the author points out, a juror’s posts and tweets on Facebook and Twitter, for example, can provide attorneys with a wealth of real-time information that may help them knock out bad juror candidates.

However, those attorneys who don’t come to court with laptops or Smartphones may not appreciate their adversary’s ability to quickly get this information and may challenge their right to do so. That was an argument raised by defense counsel in Carino v. Muenzen, a recent medical malpractice case from New Jersey. Before the trial, the New Jersey court sent out a press release advising that the court now offered wireless Internet access to “maximize productivity for attorneys.” and other court users. Taking advantage of that access, the plaintiff’s counsel searched the Internet for information about potential jurors during jury selection. Defense counsel objected, and the trial judge directed the plaintiff’s counsel to close his laptop. Since plaintiff’s counsel had had not told defense counsel before the trial that he intended to use his laptop for this purpose, the trial judge believed that plaintiff’s counsel had an unfair advantage during jury selection. 

Plaintiff’s counsel appealed, and the appellate court reversed the trial court’s ruling. Its rationale? Because the court had announced the availability of wireless Internet access in the courthouse before trial, and there was no state court rule requiring a lawyer to notify the court or an adversary about its use of the Internet at  trial, the appellate court found that plaintiff’s counsel did not have an unfair advantage during jury selection.

Lessons learned: First, when trial is approaching, check whether the court offers wireless Internet access as well as any rules regarding jury selection and trial computer use.  If it’s permitted, search away!

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Despite explicit instructions from judges to jurors that they are not to comment about a case or do outside research, here’s the latest example of jurors posting comments on Facebook during a trial.   In this instance, the conviction of a teenager for rape hangs in the balance. Lawyers for the defense seek to subpoena the jury foreperson’s Facebook records to determine if the jurors had outside information that influenced their decision to convict the teen.

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