Miscellaneous

Anti-Social Media

By Anne Skove, Esq.

Most of the hype surrounding potential jurors' use of social media is just that -- hype.

We are reminded of similar issues surrounding court technology generally. The basic rule is this: high tech is not so different. For example, electronic records are the same as those on paper -- the same rules apply. If there's something in an electronic record that ought not be there, perhaps that item shouldn't be in the paper record, either. Access is access, even if it's quicker today than ever.

The second rule: don't draft rules that reference a specific type of technology. For example, "cameras in the courts" - type rules usually refer to "recording devices," not "8-track tape recorders," for good reason!

So the social media frenzy is not such a big deal after all. To fit into the first type of rule, judges may but need not remind jurors to stay off facebook, twitter, and the like. The rule is the same as it ever was: do not discuss the case.

To meet the requirements of the second type of rule, judges admonishing jurors need not reference specific types of social media. Yesterday's fnet is today's facebook, and tomorrow will bring yet another e-forum. Judges familiar with these might mention them by name for example's sake, but should keep the changing nature of the field in mind when drafting an instruction.

Those pondering juror questionnaires are giving facebook and friends some thought. See, e.g., Online News-Story Commenters Face Scrutiny As Would-Be Jurors," Josh Farley, Kitsap Sun (October 30, 2010). But again, this is the same question we've always asked the pool -- have they seen/heard coverage of the case, and have they made up their minds about it?

Meanwhile, we don't think we'll get on a jury any time soon.

Full post as published by court-o-rama.org on November 01, 2010 (boomark / email).